AND BABY MAKES FOUR : Johnson vs. Calvert Illustrates Just About Everything That Can Go Wrong in Surrogate Births

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<i> Martin Kasindorf, a lawyer by training, is Los Angeles correspondent for Newsday</i>

Except for the clatter of helicopters approaching the Tustin Marine Corps Air Station nearby, the world surrounding tiny Christopher Michael Calvert is a soothing lullaby. From his crib in a house on a safe cul-de-sac, the 4-month-old can see a leafy tract neighborhood beyond the backyard swimming pool. Cooed over by Crispina Calvert’s family, the baby has almost too many loving relatives to count. Cris and Mark Calvert wheel their son in his stroller to a park just yards away, where 10 children under 2 years old form the social fulcrum of the suburban block. The Calverts first took Christopher Michael out his own front door in early November. He was 5 weeks old, and the TV news vans had finally left the street.

Some babies are premature. Black-haired Christopher Michael is prematurely famous. The infant, with his birth certificate blank for one month, was the object of the first courtroom battle anywhere over the literal meaning of the first word most American babies speak: “mama.”

The elementary, eons-old life process of motherhood has been fragmented by the exploding biotechnology of infertility. Sperm from the father and an egg from the mother now can be combined in a petri dish to produce an embryo nourished to birth by--what shall we call the helping woman, exactly? A living incubator? A nine-month baby-sitter? A new 1990s kind of parent, with a third vote on religion and schooling? Or simply, as the medical community calls her, a gestational surrogate?


Last October, registered nurse Cris Calvert defeated a former co-worker to win legal recognition as the boy’s only mother in a wrenching Orange County trial. But that was only Phase One in what promises to be a long dispute over parental rights in this age of state-of-the-art, in-vitro-fertilization, embryo-transfer, gestational-surrogate babies.

When the 6-pound, 10-ounce boy was born Sept. 19 at St. Joseph Hospital in Orange, DNA testing established Cris and Mark Calvert as his genetic parents. “It looks like us,” Cris purred when she first held the child. Yet the delivery-room nurses, with nothing more official to go on, wrist-tagged him Baby Boy Johnson. The woman who gave birth was indisputably Anna Louise Johnson, an unmarried ex-Marine of African-American, Irish and Native American ancestry raising a 3-year-old daughter in Garden Grove on part-time nursing work and occasional welfare stints. Now she was causing a fuss, renouncing her signed $10,000 pre-conception promise to give the baby to the Calverts.

Under California’s 15-year-old version of the national Uniform Parenting Act, which deals mostly with paternity and adoption, Johnson was not without ammunition: As the birth mother, she seemingly could stake a claim to parental status as the presumptive “natural mother.” In the end, however, this technologically outmoded legal presumption did her no good at all with Superior Court Judge Richard N. Parslow Jr. She fared no better in public opinion toward the groundbreaking lawsuit she filed just short of her seventh month of pregnancy.

Johnson began by demanding not only sole custody of the Calverts’ offspring but years of child-support payments to boot. As the lawyers clashed and publicity mounted, she retreated to a settlement request of a say in important child-raising decisions. That, too, was rejected.

“The public prejudice is that Anna is a dumb welfare mother, trying to rip off the Calverts,” says William Steiner, who was the temporary court-appointed guardian for the baby. Johnson, an ample woman of Midwestern background, is in fact a bright, highly complicated, laconically humorous woman with a history of charming her way into relationships that rapidly fade. Her checkbook relationship with the Calverts quickly turned into the biggest disaster of her troubled 29 years.

NORMALLY, JUVENILE CUSTODY MATTERS ARE anonymous litigations, dealing as they do with the profound human emotions stirred by the reproductive imperative and the vulnerability of children. California cases have titles like In re Baby Boy B. Little dignity or confidentiality was left to anyone in Johnson vs. Calvert, however. Johnson took the case public and declared in a mawkish theme suggested by her lawyer that she wanted to “lay a trail of bread crumbs” leading the child back to her someday. The result was that every outsider seemed to have an astounded or outraged opinion.


A Fresno Bee editorial cartoonist depicted a rebellious stork on the witness stand, testifying that she had “bonded” with her diapered cargo between Bakersfield and Turlock. H. Joseph Gitlin, an Illinois lawyer chairing the American Bar Assn. committee on surrogate parenting, noted that an old joke had become reality: A young woman tells her mom, “I’m pregnant,” and the older woman asks, “Are you sure you’re the mother?”

The Calverts’ experience, actually not very comic, is a cautionary primer for the desperate infertile couples who are offered new hope by gestational surrogacy. The major lesson is this: Hire a compatible and checked-out surrogate, someone who can help to keep the inevitable mistakes made by both sides from escalating to chaos.

Anna Johnson, it turned out, was none of these things. Going in, she concealed two earlier miscarriages and two stillbirths. Her surrogate pregnancy was another complicated one. One day, out of complex motivations that seemed dominated by pure spite toward the better-fixed couple who she believed was neglecting her, Johnson stopped tamely telling the Calverts, “I’m just an incubator.” She began thinking about withholding the child from the providers of the embryo implanted in her uterus. When she was six months along, she went to see Richard Gilbert, a feisty poverty lawyer.

