Surrogate Lets Baby Go to Couple Temporarily : Hearing: Anna Johnson agrees to surrender custody to pair rather than place child in foster home.

In an arrangement that was likened to the biblical tale of King Solomon, surrogate mother Anna L. Johnson tearfully agreed Friday to surrender temporary custody of the baby she bore to the infertile couple who hired her.

The agreement will allow Mark and Crispina Calvert, who donated the sperm and egg that were implanted in Johnson, to take the baby boy home from St. Joseph Hospital today and keep him until another custody hearing can be held Thursday. The couple smiled and hugged each other in court when they heard the news.

“We’re overjoyed,” Mark Calvert told a crowd of reporters. “This is the happiest day of our life.”

In a related development Thursday, the Calverts’ lawyer said that preliminary results from blood tests showed a “greater than 99% certainty” that the infant, who weighed 6 pounds, 10 ounces at birth Wednesday, was the Calverts’ child. DNA tests were expected to confirm that result next week.

Johnson, 29, is the first surrogate mother to ask a judge for custody and parental rights to a baby that has no genetic relation to her. Crispina Calvert, 36, cannot bear children because her uterus had to be removed.

Lawyers who huddled behind closed doors with Superior Court Judge Richard N. Parslow Jr. for five hours said the judge was about to place the baby in a foster home because the two sides could not agree on a custody arrangement and he did not want to give anyone a “bonding advantage.”

The Calverts dug in their heels, flatly refusing to allow Johnson to take the baby home with her, attorneys said. That left two choices: The baby could be placed in a foster home that had been chosen by his guardian, or he could go home with the Calverts.

It was Johnson, calling from the hospital in tears, who broke the standoff.

“Anna couldn’t live with the idea of her child being in a foster home,” said her lawyer, Richard C. Gilbert. “Anna is a mother. She saw her baby in danger, and like any mother, she did what she could to save it. She said, ‘Do anything to keep him out of the foster home.’ ”

Attorneys who attended the in-chambers hearing said that when Gilbert relayed Johnson’s sentiments to Parslow, the judge observed that Gilbert made it sound as if Johnson were the heroic mother in the tale of King Solomon, who offered to cut a baby in half because two women both claimed to be its mother. In that Bible story, the infant’s true mother preferred to surrender her child to the other woman rather than see it harmed.

“The judge said, ‘So, this is something like Solomon, where one party stands up and says don’t tear up the baby?’ ” Gilbert said, paraphrasing the judge. “Maybe that person has to be thought of more highly for doing that.”

The infant’s court-appointed lawyer, Harold F. LaFlamme, painted a slightly different picture. He said Johnson and Gilbert “just caved in” when they realized the judge would not give the baby to either party.

“If Saddam Hussein decides to withdraw from Kuwait, should he be considered a hero?” LaFlamme asked.

Although the temporary custody arrangement was agreed upon by all parties, Gilbert said he would file an immediate appeal. If the 4th District Court of Appeal decides to hear arguments on the case, Thursday’s custody hearing could be cancelled so lawyers can prepare, LaFlamme said.

Under terms of the current agreement, the baby will live with the Calverts, who want to name him Christopher Michael, and Johnson, who has been breast-feeding the baby while in the hospital, will be permitted three hours of visitation each day. The baby’s court-appointed legal guardian, William Steiner, said he will monitor those visits because there has been “a great deal of acrimony” between the parties.

Steiner, who has worked with abused and neglected children for more than 30 years and is executive director of the Orangewood Foundation, which raises money for a county home for such children, said this case is “the most complicated, toughest, most heartbreaking situation I’ve dealt with.”

Steiner said he wanted to avoid causing the child pain by giving it to one family and then having the judge decide, possibly, to award custody to the other later. So he recommended that the baby be placed in a foster home until the next hearing.

“I still have great reservations about how this will work out, with regard to the heartbreak, should the judge make a different decision later,” he said.

LaFlamme said all the lawyers have “a gentleman’s agreement” that the six days the baby spends with the Calverts will not be used to any party’s disadvantage in arguing over longer-term custody later. That effectively means the Calverts cannot claim they should keep the child by arguing that he had six days to bond with them.

LaFlamme said he still harbors hope that Johnson and the Calverts can resolve the entire case on their own by reaching some modified agreement on custody or by “one party backing down.”

If that happened, it would avert the need for a long string of court hearings seeking potentially precedent-setting decisions, such as whether Johnson or Calvert should legally be considered the child’s mother, and whether the $10,000 surrogate birth contract they signed is legal and enforceable. There are currently no laws in California designed to resolve those dilemmas.

But because the custody and parentage issues are not yet resolved, the space for “name” on the baby’s birth certificate remains blank.

Crispina Calvert, optimistic that she will get the keep the baby permanently, said she will now arrange to take a maternity leave from her job as a registered nurse.

Mark Calvert said he and his wife bear no grudges against Johnson and are “very grateful for her participation and willingness” to compromise on the temporary custody arrangement. He said that “under the circumstances, we feel it’s fair” to allow Johnson a lot of time to visit the baby.