Surrogate Is Legal Mother, Judge Decides : Families: A woman who bore a child for a couple who are now divorcing wins a round in an Orange County court. She says she will now seek primary custody of her daughter.

In a ruling that could bolster the rights of surrogate mothers in California, a Superior Court judge in Orange County ruled Thursday that a surrogate mother is the legal parent of the baby girl she bore for a couple who are now divorcing.

Surrogate mother Elvira Jordan, who has seen her now 10-month-old daughter only four times since the baby went home from the hospital with Robert and Cynthia Moschetta, will be permitted to visit the child while permanent custody arrangements are worked out.

Jordan said she would seek primary custody of her daughter, who is now living with Robert Moschetta in Lakewood. But Jordan said she would allow visitation by Cynthia Moschetta, who had raised the baby for the first six months of life and now has no legal claim to the child.

“I’m overwhelmed, I’m happy,” said Jordan, 42, the mother of three other children. “I want her to be all of the time with me--full custody.”

Two legal scholars said Thursday’s decision would not clear up the murky legal status of surrogate motherhood in California. At the moment, the state does not have a single law or appellate court decision to indicate whether surrogacy contracts are enforceable, and if so, under what conditions.

But they said the ruling by Superior Court Judge Nancy Wieben Stock, who found that the surrogate had not abandoned her child by leaving her in the Moschettas’ custody for nine months, could help other surrogates who decide to keep their babies.

“The surrogate managed to win,” said Harvard Law School professor Martha A. Field. “In a lot of cases, the couple who arranged for the adoption is so much better equipped to handle the litigation that even in cases where the surrogates ought to win, they don’t.”

The case went to court April 8 as a three-way custody battle among the baby’s biological father, his estranged wife, and the surrogate. Judge Stock quickly ruled that Cynthia Moschetta, 51, had no biological or legal relationship to the baby.

Jordan testified that she wanted to give a child to a happy but infertile couple. She conceived through artificial insemination with her own egg and Robert Moschetta’s sperm. But the Moschettas’ marriage faltered before the baby was born, and Jordan announced she would not allow them to take her daughter home from the hospital.

Jordan eventually relented after the couple promised to seek counseling to repair their marriage. But six months later, Robert Moschetta left his wife of nine years and took the baby with him. A month later, all three would-be parents were seeking custody of the child.

In an unusual development, lawyers for all sides eventually agreed that the surrogacy contract itself was unenforceable. Nevertheless, Robert Moschetta, 35, asked the court to terminate Jordan’s parental rights on the grounds that she had effectively abandoned the baby by leaving her with the Moschettas for nine months.

In her ruling Thursday, Stock found that the key question was whether Jordan had relinquished her parental rights or abandoned the child.

Stock ruled that Jordan had explicitly refused to relinquish the child for adoption because she was concerned about the stability of the Moschettas’ marriage; that Jordan had expressed a consistent interest and concern in the welfare of her child, and that a document purporting to be a relinquishment, which Robert Moschetta gave her to sign, was invalid.

The judge noted that none of the attorneys had asked that the surrogacy contract be enforced. She said the case, while billed as a surrogacy dispute, was actually a simple custody dispute between the biological father and the biological mother.

Moreover, the judge added, “To literally enforce the terms of the surrogacy contract, the court might have to acknowledge an irreversible pre-conception relinquishment of parental rights without consideration of the best interests of the child.”

To do so, Stock said, would be “contrary to public policy.”

“That’s a strong statement,” said James B. Boskey, an expert on parental rights and family law at Seton Hall University Law School in Newark, N.J. “If that statement holds up, it means that a surrogacy contract is essentially at risk.”

That decision puts the Moschetta case at odds with the outcome of the Anna M. Johnson surrogacy dispute, in which Orange County Superior Court Judge Richard N. Parslow Jr. ruled that the surrogacy contract Johnson signed was enforceable. Parslow gave custody of the baby to the couple who hired her, Mark and Crispina Calvert.

The two cases are legally very different, however, because Jordan is the undisputed biological mother of the Moschetta baby. Johnson was a “gestational surrogate” who carried a baby created from the Calverts’ genetic material, and much of that trial revolved around the legal definition of motherhood.