The Garden Grove attorney was not Harvard Law’s concept of cool. His indifferently buttoned shirts glared in hues of plum, avocado and banana. He was caught unawares when Johnson wrote the Calverts an overwrought letter that could be, and was, interpreted as a pay-me-$5,000-or-you-won’t-get-the-baby blackmail attempt. He could be crude. To Judge Parslow, Gilbert interpreted a 1989 Supreme Court decision as holding that “genetics means crap in determining parental rights.” But he absorbed Johnson’s expenses, and he managed to put womb-leasing in a nutshell. “We’ve created a situation,” Gilbert said, “where we have more parents than we know what to do with.”

Parslow’s solution was to scorn Anna Johnson’s self-contradicted afterthought claims of having “bonded” with the fetus, to thank the woman for her time and to deny her the slightest standing under the 1975 parent law. When heredity triumphed, the supermarket weeklies dropped the story and the cameras departed. Johnson did not. At the far border of the emotional, ethical and judicial minefield that the Calverts blundered into with their bargain-minded approach to surrogate parenting, Johnson’s legal appeals may yet return her to the couple’s picture-postcard subdivision and Christopher Michael’s life.

JOHNSON HAS AN INSPIRATION AND ROLE MODEL in America’s best-known surrogate mother, Mary Beth Whitehead-Gould. In 1988, the New Jersey Supreme Court reversed a trial ruling for William and Elizabeth Stern and granted Whitehead-Gould parental standing and substantial visitation rights. Her surrogacy was different from Johnson’s, though, and, in some ways, an easier case. Whitehead-Gould was the genetic mother of the girl called “Baby M,” her egg merging with Stern’s sperm through artificial insemination in what is now called “traditional” surrogacy.


There have been nearly 4,000 such surrogate births in the United States since the late 1970s, estimates William Handel, head of Beverly Hills’ Center for Surrogate Parenting Inc., largest of California’s 13 surrogacy arrangers. In contrast, Handel counts about 80 successful gestational surrogacies--surrogacies that produce a live baby--since a Michigan housewife named Shannon Boff delivered for a New York couple in 1986.

Since the Boff case, experts involved in surrogacy issues have been plagued with visions of poor women renting their wombs to middle-class couples for whom a pregnancy would be inconvenient. The American Fertility Society and the American College of Obstetricians and Gynecologists promulgated guidelines limiting embryo transfer surrogacies to cases of “medical need.” Exemplified by Crispina Calvert, the genetic mother usually is disabled by a missing or nonfunctioning womb, but still produces ova. However far-fetched the prospects for frivolous use of the new technology may sound, at least a few yuppies terrified of stretch marks or career interruption have provided a reason for the ethical preoccupations. Dr. Richard Marrs, medical director of the Institute for Reproductive Research at the Hospital of the Good Samaritan, says he has turned down embryo-transfer requests of actresses who wanted to stay eligible for juicy roles.

California has become the world center of gestational surrogate parenting--not because of an exploitative rush but because of a legal vacuum and the presence of experienced fertility specialists. About 40 such births have been recorded in the state. Last July 18, Catherine Toole, 36, a married Pasadena woman with four children, gave birth to triplets for a couple from Maracaibo, Venezuela. Other infertile marrieds from Japan, Britain and Cyprus have employed California brokers and fertility clinics. Hired, “commercial” surrogacy among strangers is unlawful in Britain, France, Germany, Greece, Norway, Denmark, Switzerland and the Australian state of Victoria.

Judges in New Jersey, Massachusetts and Kentucky have found at least artificial-insemination surrogacy contracts in conflict with adoption laws, which often give a biological mother a statutory period after birth to change her mind. “One of the reasons we came to California is because California is so much more up-to-date than Massachusetts,” says Linda Merkel, a South Braintree, Mass., sales manager. She and her husband, Glenn, were given twin boys by gestational surrogate Kathy Stovall Gomez of West Los Angeles in 1988. “Medically speaking, California cares more about the individual. I’d move in a second. Everything is progressive.” Indeed, Handel has heard tales of a low-profile San Francisco lawyer brokering lesbian artificial-insemination surrogates for gay would-be fathers.

Surrogacy’s all’s-fair status in California will be transformed by Anna Johnson’s revolt, whatever its final outcome. Appellate rulings in the case will provide the first official guidance to those dealing with medicine’s advancing ability to aid the infertile through the bodily processes of others. The Legislature, characteristically, has been silent.

Since 1981, Sacramento lawmakers have repeatedly buried restrictive and permissive surrogacy bills in committee, ducking a loud debate. “Politicians like to run the other way when they see it coming, because it’s a moral dilemma,” says James Nelson of the Hastings Center, a bioethics research institute in Briarcliff Manor, N.Y. “If you say the contracts are unenforceable, you’re seen as rejecting the desire of infertile couples to have children of their own, a deep and enduring human desire. If you make them legal, you can be seen to have possibly participated in exploitation of women (and) cheapened the family.” The previous Congress ignored an anti-surrogacy bill sponsored by the unlikely partnership of San Francisco’s Rep. Barbara Boxer, a feminist liberal Democrat, and Rep. Henry Hyde, the conservative anti-abortion stalwart from Illinois.


