A 3-Way Fight for Custody : Outcome for Surrogate and Estranged Couple Could Set a Precedent

Robert and Cynthia Moschetta, an infertile couple, hired a surrogate mother to bear their child. But shortly before the baby was born, the surrogate learned that the couple’s marriage was in trouble.

The surrogate, Elvira Jordan, reluctantly agreed to let the couple take the baby home, provided they seek marriage counseling.

But six months later, Robert Moschetta left his wife of nine years and took the baby, fathered with his sperm, with him.

Now all three “parents”--husband, wife and surrogate--are battling for custody.

Legal scholars say the case, Moschetta vs. Moschetta and Jordan, could set a precedent in California with broad implications, not just for future surrogacy contracts, but also for gay parents, stepparents and others who rear children in non-traditional families.

Like the nationally publicized lawsuit by surrogate Anna M. Johnson of Orange County, who is appealing a court decision not to let her keep the child she bore, the latest case raises thorny questions about the definition of parenthood.

When the trial begins March 25, Orange County Superior Court Judge Nancy Wieben Stock will first have to decide which woman is 9-month-old Marissa Moschetta’s legal mother.

Is it Jordan, the baby’s genetic and natural mother? She wanted her daughter to be raised by a happy, loving couple, but signed away her rights to the little girl the day she picked up her last check from the Moschettas.

Or is it Cynthia Moschetta? She has no biological link to the child, but she planned for the birth, helped pay the surrogate, took a maternity leave to care for Marissa, and considers the baby her own.

In yet another unsettling legal twist, the woman who wins the motherhood contest will then face off in court against Robert Moschetta, the biological father, who wants to raise his daughter alone.

In the so-called “Baby M” case, the New Jersey Supreme Court gave the biological father, William Stern, and the surrogate mother, Mary Beth Whitehead, parental rights. Stern’s wife, Betsy, who helped raise the child, was given no legal rights.

But Cynthia Moschetta believes women in her position should not be shut out by the courts.

“I don’t think it’s fair for someone to have to fight like this,” she said. “I believe she’s my baby.”

Because Cynthia has helped raise the child, the court may be unwilling to cut her off, said James B. Boskey, a professor at Seton Hall University Law School in Newark, N. J.

A court decision giving Cynthia custody or visitation could bolster the claims of gay parents, stepparents, grandparents, and others who rear children to whom they may not have legal claim, Boskey said.

“If the court says that one becomes a parent by raising a child, rather than by merely participating in its birth, then it would be truly precedent-setting,” he said.

At the moment, Robert Moschetta has temporary custody of Marissa, and Cynthia Moschetta has visitation two days a week.

Jordan, who calls the baby Melissa Jordan, said the Moschettas have allowed her to see the baby only once, which legal scholars said could hurt her bid for custody. So far, the court has also denied her any contact with the child.

Elvira Jordan has never given an interview. Those who know her insist she only wants to see her daughter in a good home.

Friends say Jordan, 42, a divorced mother of three other children, feels it is the couple who have breached their promise to provide the baby a loving, two-parent home.

“To me, the fault lies entirely with the couple and not the surrogate,” said Nina F. Kellogg, a Los Angeles psychologist who has arranged more than 30 surrogate pregnancies, including this one. “This is not a surrogate kicking up trouble. This is a couple who let her down.”

Moreover, Jordan is a native Spanish speaker with little ability to read English, and did not have a lawyer until a month ago, according to two attorneys now involved in the case.

Jordan’s new lawyer, Jeri R. McKeand, claims the surrogate never read the document by which she relinquished all parental rights and would never have signed it had she known what it said.

These allegations--if proved--could strengthen Jordan’s case enormously and help decide the outcome, legal scholars said.

Attorneys for the three contenders say that the Moschetta case is the first of its kind to come before a court in California, and perhaps in the nation. But they disagree about which laws should apply--should it be contract law, or family law on adoption, divorce and custody?

Previous surrogacy disputes, including the Baby M case and the Johnson case, are not legally binding in the Moschetta case because they have not been upheld by a California appeals court. In fact, there have been no appellate court decisions to indicate whether surrogacy contracts are even legal in California, let alone to delineate the respective rights of a divorcing couple and a surrogate mother.

“We’re on the new frontier,” said Leslee J. Newman, the attorney for Cynthia Moschetta.

Each of the three would-be parents makes a compelling case for custody.

Cynthia, 51, has a 30-year-old son by a previous marriage. Shortly before she met Robert, 35, she had her ovarian tubes tied.

