Three ‘Parents’ Fight Over Custody in Surrogate Case : Procreation: Santa Ana couple who hired woman to bear a child split up. Now all of them claim the baby.

An infertile couple hire a surrogate mother to bear the husband’s child. But shortly before the baby is born, the surrogate learns that the couple’s marriage is falling apart.

She reluctantly agrees to let the couple take the baby home, provided they seek marriage counseling. Six months later, the husband leaves his wife of nine years and takes the baby with him.

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

The case is Moschetta vs. Moschetta and Jordan. Legal scholars say it 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 lawsuit by Orange County surrogate Anna M. Johnson, who is appealing last year’s court decision not to let her keep the child she bore, the Moschetta 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 surrogate Elvira 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.

Or is the “real” mother 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 the baby’s biological father. Robert Moschetta says he wants to raise his daughter alone.

In the much-publicized “Baby M” surrogacy 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.

Cynthia Moschetta says 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 Marissa, 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 ruling awarding her custody or visitation could bolster the claims of gay parents, stepparents, grandparents and others who rear children to whom they have no 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 his estranged wife has visitation rights two days a week.

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

While the contenders in the Johnson case courted media attention, the Moschettas and Jordan have shunned publicity. Elvira Jordan has tried to dodge photographers and has never given an interview.

Those who know Jordan insist she is motivated only by the desire to see her daughter in a good home. They say she kept her part of the bargain by handing over the child, and believes it is the couple who breached their promise to provide the baby a loving, two-parent family.

“Elvie’s marvelous. She’s one of the best surrogates I’ve ever had,” said Nina F. Kellogg, a Los Angeles psychologist who has arranged more than 30 surrogate pregnancies.

“To me, the fault lies entirely with the couple and not the surrogate,” Kellogg said. “This is not a surrogate kicking up trouble. This is a couple who let her down.”

Jordan is a first-time surrogate, a native Spanish speaker with little ability to read English, and never had an lawyer until a month ago, according to her new attorney, Jeri R. McKeand. McKeand claims the surrogate mother never read the document by which she relinquished all parental rights and would never have signed it had she known what it said.

Those allegations--if proven--could strengthen the surrogate’s case enormously and help decide the outcome, legal scholars said.

Attorneys for the three contenders agree that the Moschetta case is the first of its kind to come before a court in California, and perhaps in the nation.

Previous surrogacy disputes, including the Baby M and Johnson cases, are not binding because they have not been upheld by a California appeals court.

In fact, as yet there are 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.

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. After their marriage, she entered an in-vitro fertilization program and endured years of fertility drugs, uncomfortable treatments and miscarriages.

“It was very trying . . . “ she said in a recent interview. “It would have been worth it if I’d gotten pregnant.”

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

In July, 1989, Kellogg introduced the Moschettas to Jordan, an apartment manager and mother of three. Kellogg had previously approached Jordan about bearing a child for a single man, but Jordan refused, saying she wanted to give a child to a couple.

When Kellogg met the Moschettas, a Santa Ana couple who work in occupational safety, she considered them ideal.

“They sat together on the couch. They were holding hands,” said Kellogg. “There were no clues to me that this was a couple having problems in any way other than their inability to conceive a child.”

Surrogacy contracts usually specify that the couple’s relatives will raise the child if they should die during the pregnancy, said attorney Catherine M. Adams, who drafted the contract on behalf of the Moschettas. But Jordan refused.

“She wanted to keep the baby if anything happened,” Adams said.

The contract specified that Jordan would be paid $10,000, and did not mention what would happen to the child in case of a divorce. A clause barring a couple from divorcing would be unenforceable, Adams said.

“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 said. Meanwhile, Jordan’s pregnancy ran into complications, and she spent the last weeks of her pregnancy in a hospital bed. It was there, shortly before the birth of the baby, that she learned of the marital breakdown.

As soon as Marissa was born on May 28, 1990, Jordan announced that she would not allow the child to go home with the Moschettas, and for several days she did not let Robert visit his daughter, according to interviews and court documents.

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

Robert Moschetta said he begged Jordan to let him see the baby, telling her “that I wished to work on the marriage, and that no matter what happened I’m always going to be her father. . . . I said I will provide a good life for her no matter what.”

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

However, according to Adams and others, Jordan imposed several conditions: first, that the Moschettas agree to undergo marriage counseling for at least one year; second, that Jordan would not finalize a formal adoption during that period; and third, 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 did not have her own attorney, asked Adams to put the conditions in writing as a contract addendum. Adams drafted the addendum 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 issue in the trial, said UC Berkeley law professor Marjorie M. Shultz, who said the verbal agreement may be enforceable even if the Moschettas didn’t sign the addendum.

Shultz, who has written extensively on alternative reproduction, argues that in general courts should respect the intentions of those who enter into such arrangements and enforce the contracts accordingly--but not if the contract was coercive.

“These particular facts may be a perfect example of a case where we should not enforce this contract,” she said.