California Assemblywoman Sunny Mojonnier (R-Encinitas) got out in front as a crusader, aiming to make such brokerage a felony. Coincidentally, she was defeated for re-election in November. Handel, a flamboyant 39-year-old lawyer who doubles as a KFI radio-talk-show host, drove to work in his Lexus the next day singing “Ding Dong, the Witch Is Dead.” He and associates contributed $19,500 to Mojonnier’s opponents.

The Washington, D.C.-based National Coalition Against Surrogacy, which encouraged Johnson’s stance and armed her with arguments, has managed to put brokers out of business in some locales, often through the testimony of rueful former surrogates, including Whitehead-Gould. Twelve states have passed legislation making surrogacy contracts unenforceable. Kentucky, Michigan, Utah and Washington also made surrogacy-for-pay a crime. “I don’t think we were meant to be able to buy everything we want in this world,” says coalition co-chair Pat Mounce, a Virginia farmer whose daughter died of a heart attack in 1987 while serving as a surrogate.

Letting “professionals” select a surrogate in states that do not ban the practice is hardly a foolproof option for infertile couples. In practice, surrogacy’s major flaw has been problems with unregulated brokers. At least 23 court complaints across the country have accused brokers of defrauding couples and intimidating or negligently screening surrogate mothers. In the past few years, 13 brokers have been put out of business by authorities in Maryland, Kansas and elsewhere. Some of the remaining 32 brokers formed the American Assn. of Surrogate Parenting Practitioners to draft a self-policing code.

Tragedies of surrogacy other than the pulling and hauling on Baby M have made their way into the news. Nine years ago in Pasadena, Nisa Bhimani sued for custody of the baby she carried for James and Bjorna Noyes of Rochester, N.Y. After it was disclosed that Bjorna was a transsexual, Bhimani got custody. She later became homeless, and Ricky was placed in a children’s shelter. In 1988, Patty Nowakowski, a Flint, Mich., surrogate, gave birth to twins--a girl and a boy. The father accepted only the girl. Nowakowski sued and got both children.

Headlines notwithstanding, legislators have felt little heat; nationwide, only one in 100 surrogacies has ended in litigation. California recorded only four lawsuits before Johnson’s, none involving gestational carriers; California judges have been regularly placing genetic parents’ names on birth certificates without opposition.

The National Coalition Against Surrogacy, which all but took over Johnson’s trial strategy, is pressing its opportunity to destroy fee-paid surrogacy in the state, marshaling appeal briefs arguing that surrogacy carries potential for exploiting poor, minority and Third World women. “Venezuela is full of women who would like to earn some money,” gibes Alexander Capron, a USC professor of law and medicine, who testified for Johnson. “Ship your embryo down there. You probably won’t have to pay them as much.”


Anna Johnson was of minority and working-class background, likely to be attracted by even the $1.54 an hour surrogacy offered her, but she did not fit the profile. Research published in The Times in 1987 shows the average surrogate mother to be white and married, with two years of college. The 334 surrogates questioned in a U.S. Office of Technology Assessment study were typically white and working class. A third of them said they became surrogates to “make amends” for loss of an earlier pregnancy, such as an abortion.

Opponents cite further risks--those posed to children who might otherwise be adopted and to surrogate mothers’ existing children, who might fear, “Is Mommy going to sell me, too, if I’m bad?” The risk for surrogate-born children, opponents say, is that they will be “commodified.”

In its favor, surrogacy has decided social benefits, creating new nuclear families and intensely wanted children who owe their very existence to synthetic parenting. Supporters make frequent recourse to constitutional rights of procreative freedom on precedents including Roe vs. Wade. Finally, some say, adult women simply should be held to their contracts. American Bar Foundation researcher Lori B. Andrews, author of a book on the subject, “Perfect Strangers,” has said, “We shouldn’t let hormones breach the contract, or we’re never going to have a woman in the White House.”

A recently published University of Minnesota study of identical twins concluded that heredity is even more influential than researchers believed, accounting for 70% of intelligence. Still, the physiological contributions of a gestational surrogate--who can hurt a fetus by using tobacco, alcohol or crack cocaine--could be accorded a legal perch alongside biological contributions as more nature-versus-nurture evidence is evaluated.

And in the near future, postmenopausal women implanted with embryos from eggs donated by others undoubtedly will want the law to ensure them what Anna Johnson originally sought: undisturbed custody of their “surrogate” children.

THE NATIONAL CENTER FOR Health Statistics says there are 3.5 million American married couples who have not been able to have a baby. As many as 500,000 a year seek the help of a surrogate or a donor of sperm, egg or embryo, the American Fertility Society estimates. Mark and Cris Calvert were typical.


Mark, a quietly steely white Protestant from Idaho, got a psychology degree from UC Irvine in 1981 and went to work as a hospital orderly while doing graduate study. His boss was popular, capable Crispina Baldovino, a Catholic and the oldest of five children, who emigrated from the Philippines as a nurse in 1979. On their first date, Mark recalls, “We decided on the name Christopher Michael for a baby.” But in 1984, two years after their wedding, Cris underwent a hysterectomy because of benign but bleeding, painful and recurrent uterine tumors.

