Surrogate Mother’s Rights Taken, Justices Told : Courts: Lawyer argues for overturning ruling that gave the genetic parents custody of the child she bore.
A surrogate mother who lost an unprecedented battle to be declared a parent of the child she bore for a Tustin couple was unfairly stripped of her constitutional rights, her attorney said Wednesday as the case moved to an appeals court.
“There is not a society in the world that breeds women like animals and then forcibly removes their children from them as a matter of public policy,” said Richard C. Gilbert, the attorney for Anna L. Johnson.
Johnson, who did not attend the hearing in the 4th District Court of Appeal, is attempting to reverse a lower court ruling that gave sole custody of the child to his genetic parents, Mark and Crispina Calvert. In his decision, Superior Court Judge Richard N. Parslow Jr. also denied Johnson parental and visitation rights.
Last year’s trial marked the first time a surrogate mother with no genetic link to the fetus fought to be declared a parent under state law. The high-profile case drew international attention to the issue of surrogacy and was the impetus for legislative proposals seeking to define a surrogate’s rights.
At the center of the legal wrangling is the now-11-month-old boy named Christopher Michael by the Calverts and Matthew by Johnson.
The child was conceived from a sperm and an egg taken from the Calverts. Although Crispina Calvert could not carry a child because of a hysterectomy, she could provide an egg.
Under a contract with the Calverts, Johnson agreed to carry the fertilized egg to term in exchange for $10,000. Before the child was born, however, Johnson balked on the deal and sued for parental rights.
On Wednesday, before a packed courtroom that included the Calverts, Gilbert argued that Judge Parslow erred in his Oct. 22 decision.
Because Johnson was the “birth mother,” she should be considered the “legal and natural mother of the baby with full parental rights,” Gilbert argued before the three justices, who have 90 days to issue an opinion on the matter.
Gilbert also argued for setting aside Parslow’s ruling on grounds that Johnson misunderstood the surrogacy contract, and there was “no representative from the Department of Social Services to advise (her) of her rights.”
Further, he argued, the judge misapplied a “best interest” test, trying to determine who would make the best parents for the child.
“The notion that a birth mother has to pass a personal litmus test of a trial court judge to acquire parental rights is as abhorrent a concept as any imaginable,” he said.
Christian R. Van Deusen, the Calverts’ attorney, argued that overturning Parslow’s decision would deny the fundamental rights of his clients.
“I believe that, on constitutional grounds, the court has to recognize the right of procreative choices, even in those people who suffer a physical disability that prevents them from procreating in the conventional manner,” Van Deusen said.
He also said that to grant Johnson equal parental rights would, in effect, infringe on his clients’ “total exercise of parental rights. And, as the trial judge found, this is a situation ripe for crazy-making.”
Finally, Van Deusen argued, Johnson agreed to the surrogacy contract, and if the justices decided “not to hold that carrier to that agreement, you’re setting an example that would be devastating.”
Michelle Ben-Hur, a court-appointed attorney for the baby, told the justices that her client’s needs were best satisfied with the Calverts, with whom “he is doing very well.”
After the hearing, the Calverts walked out of the courtroom and talked to reporters.
“We’re just happy that Christopher Michael is in our home,” said Mark Calvert. “He’s such a wonderful baby to have in our house. He’s a growing, energetic baby boy.
“Obviously, I question Anna Johnson’s interest in Christopher Michael. She was apparently too occupied to come to court today,” he said.
He added that his son “is in the right environment. We are his parents, he has attributes of my wife. We see ourselves in him. . . . I can’t explain how much joy he’s brought into our home.”
Crispina Calvert, holding her husband’s hand, said she has had “sleepless nights thinking about the outcome of this trial, (but) I’m very hopeful.”