COMMENTARY / Surrogates : Judging Legal Rights and Wrongs in Johnson-Calvert Case : Lawmakers must address the unprecedented issues raised in the surrogate baby custody trial, says the court-appointed guardian for the boy with three parents. The judge was right in refusing to play Solomon.

When I was appointed the guardian ad litem for the baby in the Calvert-Johnson surrogate case, my responsibility was to focus on his welfare throughout the legal proceedings. I was not fully prepared for the precedent-setting implications of this case, the national media frenzy, nor the emotional roller-coaster ride I would experience.

I’ve spent a lifetime dealing with people who beat, neglect, abuse, abandon or exploit their children. This time I was asked to deal with three people who had a role in giving this baby life, and all three passionately expressed love for him. What an interesting twist.

In my first phone call from St. Joseph Hospital during the actual birth on Sept. 19, I verified that blood had been drawn from the baby’s umbilical cord to obtain DNA testing to determine whether the Calverts were truly his genetic parents.

I also authorized access to the baby for Mark and Crispina Calvert and Anna L. Johnson, the surrogate mother, and informed the nurses that the baby was not to be removed from the hospital by anyone without a court order.

At this point it was imperative to protect this tiny child’s right to privacy. This controversial case was taking on the dimensions of a three-ring circus, with the child becoming a helpless pawn. I believed strongly that this child had the right to enter the world with a sense of dignity and without constant public exposure.

As children grow up they need to know their roots. It helps to strengthen their sense of identity and their sense of belonging. In this situation, the child’s sense of belonging was under assault. It was within this context that Harold F. La Flamme, the baby’s attorney, obtained a court order to guarantee his right of privacy.

Then Superior Court Judge Richard N. Parslow Jr. attempted to make some sense out of the chaos. Attorney Richard Gilbert argued passionately for the surrogate mother, asking for parental rights and joint custody. With just as much emotion, attorneys Christian Van Deusen and Robert Walmsley represented that this arrangement was untenable for the Calverts. In the middle was La Flamme, who repeatedly focused on the legal and statutory issues which define parenthood.

When the attorneys were unable to come to any agreements, Judge Parslow asked for my recommendation. I felt that the baby should not remain in the hospital, nor should Social Services assume custody of the child. While I did not want the baby with strangers, it seemed that placement in a foster home was the only option, because placing the baby with either Johnson or the Calverts with these legal matters unresolved could result in greater heartbreak later if permanent custody was awarded to the other party.

This option became unnecessary when Johnson dramatically announced that she would agree to an interim placement of the baby with the Calverts. Daily monitored visits for Anna and a two-week trial followed.

Within a few hours after I left the hospital with the baby and presented him to an ecstatic Mark and Chris Calvert, Anna Johnson arrived with her 3-year-old daughter for her first monitored visit. These folks had not seen one another for months, a lawsuit had been filed and harsh words had been exchanged, so it was no surprise that things were tense and awkward at first. But this began to melt away to some extent when everyone’s focus shifted to the baby. I thought perhaps he could be a peacemaker and that the Calverts and Johnson might come to some agreement independent of the judicial system and the attorneys’ agendas.

My optimistic viewpoint dimmed, however, as the trial proceeded. There was enough finger-pointing to last a lifetime, and harsh appraisals were offered of both the Calverts and Johnson. But by remaining nonjudgmental I became warmly connected to everyone involved. Mark and Chris are a beautiful couple, generous and kind and from my perspective incapable of “fetal neglect.”

Anna Johnson is an intelligent, friendly person who somehow was swept up in events as a result of a relationship that went astray. In all of her contacts with the baby she was attentive and nurturing. Whether I agreed with her position or not, I did feel that Anna felt a special relationship with the baby, which needed to be understood and recognized.

When I began to feel that daily visits were untenable and that tension was being communicated to the baby, I recommended that visits be reduced to twice weekly.

I spent a portion of the visits talking with Anna about bonding and just what she meant by shared parenting. I was presented with an analogy comparing this situation to a divorce, with three people sharing custody.

But privately I considered that children of divorced parents have many conflicting loyalties and often become pawns of even well-intentioned parents. I doubt that these children would select this option for themselves, and I couldn’t imagine why Judge Parslow would consciously choose what could be a no-win situation for this baby.

I don’t mean to minimize the bonding experience of carrying a baby to term or the importance of breast-feeding, but in my opinion bonding is an evolving and lifelong process. I’ve learned that there is no guarantee that the birth mother will possess the mothering instinct or that bonding will automatically occur.

By the same token, simply conceiving a child, as the Calverts did, doesn’t necessarily make one a parent, either. As a father of five children, I believe that raising a child over a period of years is the essence of parenting.

But whatever my opinions, or the opinions of experts during the trial, the crucial point is that Judge Parslow made a courageous, pro-child decision, refusing to split the baby, either legally or emotionally, between the Calverts and Johnson.

This child needs a sense of identity, to learn who he is, and he needs a sense of belonging. Most importantly, as this little boy grows up, he needs to understand that he is the result of extraordinary efforts to bring him into this world.

Many lessons were learned along the way with regard to parental rights, bonding, the enforceability of surrogate contracts and other issues. Unless legislatures address the public policy implications of surrogacy, however, the lives of children that result from these unions will continue to hang in the balance.

Whatever the outcome of court appeals, a family in Tustin needs to get on with its life, and a baby needs to grow and thrive in a less public environment. In the meantime, five weeks after his birth, Christopher Michael Calvert has his identity, and his birth certificate is no longer blank.