There followed years of deep depression. It seemed as if all their friends were becoming parents; at one point the Calverts stopped accepting party invitations because the sight of the infants was too painful for Cris.

The Calverts wanted no part of “slow and bureaucratic” adoption except as a last resort. Mark, now an insurance underwriter, recounts the events that led up to their decision as the living-room television set flickers on mute and Cris listens for the baby’s slightest whimper from upstairs. Two years ago, while consulting Dr. Ricardo Asch of the Center for Reproductive Health in Orange, they briefly considered traditional surrogacy. That would have left Cris the adoptive mother of another woman’s child. Many medical ethicists deride the desire for a genetically connected family as “irrational,” but it is powerful. “With Cris’ personality,” says Mark, reaching for the hand of his serenely beaming wife as they sit hip-to-hip on the sofa, “we really wanted a child that had her innocence, her sweetness, her demeanor.”

The Calverts got in touch with Handel. In 10 years of advertising for surrogates and matching them with anxious couples, Handel has had 130 babies born, 18 through gestational surrogacy. The newer method has grown to embrace half of his practice. “Over the last two or three years, it’s just gone berserk,” he says. “You can have your own kid, your own biological child.”

Handel examined the Calverts’ finances and told them they couldn’t afford him. The price was $47,000, with no guarantees; the four local physicians who do these implants report a success rate from 16% to 30%. Handel’s fee covered medical and psychological screening of surrogate applicants. He says he rejects 19 of 20. The center acts as a buffer between surrogates and couples, with surrogate group-support sessions monthly.

One Handel selling point is peace of mind. He says that not one of his center’s surrogates has tried to keep the baby, though he has admitted to some jawboning. “I scare the hell out of them,” he once told the Detroit News.

Until Johnson made her bonding claim, the only surrogates publicly to mourn the giveaway of their babies were genetic mothers such as Whitehead-Gould and Nancy Barrass of Novato, Calif. Gestational surrogates were expressing no such feelings. “For me, it was a day-care thing,” says Kathy Stovall Gomez, who gave birth to twins for the Massachusetts couple. Francie Lemon, a Dayton, Ohio, mother of a 9-year-old daughter and 5-year-old son, carried twins for a Florida couple. “I never bonded with the twins,” she says. “Always there was the knowledge that they were not biologically my own.”


The Calverts saw no reason not to bypass a costly broker. One of Mark’s brothers had a friend who volunteered as a surrogate. The couple invested $2,000 in medical costs before abandoning the deal. The woman “had some personal things in her life,” Cris murmurs, loath to say more. They kept looking for a carrier.

In October, 1989, Cris was working her night shift on a seventh-floor surgical ward at Western Medical Center in Santa Ana. Several other nurses were talking with a “floater,” Anna Johnson. As Cris tells it, Anna, a licensed vocational nurse who worked three nights a week, was “bragging” that she had been accepted as a surrogate at Handel’s demanding agency. At the urging of another Filipina named Yonnie Cabalic, Anna approached Cris in the nursing station and name-dropped. Handel says there is no record of Johnson ever applying at his center. Nonetheless, Johnson was interested in surrogacy.

Down to earth and self-deprecating, Johnson, who is open about her background, has a ready way with a joke. Johnson grew up in Springfield, Ill., the fifth of a hard-working nurse’s six children. Her parents divorced when she was 5. At 18, she says, she became pregnant by her fiance; it was a stillbirth. A year later, there was another pregnancy, and another stillbirth. Anna joined the Marine Corps at 24. She became pregnant again in 1985 and suffered a miscarriage after three months. She had a second miscarriage that year. Assigned to Camp Pendleton, Johnson had her first successful pregnancy when Erica was born in September, 1987. The child developed early respiratory problems, and Johnson arranged a military discharge, going on welfare before finding work with a nursing registry. Orange County charged in a felony complaint that Johnson didn’t fully report the income from her nursing assignments to welfare officials. The charge was reduced to a misdemeanor before Johnson pleaded guilty last September.

In early 1989, Johnson says, she noticed a newspaper advertisement seeking surrogates for a “Beverly Hills attorney.” In her telling, she phoned Handel’s center, receiving a newsletter that indicated to her that a contracting couple would pay a surrogate $45,000. “Erica could have a nest egg for college and stuff like that. I could get a car instead of using the bus,” she remembers thinking. Johnson says she sent off an application and was invited for interviews. She never made it to the center, but she maintains, “They told me verbally that my application had been accepted--because if it’s not accepted they wouldn’t call you to try and set up an appointment.”

Whatever the facts were, the mere mention of the center struck a responsive chord in Cris Calvert. The weekend after Cris and Anna first spoke, Mark joined Cris, Anna and a restive Erica for lunch at a Sizzler near Anna’s apartment. Anna says she found Mark instantly incompatible--”standoffish” and “grilling me” about why she was so interested in helping them.