Martha Field, a Harvard Law School professor who takes a dimmer view of surrogacy, has argued 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.

“This case shows that even if (surrogacy) isn’t inherently exploitative, the wealthier couple with the counsel can take advantage of the surrogate mother,” Field said.

“No lawyer in that situation would have allowed the couple to take the child home at that time without the negotiations being put into writing and signed,” she added.

The Moschettas took the child home, and Cynthia Moschetta took a maternity leave to care for her. She says she hoped and believed that the marriage would work out.

Robert Moschetta said he initiated counseling and tried to make the marriage work. As a Roman Catholic, he said, “divorce is not something I take lightly.”

Nevertheless, he said, he was unwilling to allow Cynthia 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 her custody to Robert alone.

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

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

“At no time at all did he tell her that she was signing a relinquishment for the child,” McKeand said. “If she had known that she wouldn’t have signed it.”

Robert Moschetta said Jordan agreed to give up her rights in exchange for her last $5,000, and 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.

He said he believed 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 be awarded 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.”

Robert charges that his wife threatened to drag the surrogate mother into their dispute if he filed for divorce.

“Cindy told me, ‘If you ever leave, I’ll make your life hell,’ ” he said. “ ‘I’ll get Elvie involved and I’ll get Nina (Kellogg) involved and I’ll make your life hell.’ ”

“He offered me money to leave. . . , “ Cynthia 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 a suit against both her estranged husband and Jordan, seeking custody of the child. She says she still loves her husband and would prefer to reconcile and raise the baby together.

Marissa Moschetta is smiling, standing up and getting ready to walk.

On March 7, Judge Stock will hold a preliminary hearing to decide if Marissa should have a court-appointed lawyer of her own, and which child psychologists should examine her.

The trial is scheduled to begin three weeks later, and is sure to renew the national debate over whether surrogacy is legal, moral or desirable, and, if so, how it should be regulated.

UC Berkeley’s Shultz said the Moschetta case will provide “another piece in a pattern emerging about how we’re going to handle new reproductive capacities, and whether people’s advance decisions about procreation, even when they involve non-traditional arrangements, will or will not be respected.”

USC law professor Michael H. Shapiro, who believes surrogacy should be legal but carefully regulated, said the case raises questions about how to spell out details in contracts in advance, and what to do if one of the parties breaks their word.

“What constitutes a significant breach of contract so that the surrogate can say, ‘No, I’m no longer going to go through with this’ ?” he asked.

“Suppose the father refused to pay? Wouldn’t she be entitled to keep the child?”

Meanwhile, the woman who arranged the Moschetta deal is distraught. Nina Kellogg says she sympathizes with Jordan, but thinks the custody case must finally be resolved between the Moschettas. Still, she worries that the impending colossal court battle will give surrogacy arrangements another black eye.

The overwhelming majority of surrogate births are “joyous,” she said, while the tiny number of problem cases have appeared on national television.

“The press has made the public think that all surrogates are shaky. . . , “ she said. “Are you going to throw out the concept of adoption because a few birth mothers have taken back their babies?”

Baby Marissa Story: The Key Characters

In a case that experts say may set legal precedent, a divorcing couple and the surrogate mother they hired to give them a child are all fighting for custody of a 9-month-old baby girl. The case is scheduled for trial on March 25, five months after surrogate mother Anna M. Johnson lost her bid for custody of a child she bore for his genetic parents. Johnson has filed an appeal. Unlike Anna Johnson, who had no genetic link to her child, the surrogate mother in this case is the baby’s natural and genetic mother.

The Surrogate / Genetic Mother

Elvira Jordan, 42

A divorced mother of three, she was hired for $10,000 to bear a child for Robert and Cynthia Moschetta. But when she learned the couple were splitting up, she agreed to allow them to take the newborn baby home from the hospital only on certain conditions, according to her lawyer. Four months later, Jordan relinquished her parental rights by signing a document her lawyer says she did not understand.

The Wife / Would-Be Adoptive Mother

Cynthia Moschetta, 51

She has no biological link to the baby, but she says she helped pay for the surrogate, took a 2 1/2-month maternity leave to care for the newborn, and considers the child her own. She says she was prevented by her husband from adopting. In the past, wives of sperm donors have not been given legal standing to contest custody, so a victory for her would set legal precedent.

The Husband / Genetic Father

Robert Moschetta, 35

A Roman Catholic, he says he has always wanted a family and does not take divorce lightly. In court documents, his attorney argues that he should have sole custody of the baby, and that neither his estranged wife nor Jordan should be given parental rights. He has temporary custody of Marissa.

The Broker

Nina F. Kellogg

She runs a surrogacy program in Los Angeles and arranged the Moschetta surrogacy. Though sympathetic to Jordan, she believes the custody issue must ultimately be decided by the Moschettas.

The Judge

Nancy Wieben Stock

A member of Orange County Superior Court’s family law panel.