Decision Hailed as Proper, Criticized as Outrageous

To infertile couples, the Johnson v. Calvert decision promises brave new babies created in petri dishes, incubated in hired wombs and handed over to their genetic parents--all under the protection of the law.

To surrogation foes, the decision heralds “a modern version of reproductive slavery” in which poor women will become “breeders” for rich couples.

But to surrogate mother Anna L. Johnson, Monday’s decision granting exclusive custody to genetic parents Mark and Crispina Calvert means that she may never again see the baby she carried.

There was absolute silence in the packed courtroom Monday as Orange County Superior Court Judge Richard N. Parslow Jr. explained his decision to favor nature over nurture in defining parenthood.

Outside the courtroom, the decision created an instant uproar, with lawyers, scholars, surrogate-brokers and ethicists all sharply divided by the decision. All agreed, however, that Parslow’s reliance on rights of the genetic parents will shape surrogation rulings for some time to come.

“It certainly is a landmark decision, and it gives a new description or a new interpretation on who is a mother,” said Ralph Fagen, director of the Center for Surrogate Parenting in Beverly Hills. “The reaction we are getting from infertile couples is ecstatic. Today was the first public, official affirmation of what parental rights are.”

Fagen said the case has drawn interest from would-be surrogates as well as from infertile couples. He said the number of women applying to the center as surrogates has nearly doubled since the Johnson case was filed.

“People have felt that Anna Johnson had wronged this couple,” Fagen said.

William W. Handel, Fagen’s partner, said that at least one couple had been waiting until Parslow’s decision to go ahead with a surrogation contract and that now they will proceed.

However, Jeremy Rifkin, founder of the National Coalition Against Surrogacy in Washington, D.C., called the decision “outrageous,” warned that it would exacerbate racial tensions, and vowed that he would work to have it overturned.

“It is a modern version of reproductive slavery,” Rifkin said. “We will now have poor black women being used as breeders or slaves to produce children for white people. The baby brokers and clients are going to be relying on poor blacks. We will redouble our efforts to bring the black leadership and the civil rights leaders in this country into this battle.”

Handel, whose standard surrogation contract was used by the Calverts, rejected the argument that hiring surrogates is exploitive.

“It’s no more exploitive than any other endeavor in which people are compensated for the work they do,” Handel said. “You can hire a man to be a surgeon. You can hire a woman to be a professor. You can have men donate semen. So you should be able to hire a woman to provide a surrogacy service as well.”

“I want my parental rights,” said Johnson, who said she was “heartbroken” by the decision. “They’ve stripped me of my constitutional rights.”

Laywers and ethicists, however, said the genetic link between the natural parents and the child has traditionally been respected, absent evidence that the natural parents are unfit.

“Biology must count in determining parenthood,” said Arthur Caplan, director for biomedical ethics at the University of Minnesota at Minneapolis. “There are reasons for taking away parental rights, but simply having someone act as a gestational mother . . . should not be sufficient to void the claims of the biological parents.”

“We always prefer the biological parents,” said Harvard University law professor Arthur Miller. “It’s almost like the surrogate has been running upstream against the historical presumption. . . . What you are talking about with the surrogate is an eight-, nine- or seven-month period of time against the genetic pull.”

The baby’s court-appointed attorney, however, sees it more starkly.

“You either have two parents or three parents in this situation, and two parents are better,” said attorney Harold LaFlamme, who applauded Parslow’s decision.

In his ruling Monday, Parslow offered suggestions to the California Legislature, which, like others around the nation, has been struggling to establish a code to cover reproductive options that until recently had been unimaginable.

“The in vitro fertilization genie is out of the bottle, and you’re not going to be able to put it back,” Parslow said.

Alexander M. Capron, a renowed medical ethicist who teaches law and medicine at USC, acknowledged that infertile couples need options but said that forcing a woman to comply with a contract to give up a child she bore “turns a child into a commodity and a woman into a machine.” Surrogate mothers should be accorded the same right as women who surrender children for adoption, Capron said: that is, they should have a guaranteed right to change their minds.

“We as a society must recognize the fact that (the surrogate mother) is a flesh-and-blood person and not an incubator,” Capron said.

Lori B. Andrews, an American Bar Foundation research fellow specializing in reproductive technology, said she believes that Parslow’s decision is the proper outcome, but she said she is “uneasy” with its emphasis on genetics as the primary test of parenthood. The intent of the parties in a surrogation contract, before the child is conceived, is what should determine parenthood, Andrews said.

“It’s an extremely masculine way to view parenthood, to base it all on genetics,” Andrews said. “The only way to give men parental rights, since they don’t physically bear children, is through a genetic tie. That’s how that body of paternity law evolved. But it’s not necessarily a good thing to apply the same standard to a birth mother.”

She said the genetics-based logic could work against couples who have children through “embryo donation,” in which one couple’s fertilized embryo is given to another couple who cannot provide their own sperm and egg. In that case, the recipient couple seek to become the parents, but they are unrelated to the baby the female partner carries.

Johnson’s position was buttressed by George J. Annas, director of the law, medicine and ethics program at the Boston University Schools of Medicine and Public Health. Annas favors the legal presumption that a birth mother is the legal and natural mother of a child. That presumption, he said, provides for an immediate and certain identification of a baby’s mother, and it assures the presence of the “mother” to care for the child upon birth, as opposed to a prolonged period of uncertainty should the infant be the object of a parentage dispute.

Parslow suggested that only women who have carried a child to term should be permitted to enter into surrogation contracts, so that the woman would have had some experience in dealing with the emotions pregnancy brings.

The judge also said he would require the natural mother to be medically unable to bear a child to avoid “a vanity situation of somebody seeking to avoid stretch marks.”

A case involving a fertile woman who wishes nonetheless to have a baby borne by a surrogate would be a “predictable” outcome of the Johnson case, bioethicist Caplan said.

“We know what the ethical problems are. We haven’t yet shown the societal resolve to come up with some answers, so we are leaving it up to courts,” Caplan said.

Without a coherent federal standard, Caplan warned, the 50 states might adopt contradictory policies on surrogation. “Whether or not you’re a parent could be function of which side of the state line you’re on.”

Times staff writers Catherine Gewertz and Lynn Smith contributed to this report.