It was an audition, and Anna’s answers sold. As Cris remembers it, Anna went into detail about a visit to Handel’s center by bus. Even more convincing, Cris says, Anna insisted that Mary Beth Whitehead-Gould’s was “a different case” from her “incubator” situation--she “wouldn’t have any feeling toward the baby” since it wouldn’t be her “genetic material.” She wanted to “make a gift” of a child to an infertile couple. Moreover, Anna pointed out, she was of promising surrogate stock--a robust woman from meat-and-potatoes country, “real fertile” so that an embryo transfer would “take” easily. She’d had an easy pregnancy with Erica, she allegedly said, and didn’t mention the failures, which would have disqualified her at many infertility clinics. “That’s something private, and why should I have to divulge that information?” Johnson later testified defiantly.

Thoroughly persuaded by what they claim were Johnson’s lulling words, the Calverts say they gave no thought to the racial differences. “We’re an interracial family, anyway,” Cris says.


Supporters of Johnson have little sympathy for the Calverts’ conduct in accepting her as a surrogate forthwith. “Let’s say she lied to them--why did they believe her?” demands Dr. Michelle Harrison, a University of Pittsburgh psychiatrist and National Coalition activist who testified in Johnson’s behalf. “You don’t leave kids with someone for a weekend unless you get references. Medical records can be obtained. This was like buying a Gucci bag for $10 on a street corner.”

The Calverts never did know Johnson very well. “Anna needed a lot of attention, apparently, that we could not give her,” Mark says in lingering bewilderment. Court-appointed guardian Steiner concludes, too, that “Johnson had some very significant needs that might have been difficult to meet--emotional needs, because of her dependent personality.” Going even further, Harold LaFlamme, the wry, court-appointed attorney for Steiner, who shifted from a neutral position to outright hostility, privately called Johnson a manipulative, glory-seeking “sociopath.”

Asked why they failed to check Anna’s story, Cris Calvert says a bit sheepishly, “We were probably too naive, trusting, and she has a way with words.” Besides, Cris says, she felt “embarrassment” at the thought of telling Handel that they were co-opting his organization’s supposed surrogate.

Having lost four children, Johnson says, she devoted little time to considering the psychological effects of handing over a fifth one to strangers. “My mother and friends warned me that I should not do it. They said, ‘We know how you are. We know how you get attached.’ (I said,) ‘No, no, no, I know I can do this.’ It’s like putting blinders on.”

The Calverts brought their prize surrogate to the Asch clinic. Here was a hint of screening--the questions of a psychologist who probed the women’s steadfastness. The counselor noted that both were Catholics and reminded them that the Church opposes surrogacy as being “contrary to the unity of marriage and to the dignity of the procreation of the human person.” The women could live with it. Anna says she outlined her failed pregnancies in a medical questionnaire that no one ever asked her about. Before the trial, Asch’s lawyer, opposing a subpoena, told the judge that clinic staffers would swear that no such record exists.

The Calverts bought a bigger house on a quieter street and took out a second mortgage to pay for the surrogacy; medical expenses alone amounted to $23,000. For four weeks, Asch prescribed drugs to synchronize the women’s menstrual cycles. A single shot of Lupron cost $190, and for Cris there was Lupron, progesterone and Pergonal three times daily. She and Anna would work their night shifts together, and after a McDonald’s breakfast paid for by Cris, would visit Asch’s clinic for daily blood drawings. “Cris and I became friends,” Anna says. Cris does not dispute the good will of that interval.


Employing Handel simply as an attorney, the Calverts paid him $3,500 to word-process Johnson’s name into one of his standard contracts. Her name, he says, meant nothing to him. Johnson signed the document as “surrogate” in Asch’s office on Jan. 15. Mark signed as “natural father,” Cris signed as “natural mother.”

The contract, Exhibit A in the lawsuit, was a bizarre document, avowedly carrying no more authority than a gentleman’s agreement. It cautioned that, because surrogate parenting is “a new and unsettled area of the law,” its provisions “may be declared void as against public policy by the California courts.” The signatories accepted “potential liability” for violating criminal laws against involuntary servitude, conspiracy and baby-selling. Anna agreed to “neither form nor attempt to form a parent-child relationship.” An initial $2,000 was due her at the end of the first trimester, another $2,000 after the second trimester, $1,000 one month before birth, $1,000 a week after birth, and $4,000 six weeks later--usually an effective means of ensuring that the baby is handed over to the genetic parents. The Calverts agreed to take the baby, regardless of health problems or abnormalities.

Asch aspirated six eggs from Cris Calvert’s drug-stimulated ovaries on Jan. 17. The eggs were then fertilized in a petri dish. Three embryos were implanted on the 19th. Two nights later, in breezy disregard for the agreement’s “confidentiality” provision, Anna regaled the other nurses with the news that she was “carrying a baby for Cris.” Cris burst into tears. Mark, incensed, told Anna off. He testified, “At that time, I was hoping a transplant would not work.” Cris remembers voicing the same sentiments to her mother.

Two weeks later, a friend drew Johnson’s blood at the hospital’s lab. “We’re pregnant,” Anna announced happily to Cris, pulling her into an empty treatment room. With an unusual combination of self-effacement and pride, Anna posted the first ultrasound sonogram on a nurses’ bulletin board, labeling it “Cris’ baby.”

