Ruling Gives Surrogation Legal Boost : Courts: Such contracts are not inherently exploitative, the judge says.

In ruling that Anna Johnson has no parental right to the child she bore, an Orange County judge Monday gave a somewhat brighter green light to the still-rare practice of surrogate parenting.

Superior Court Judge Richard N. Parslow Jr. said in essence that it is not inherently exploitive for a couple who cannot have children on their own to rent the body of a third person to make childbearing possible.

In doing so, he aroused the ire of surrogate parenthood opponents, who say the practice carries with it too much potential for exploitation of poor women serving as human incubators for the well-to-do.

Some legal scholars believe that unless legislatures act to curb the practice, an industry will develop that will exploit Third World women as gestational surrogates for the wealthy who either cannot carry a child for medical reasons or simply do not want to.

“If the green light is given to gestational surrogacy, that will certainly occur,” said Martha Field, a Harvard Law School expert in surrogate arrangements.

Supporters, however, applauded the ruling. Only one other U.S. court, in New Jersey, has upheld the validity of a contested surrogation contract between a couple who wanted a child and the woman they paid to help bear it. That ruling, in the celebrated Baby M case, was reversed on appeal when the New Jersey Supreme Court said such a contract is invalid.

Should Johnson appeal her case, experts say, Parslow’s reasoning could be overturned, but is it less likely that a court would change the order awarding custody to the genetic parents, Mark and Crispina Calvert.

That is because the judge, as part of his ruling, withdrew Johnson’s permission to visit the child. The child will therefore know only the Calverts as his parents, and appellate courts may decide it is in the child’s best interests to remain in the situation to which he has grown accustomed.

Something similar happened with Baby M. The New Jersey Supreme Court said that even though it disagreed with the lower court’s decision, it was too late to change the child’s living arrangements.

In the future, however, that state’s high court warned, children should not be removed from the custody of their birth mothers while a custody dispute in a surrogate birth case is being litigated. That court said the birth mother should have custody because that would be in best interest of child.

Because Parslow is a lower court judge, his opinion is likely to be influential but not binding on other courts, even in California.

In delivering his ruling, the jurist spoke for a half hour from notes to a courtroom packed mainly with reporters. To his right was a sign that could have stood for this case. It says, “When Life Gives You Lemons, Make Lemonade.”

Parslow began his delivery by acknowledging the strangeness of modern reproductive technology, which is to say it sometimes takes three to tango.

He compared Johnson’s role to that of a “foster parent” who knows she will take care of the child only for a while. He stressed that Johnson has no genetic link to the baby, now 5 weeks old. Therefore, Parslow said, Johnson had no parental rights. Even if she had had such rights, he said, she relinquished them by knowingly signing a contract that clearly spelled out her intention to give up the baby.

Parslow characterized his decision as “pro-child” and said he would not confuse the boy by declaring that he has two mothers. “I decline to split this child emotionally between two mothers,” Parslow said.

Parslow acknowledged that his ruling clashes with a California statute that says whoever gives birth to a baby is its mother. He said that the Legislature, in failing to revise that statute, has failed to keep up with changes in reproductive technology, leaving the courts to deal with them.

The judge made clear that the logic of his ruling applies only to a gestational surrogate such as Johnson, a much rarer type of surrogate than one who supplies her own egg. In the more common type, the egg is fertilized with the sperm of the intended father, and the baby is surrendered to the father and his wife at birth.

Parslow thus left open the possibility that his ruling might have been different had this been a case involving a regular surrogate who had had a genetic relationship to the baby.

As far as could be determined, Parslow is the first judge to decide a contested case involving a gestational surrogate.

Marjorie Shultz, a professor of law and medicine at UC Berkeley and a supporter of surrogate childbearing, applauded the result of the judge’s decision but not his reasoning. Shultz said she disagrees with the judge’s primary emphasis on the genetic tie of the child to the Calverts as a reason to award them exclusive custody.

She said that in an age in which science has allowed people to take greater charge of their procreative functions, people should be encouraged to make decisions and, if necessary, have them enforced by courts. Therefore, she said, their intentions--in this case expressed in a written contract--should be honored as the key factor in a judicial evaluation, whether or not the intended parents are genetically related to the child that is produced.

She rejected as too paternalistic the notion that women as a class need to be protected from serving as surrogates. “If you start saying that a whole class of people--in this case women--are somehow incapable of making decisions, you’re in a very bad spot,” she said.

Shultz said that the traditional safeguards of contract law--principles, for example, that invalidate an agreement signed under duress--are sufficient to protect the interests of surrogates who are conned or coerced into carrying someone else’s child.

Many surrogates say they serve for a combination of altruistic and financial reasons.

Field, the Harvard expert, acknowledged that the industry is small. There are are only a few hundred surrogate-parent pregnancies per year, whereas there are tens of thousands of adoptions. But she said she fears encouraging surrogate arrangements is a bad public policy, in part because it would eventually reduce the number of adoptions and thus increase the number of orphans.

“If courts start enforcing surrogacy arrangements,” she said, “it will encourage people to think of surrogacy as an available option--a way for a childless couples to have a genetic link to child.”