One Baby, Three Parents: Whose Rights Prevail? : Law: The birth mother is on equal standing with the genetic mother and father; the child’s interests must come first.

It’s been decades since the American family could be described as one working father, one homemaking mother and several--usually two to four--kids. In recent years, the definition has expanded to include divorced parents, extended step-families, gay and lesbian couples and their children, and now in a new twist, adults brought together by virtue of a surrogate parenting contract. What’s new about this familial relationship is that it involves three people who can accurately claim to be the actual parents of one baby.

In the most recent surrogacy case to make the news, an Orange County couple, Mark and Crispina Calvert, contracted to implant Anna L. Johnson with an embryo that consisted of the egg and sperm provided by the Calverts. About seven months into the pregnancy, Johnson decided she had grown attached to the fetus and wanted her parental rights protected. The baby, born in late September, is now the subject of a custody dispute between the Calverts and Johnson.

The man and woman who provided the sperm and egg clearly are parents. And the woman who provided her womb and physically nurtured and gave birth to the baby, and in the process bonded with it, clearly is a parent. The reality of these three claims challenges our notions about parenthood and families. And it’s the confusion generated by this challenge that has led to debates about who the rightful parents are.

The answer to that question is clear: All three individuals are parents. The complicated question is: Who should get custody of the child? That’s what the court must decide. There are a few fundamental truths that can and should be used as guidelines to help the judge, and the rest of us, arrive at a conclusion that is fair and just.

Fact: As the Supreme Court has confirmed, women have the right to reproductive choice. This means that a woman has the right to get pregnant, or to not get pregnant, or to terminate a pregnancy. She also has the right to get pregnant with the intention of giving up custody rights.

Fact: The woman who is bearing the child, whether she is the genetic mother or the birth mother, is a parent to that child. Like any other woman who has given birth to a child, she can give up her parental rights after--and only after--the child is born. However, the genetic father and mother have no guarantee that the birth mother will relinquish her parental rights and have no entitlement to exclusive enjoyment of parental rights.

Fact: Every person--including any child born as a result of a surrogacy agreement--has the right not to be sold as chattel. Although a woman can be compensated for giving birth to the child and for lost wages and other expenses incurred by her in the process, she cannot sell that child. Provisions of surrogacy agreements that condition payments to the birth mother upon her relinquishment of parental rights are therefore void.

Fact: Contracts that waive a woman’s rights are void and unenforceable. A pregnant woman cannot be forced to have an abortion, nor can she be prevented from having an abortion by any third party.

If, upon birth of the child, the birth mother decides not to relinquish her parental rights, she and those sharing genes with the child must all be recognized as the child’s legal parents. If a custody battle ensues in court, parental rights, visitation rights and custody should be determined by the same principle normally applied to such disputes: What is in the best interest of the child?

In the Orange County case, the judge may rule that it’s in the child’s best interest for the Calverts to have primary custody, or it may be in the child’s best interest to grant Johnson primary custody. The judge could even develop some form of joint-custody agreement that gives proper weight to the unique, yet genuine, parental claims made by both parties.

Bioengineering has created new and complicated family arrangements, but the basic rules of integrity that guided us in the past are still useful in new custody dilemmas. People who get involved in surrogacy relationships should be aware that they are full of opportunities for disaster and dashed expectations.