Almost from the start, Johnson seemed to be suffering through a pregnancy of towering problems. She changed obstetricians three times, complaining of excessive nausea, cramps, contractions, weight gain and improper medication. “Your baby’s making me sick,” she protested, rendering the Calverts sleepless with guilt, they say. In Anna’s second month, she was hospitalized for dehydration. It was then, Cris says, that Anna told the worried, visiting Calverts the truth: This was her fifth “complicated pregnancy.” Says Mark, “We were just floored.”

On March 16, Johnson requested the first $2,000 one month early so that she could buy a new bed and refrigerator. The Calverts complied. In April, Johnson quit at Western Medical and went on $1,100-a-month state disability. She and Erica moved from their apartment into a nearby Garden Grove house rented by Sara Duran. Johnson, under investigation for welfare fraud, had enough money to lend Duran $900. The Calverts were feeling secure, too. They bought a new Mercedes-Benz 190E sedan.


In May, fed up with her miseries, Johnson asked the Calverts to prepare the final payments: When the fetus reached a “viable” five months, Johnson said, she was going to have labor induced. The horrified couple beseeched her to reconsider. The matter was smoothed over, and on Memorial Day weekend, Johnson and her daughter spent an afternoon at the Calverts’--where Johnson asked for the second-trimester payment of $2,000, more than a month early. They sent it.

Johnson saw Dr. Abraham Duel 32 times, reporting frequent contractions. Duel found nothing medically wrong and advised her to see a psychiatrist. She made one visit. Her alarums distanced the Calverts, who began wondering whether the contractions were real or a product of hypochondria.

“They started backing off,” Johnson says. Their obvious coolness--Cris says she blocked Anna from moving in with them by claiming that her divorced father wanted the spare bedroom--deepened Anna’s own spiral of alienation.

Her sense that her employers were “not very understanding” congealed into fury on June 10. Again feeling contractions, she telephoned Mark and asked him to drive her to the hospital. He asked whether her roommate could do it. She hung up and took a taxi. Her contractions didn’t show up on a monitor. But it was then, she testified, that she first changed her mind about letting the Calverts have the baby. Its kicking had started.

Johnson commenced her own backing off. She called the Calverts on July 3, saying that Duel couldn’t keep an appointment to discuss her problems with them. Johnson reset the consultation for July 19. The Calverts showed up. Johnson did not. By then, she had consulted Gilbert on the recommendation of a former patient of hers. The lawyer advised her to write a candid letter, airing her grievances. By the time she wrote 10 days later, new problems were on her mind. They concerned money.

After a rent dispute, Duran had told Johnson to get out of the house. The county was getting closer with its welfare probe. Johnson says she was desperate, confused, anxious and hyped by the medication she was taking to prevent contractions. At a time that she swore was after she had decided to keep the baby, she used lime-colored stationery to write the Calverts a demand for $5,000 within five days, to “help me find another place and get settled in before your baby’s born.”


She wrote: “But see, this situation can go two ways. One, you can pay me the entire sum early so I won’t have to live in the streets, or, two, you can forget about helping me out, call it a breach of contract, and not get the baby.”

The Calverts mailed a conciliatory note. It was too late for that. Johnson had given her first newspaper and TV interviews, “embargoed” to break no sooner than Monday, Aug. 13, when the lawsuit would be filed. Handel learned of the plans from Johnson’s lawyers. “They’re going public,” he told the Calverts. At his suggestion, the couple hired a dry, thorough custody-fight veteran, Christian Van Deusen, and his partner, Robert Walmsley.

The first TV news stories broke three days early. The frightening lawn stakeouts started instantly. The Calverts moved in with Cris’ mother in Santa Ana. On Monday, the filing of the action was followed by dueling news conferences. It was a battle for public opinion, and Van Deusen saw no alternative but to play by Johnson’s rules; photogenically pregnant, she was tearfully accusing them of “fetal neglect,” even of lateness with payments. Nervously holding hands, the quiet Calverts defended themselves on “Inside Edition” and “Good Morning America.”

AS THE BREAD CRUMBS SCATtered, nobody escaped humiliation. “Phil Donahue” paid Johnson’s $4,600 welfare debt to get her on the air. The studio audience booed her. Pleading illness, she skipped an unseemly “Geraldo” segment inevitably titled “Womb for Rent.” In a letter Johnson wrote to Geraldo Rivera, she accused the Calverts of trying to “kidnap” the baby. She was referring to an Aug. 24 incident. Johnson, without telling the Calverts, was hospitalized with contractions. Tipped off by Duran that the baby might be born, Walmsley arrived at the hospital with papers purporting to grant the Calverts custody. Johnson learned of this, checked out and left by the back stairs.

The ex-Marine ended her letter to Rivera with, “I am not a slave. Semper Fi . Anna Johnson.”

