Family Experts Criticize Ruling in Surrogacy Case

Experts on family law and child development Friday criticized a judge’s ruling that gave a surrogate mother and biological father joint custody of a 16-month-old girl conceived through artificial insemination.

“The judge can’t be serious,” said James B. Boskey, a family law professor at Seton Hall Law School in Newark, N.J. “I don’t see how this could possibly be healthy for the child. This is precedent-setting in a very dangerous way.”

Dr. Stephen Herman, a psychiatrist and professor at the Yale Child Study Center in New Haven, Conn., said: “Judges think that joint custody is going to be a panacea, but it rarely works. . . . It’s fraught with problems.”

But Orange County Superior Court Judge Nancy Wieben Stock’s order Thursday in the custody battle between surrogate Elvira Jordan and the couple for whom she bore the child, Cynthia and Robert Moschetta, also drew support.

“I think it’s great,” said Mary Beth Whitehead-Gould, the surrogate mother in the watershed “Baby M” case. “I wish I had gotten joint custody. . . . Personally, I think this is the best situation for the child.”

In the 1987 New Jersey case, Whitehead-Gould carried her baby to term for a couple and then decided she wanted to keep the child. A judge gave her visitation rights.

Under Stock’s order, Jordan, 42, gets custody of the child from 8 a.m. to 4 p.m., Monday through Friday, while the biological father, Robert Moschetta, 35, has the child the rest of the time. Holidays are alternated, with each parent allowed a four-day vacation with Marissa a year.

Stock’s ruling climaxed a bitter nine-month battle. Robert Moschetta has vowed to appeal the ruling.

Cynthia Moschetta, 51, who helped raise Marissa for six months, was denied any mandated visitation rights.

It was in June, 1989, that Jordan agreed to bear a child for the couple in exchange for $10,000. But when the Moschettas filed for divorce six months after the child was born, both Moschettas and Jordan fought for custody.

In April, the surrogate contract was deemed invalid and Jordan and Robert Moschetta were declared the legal parents.

Stock’s ruling rejected recommendations from court-appointed experts that Robert Moschetta be given sole custody, with Jordan receiving only limited visitation privileges.

The court-appointed experts could not be reached for comment Friday. But other experts agreed with the idea that one parent should have sole custody of the child, although most cautioned that they were unfamiliar with the specifics of the Jordan case. Most said joint custody arrangements were virtually unworkable, succeeding only when the parents have good relationships.

Because of the hostilities among the parties in this case, a joint custody arrangement is “doomed for failure,” said Dr. Justin Call, a psychiatrist and head of the UC Irvine’s Child and Adolescent Psychiatry Department.

“It’s a fantastical solution that is convenient for the court,” Call said. “There’s little chance of it being successful. . . . There’s a moral lesson here: If you’re going to choose a surrogate, choose someone you can get along with.”