The couple considered adoption but settled on surrogacy, she said, partly because they thought it would be faster and partly because her husband “wanted it to be blood.”

In July, 1989, Kellogg introduced the Moschettas to Jordan. Kellogg had previously approached Jordan--a first-time surrogate--about bearing a child for a single man, but she refused, saying she wanted to give a child to a couple.

When Kellogg met the Moschettas, both professionals, she considered them ideal.

“They sat together on the couch. They were holding hands,” Kellogg said. “There were no clues to me that this was a couple having problems. . . .”

The contract specified that Jordan would be paid $10,000, and made no mention of what would happen to the child in a divorce. A clause barring a couple from divorcing would be unenforceable, said Catherine M. Adams, who drafted the contract on behalf of the Moschettas.

“You can’t guarantee to a birth mother that the adoptive parents are going to be ideal,” she said. Still, she said: “It surprised me very much that this all happened before the baby was born.”

In November, 1989, Jordan conceived through artificial insemination. Five months later, Robert Moschetta told his wife he wanted to divorce her and raise the baby himself.

After consultations with Kellogg, they agreed not to tell the surrogate, Cynthia Moschetta said.

Meanwhile, Jordan’s pregnancy ran into complications, and she spent the last weeks of her pregnancy in a hospital bed. Shortly before giving birth, Jordan learned of the marital breakdown.

As soon as Marissa was born May 28, 1990, Jordan announced that she would not allow the child to go home with the Moschettas.

“Her stand was, ‘I wanted the baby to go into a stable home with two parents who love the baby,’ ” Adams said.

But after intense negotiations, Jordan agreed to let the Moschettas take the baby home.

However, according to Adams and others, Jordan imposed several conditions: that the Moschettas agree to undergo marriage counseling for at least one year; that Jordan would not finalize a formal adoption during that period, and that Jordan would still be paid. Jordan also wanted to be allowed to visit the baby to make sure all was well, Kellogg said.

The Moschettas agreed, Cynthia said.

Jordan, who still did not have her own attorney, asked Adams to put the conditions in writing. Adams drafted an addendum to the contract and mailed copies to the surrogate and the couple. Jordan signed and returned the document, Adams said, but the Moschettas did not.

That addendum is likely to be an important trial issue, said Marjorie M. Shultz, UC Berkeley law professor. The agreement may be enforceable even if the Moschettas did not sign it, she said.

Shultz, who has written extensively on the law concerning alternative reproduction, argues that, in general, courts should respect the intentions of those who make such arrangements and enforce the contracts accordingly.

Martha Field, a Harvard Law School professor, argues that surrogate mothers should always have the right to change their minds. She said the issue is whether Jordan was “tricked” into giving up the child.

Robert Moschetta said he initiated marriage counseling. As a Roman Catholic, he said, “Divorce is not something I take lightly.”

Nevertheless, Moschetta said, he was unwilling to allow his wife to adopt Marissa while he was unsure whether their marriage would survive. He hired an attorney who drafted a document by which Jordan would relinquish her parental rights to Marissa and give custody to him, alone.

On Sept. 17, Jordan signed the document, which specifies that Robert Moschetta had offered to give her $500 to hire a lawyer for advice, but that she had declined, court documents show.

McKeand, Jordan’s attorney, said that the surrogate never read that document and had no idea what it said.

Robert Moschetta said Jordan agreed to give up her rights in exchange for her last $5,000. He said he did not deceive her about his intentions.

“I said, ‘We’re working on the marriage, we’re in counseling, I want to wrap up the paperwork,’ ” he said.

On Nov. 30, Robert told Cynthia he was moving out of their Santa Ana home and taking the baby with him, saying it would be better for Marissa to be raised by him than be shuttled between two homes.

In legal documents, his attorney argued that Cynthia is “no more than a stepmother,” and should not have parental rights.

“I bathe her, I feed her, I change her, I give her bottles,” Robert said. “Once this situation is behind me and I get things taken care of, I think I will have a wife and family, and hopefully another baby.”

“He offered me money to leave,” Cynthia Moschetta said, breaking into tears. “He would tell me that I didn’t have any rights, because I’m not the mother. I told him that there was no amount of money in the world that he could give me that would replace Marissa.”

In December, Cynthia filed suit against both her estranged husband and Jordan, seeking custody of the child. She says she still loves her husband, does not understand why he left, and would prefer to reconcile and raise the baby--who is standing up, and getting ready to walk--together.

The trial that will decide who will raise Marissa could very well renew the national debate over the legality and desirability of surrogate motherhood contracts, how they should be regulated and what should be done when, like marriages, they fail.