The publicity attracted the National Coalition Against Surrogacy. Michelle Harrison became Johnson’s long-distance “therapist,” encouraging the surrogate to press onward. Coalition lawyers, pondering what legal strategies might work, helped switch the pleadings’ focus from fetal neglect to surrogate-fetus bonding. Gilbert kept busy with novel amendments. He filed suit on behalf of Erica, alleging that she has “sibling rights” to grow up with her “brother.” Rather creatively, Gilbert also essayed a claim under the federal Indian Child Welfare Act, which requires tribes to be notified when a member puts a baby up for adoption. The point was not seriously pressed, but Gilbert did get his client to testify that a great-grandfather was “chief of the Choctaw tribe.” Gilbert dropped his voice in awe. “Does that make you an Indian princess?” he asked.

Race, no factor originally, could not be kept out of the charged atmosphere. Van Deusen asked Johnson on the stand if she’d ever told anyone that she “always wanted a white baby.” She replied, after the briefest pause, “Considering that I’m half white myself, no.” A tabloid weekly outraged Mark Calvert by quoting him as calling Johnson “our blackest nightmare.”


Linda Merkel, the beneficiary of a gestational surrogacy, commented later: “The Calverts should never have had a black woman carrying their baby. You’ve opened up that racial issue--the rich buying the poor.”

Before trial, Harold LaFlamme, the guardian’s attorney, got Judge Parslow to bar Johnson--or the Calverts--from making TV, movie or book deals. The order has not been lifted. When it is, Gilbert says, he can envision himself using income from any deals to set up a fund for oppressed surrogate mothers.

Activity reached a fever pitch when the baby was born, 16 days before the due date. As the lawyers drafted emergency motions on temporary custody, the hospital sealed off the maternity floor from the media. The baby’s head was just about coming into view when a delivery-room nurse phoned Steiner, the guardian ad litem, for instructions. He commanded her not to release the child without a court order and to leave the birth certificate blank. “We’ve been calling him Bubba,” LaFlamme quipped.

Two days later, Parslow held a hearing on interim custody at the Orange County Courthouse. In his fifth-floor chambers, neither side would let the other prevail. Parslow prepared to dispatch the baby to a foster home. From her hospital bed, Johnson called Gilbert at lunchtime and gave in: The Calverts could take the baby home, with no prejudice to her rights and with daily three-hour visits allowed.

The hovering biblical analogy at last was presenting itself. “So, this is something like Solomon, where one party stands up and says, ‘Don’t tear up the baby?’ ” Gilbert quotes Parslow.

Cris Calvert took maternity leave. Steiner storked the child from the hospital to the Calverts’ doorway. Johnson’s first visit went well, the tension broken by a rum cake she brought. The only casualty seemed to be Erica. Steiner relates: “She cried, didn’t want to leave, talked about her brother, wondered why the baby couldn’t leave. I had to take her away by the arm.”


On another visit, Gilbert and his wife and co-counsel, Diane Marlowe, arrived to pick up Anna and Erica. There was another woman, someone furnished by the National Coalition Against Surrogacy, with them in the car. Steiner was introduced to Mary Beth Whitehead-Gould.

CRIS CALVERT WAS 36, MARK 34. Signs of the thirtysomething race-the-clock population explosion pervaded the courtroom on the trial’s first day. Marlowe was a new mother. Walmsley was a new father. The Times reporter covering the case was eight months’ pregnant.

Tweedy expert witnesses, the men complete with Central Casting goatees, staged a seminar on the relative weight to be given genomes and gestation. Dr. Justin David Call, a UC Irvine psychiatrist-pediatrician speaking for the Calverts, said that while pregnant women often bond with a fetus, no studies prove that a fetus feels bonded in utero with the woman carrying it. Michelle Harrison recommended that first priority be given to the person who suffered the pains of gestation. Dr. Marshall Klaus, an Oakland neonatal specialist called by Johnson, suggested equality among all three adults, since “the baby can’t exist without all three being combined.”

Johnson’s July 23 money demand seemed to support LaFlamme’s jaundiced view of her social responsibility. Wasn’t she “deceiving” the Calverts, Van Deusen thundered at her, into believing that if they gave her the $5,000, they would get the child? “If they so chose to believe, yes,” Johnson answered.

“Are you saying,” Van Deusen went on, “that they should have been more circumspect about what they chose to believe, coming from you?”

“I guess,” Johnson allowed in a flat tone.

She made her last visits to the baby under circumstances so electric with adult rage that Steiner thought them “untenable” for everyone’s welfare: Johnson upstairs, breast-feeding the newborn and calling him Matthew, the name Erica had picked out. The clenched Calverts whispering in the kitchen. Erica watching earsplitting TV cartoons. Steiner, the monitor, shuttling between floors. The news trucks outside.


Parslow announced his findings on Monday, Oct. 22. Johnson, getting touch-tone therapy from Harrison, was miles away. “She told me she didn’t want to come to the execution,” Steiner said at the trial. She was prescient enough. The judge found against Johnson on every point. He opted entirely for heredity, intricately charting the state parenting act and its reliance on paternity blood testing in a way that backed him on maternity. He enforced Johnson’s promise to give up the child, finding commercial surrogacy not as automatically evil as the National Coalition’s co-chair Mounce says it is. “Altruism aside,” Parslow said, “there’s nothing wrong with getting paid for nine months of what I understand to be misery and a lot of bad days.”

