Genetic Parents Given Sole Custody of Child : Surrogate: Judge rules that the woman who bore an infant for an infertile couple has no rights to the boy.

In a case that attracted national attention, a judge ruled Monday that surrogate mother Anna L. Johnson has no rights at all to the baby she bore for an infertile couple and granted exclusive custody to the infant’s genetic parents.

The decision by Orange County Superior Court Judge Richard N. Parslow Jr., which sprang from a highly emotional custody dispute, marked the first time in the nation that a judge has had to decide the rights of a surrogate mother who is genetically unrelated to the baby she bears. In most surrogate arrangements, including the famous Baby M case in New Jersey, a woman’s own egg is artificially inseminated, so she is the child’s genetic mother.

The judge agreed with Mark and Crispina Calvert, who hired Johnson to carry their embryo because Crispina had had a hysterectomy, that the couple’s genetic relationship to the baby makes them the only true parents.

“We never set out to make history or set precedent,” said Mark Calvert, 34. “We just wanted to have a baby. We are just so glad that we have our son.”

Parslow rejected Johnson’s argument that she should be considered a legal mother of the 5-week-old baby boy because she gave birth to him. He said a surrogate who is genetically unrelated to the child she carries does not acquire parental rights by virtue of having given birth to it.

Parslow said the couple should not have to share parenting with Johnson, and he terminated the temporary, twice-weekly visitation privileges he had granted earlier.

As it became clear they had won, the Calverts embraced and Crispina Calvert, 36, wept quietly in her husband’s arms. Their son’s birth certificate has been blank since he was born Sept. 19, but the couple said they would now have his name--Christopher Michael--placed on the document.

Johnson, 29, who had predicted she would lose in the trial court, was not present to hear the decision. She told the baby’s court-appointed guardian that she “did not want to come to an execution.”

Johnson’s lawyers immediately vowed to appeal.

“When the judge screws up at the trial level, it’s the baby that takes the fall. And he screwed up,” Richard C. Gilbert said at a news conference. “No thinking person is going to stand for this in the long run.”

Johnson, a single mother of a 3-year-old daughter, said tearfully that she was “heartbroken.”

“I’m in a deep state of mourning for my son,” she told reporters. “He will always be my child. No matter what they call him, he will always be my Matthew.”

The Calverts’ lawyer, Christian R. Van Deusen, hailed the decision as a triumph for reproductive freedom and rejected Johnson’s contention that it heralds a trend of turning women into “incubators.”

“Males can sell their semen,” he said. “Then why can’t women as a matter of law have the right to become a nine-month foster mother by carrying another couple’s child?”

Parslow also ruled that surrogate contracts such as the one in this case--in which an infertile couple hires a surrogate to gestate an embryo made from their own sperm and egg--are legal in California and are not counter to public policy. No judge in California has ever ruled on the validity of any kind of surrogate contract.

In a 35-minute address to a hushed, packed courtroom, Parslow said Johnson’s role was like that of a foster parent who cares for a child while the “natural mother” is unable to do so. Parslow said Johnson made a “substantial contribution” in helping the child come into the world, but that she was an “intelligent” woman who signed the $10,000 surrogate contract knowingly, understanding she was to relinquish the child to the Calverts.

The judge had been likened by an attorney to King Solomon, who determined which of two women was the true mother of a baby by threatening to cut the child in half. Parslow addressed that comparison in declining to declare all three adults the baby’s legal parents.

“In an increasingly anti-child, ‘I’m-for-me-first’ society, I think the decision I’m making in this case is definitely pro-child,” Parslow said. “I decline, as I say, to split this child emotionally between two mothers,” he said, adding that three-parent arrangements could result in protracted, bitter disagreements and “invite emotional and financial extortion.”

William G. Steiner, who was appointed as the baby’s guardian to help assess the best interests of the child, welcomed the decision, praising Parslow for protecting the infant from emotional trauma.

“The baby was the winner,” Steiner said. “This baby needs a consistent figure in his life. He doesn’t need the tension and the turmoil of being pulled between three people.”

Harold F. LaFlamme, the infant’s court-appointed lawyer, said the decision was the right one. But he said it creates thorny civil rights questions for those who would enter into similar situations. For instance, he wondered, if a pregnant surrogate wanted to have an abortion, could the genetic parents legally stop her? If she wanted to smoke, drink or “move to New Zealand,” could they restrict her?

“How are we going to do that in a free society?” LaFlamme asked.

Johnson, a licensed vocational nurse, sued the Calverts on Aug. 13 and sought custody of the baby, contending they neglected her during the pregnancy and would not make fit parents. She also argued that she developed a bond to the child that entitled her to keep him.

The Calverts’ lawyers had questioned the sincerity of that bond, noting that Johnson had told several people that she did not feel connected to the baby, and consistently represented to the Calverts that she was carrying their child. Parslow agreed Monday, saying there is “substantial evidence” that she never bonded with the infant “until she filed her lawsuit, if then.”

Parslow’s decision was blasted and praised by expert observers. Ramona Ripston, executive director of the American Civil Liberties Union of Southern California, which favored a three-parent finding, said that the ruling “simplifies” childbirth into a “business contract” and “condones baby selling.” Jeremy Rifkin, co-chairman of the National Coalition Against Surrogacy in Washington, said the decision will make it easier for rich couples and surrogate parenthood brokers to “solicit black and brown women” to use them as “breeders.”

But attorney William W. Handel, co-director of the Center for Surrogate Parenting in Beverly Hills, said it upholds the principle that women are entitled to do what they choose with their reproductive powers. New Jersey lawyer Gary N. Skoloff, who represented the contracting parents in the Baby M case and who is chairman of the American Bar Assn.’s family law section, said the decision preserves a valuable option for the 10% to 15% of married couples who cannot bear their own children.

Parslow urged the state Legislature to pass a law permitting surrogacy, but to regulate it so all parties are protected.

Times staff writer Jim Newton contributed to this report.

NEXT STEP

Lawyers for surrogate mother Anna L. Johnson are expected to ask the 4th District Court of Appeal in Santa Ana to modify or reverse Superior Court Judge Richard N. Parslow’s decision. The appeal process is likely to take more than a year. The hearing transcript must be prepared, trial briefs must be written and answered, and the justices might ask to hear oral arguments. Genetic parents Mark and Crispina Calvert now have exclusive custody of the baby. There will be no Superior Court hearing to determine custody or visitation rights, since Johnson was denied parental rights. All issues in the case will now be handled by the appeals court.