Although Harrison was soon to imply on the Wall Street Journal op-ed page, rather churlishly, that Parslow might have been racially prejudiced against Johnson, race played no discernible role in his ruling. Class, however, was a different matter. Having grounded his opinion both on the statute and the contract’s validity, the judge raced toward the home plate of juvenile law--its traditional, all-purpose, bottom-line “best interests of the child” test. According to this formula, as Gilbert had gloomily predicted, a stable, solvent middle-class household like the home-owning Calverts’ will win out virtually every time over the semi-nomadic, short-term renter’s lifestyle of an impoverished single mother like Anna Johnson. Parslow didn’t spell out the judiciary’s predilections on this point, to be sure. His “best interests” findings involved peace, quiet and certainty. “It’s not my intention to split this baby into two emotional situations, to be raised by two mothers,” he said, returning to old Solomon. “I think a three-parent, two-natural-moms plan is a situation ripe for crazy-making.”

For Anna Johnson, there was a final, personal blow, a confirmation of the lowest impressions voiced around the big courthouse about her credibility. Harrison had observed in Johnson’s favor that she seemed highly attached to the child she was carrying. Yet Johnson herself had told The Times on Aug. 6 that “from Day One” she never thought of the child as her own, and the damaging quote came into evidence. Sara Duran testified that Johnson once said she would “put the baby up for adoption” if she got custody. Even if maternal bonding could provide a basis in principle for parental rights, Parslow concluded, there was abundant evidence that Johnson felt no real attachment to the baby “until she filed her suit, if then.” Equating the petitioner to a foster parent whose mission was completed, the judge terminated her visits.

It was over, at least until the appeals. The Calverts embraced wordlessly, happy but drained. Steiner marched off to fill out the birth certificate. Mark Calvert bitterly answered a TV reporter’s question about Anna’s bonding: “The only thing she’s ever bonded with is your cameras.” Gilbert again lapsed into crassness, sneering to journalists: “Can you just see a judge sending six policemen to a hospital and saying, ‘Spread your legs, lady, we’re taking this child by court order?’ ”

Two hours later, Johnson was crying before reporters crowded into Gilbert’s conference room. She sniffled, “He’ll always be my child. No matter what they call him, he will always be my Matthew.” She mentioned bread crumbs again.

Gilbert was optimistic about the appellate courts. “I don’t think they’re going to stand for women being set back a thousand years and turned into cows,” he said.


The Fourth District Court of Appeal in Santa Ana has granted Johnson an expedited appeal that--after briefs are exchanged, the trial transcript studied and oral arguments scheduled--could result in an opinion as early as April. The loser there is sure to seek a California Supreme Court hearing. If Gilbert doesn’t prevail, he has a fallback position, he says--a planned suit against Handel and Asch for “intentional and negligent infliction of emotional distress, medical malpractice, battery and other torts.”

Ultimately, family law and fertility science professionals will not be satisfied with seeing surrogate parenting tossed about on the waves of common law. They fairly sob, not very optimistically, for the specific social choices of legislation to minimize parent-surrogate breakdowns. “Because legislators are gutless, these tragedies are going to continue,” says Katie Brophy, a Louisville, Ky., attorney specializing in surrogacy.

“Even if they made a law that wasn’t perfect,” says Dr. James Goldfarb, a Cleveland in-vitro specialist, “at least the surrogate and infertile couple would know what they were getting into. Here, it’s so uncharted. Depending on what court you happen to walk into, you get a different outcome.” Dr. Jirair Konialian, a Century City Hospital in-vitro practitioner, says: “If you select your surrogates properly, you do not have problems. That’s why we need laws. If this becomes legal, you have more readily available surrogates. You do not grab a woman who says, ‘I’ll do it.’ ”

Bioethicist Nelson says, “It’s an issue that we’re still at the point of exploring, and, of course, events have caught up to us. We have to decide.” Parslow, too, invited legislative help in his opinion. “I believe the in-vitro fertilization genie is out of the bottle,” he said. “You can’t put it back.” He had some specific proposals, chiefly one mandating “intensive psychological evaluation” of all parties by public adoption agencies. The state might even set up a “24-hour hotline for problems during pregnancy.”

While the lawyers appeal, Cris Calvert is back at work, with baby-sitting backup from her parents, three brothers and sister. Anna Johnson no longer works at the same hospital but for a registry. With legal bills still coming in, the Calverts’ Mercedes is up for sale. “All the sleepless nights, all the tears we’ve cried, financially, Christopher Michael’s worth it,” Mark says while the infant sleeps. “We’re overjoyed to have him in our home.”

The Calverts will tell their son all about the trouble someday, “when he’s old enough to comprehend the complex circumstances surrounding his birth,” Mark says. “He’ll understand how much we loved him and how much we went through to have him.” Besides, the father says, gestational surrogacy is “not going to be that uncommon in years to come.”


Was this, after everything, a hint? Two fertilized Calvert embryos were frozen last January. What will the couple do with them? Mark Calvert shrugs slightly, grunts, casts his eyes down toward the tan carpet and plainly thinks about another miracle. He says finally, “Several people have volunteered already, saying we didn’t get a fair deal.”