State High Court to Rule in Child Surrogacy Case

In the first case of its kind in the nation, the state Supreme Court agreed Thursday to decide whether parental rights can be granted to a woman with no genetic link to a test-tube baby she bore for a childless couple.

The justices, in a brief order, set aside for now a state appeal court ruling rejecting legal claims by Anna M. Johnson to a child created from the sperm and egg of Mark and Crispina Calvert of Tustin.

Johnson agreed to bear the child for $10,000, but a dispute arose and both sides sought rights to the baby. The appeals court held last October that because Johnson is not biologically related to the child, she cannot be declared the natural or legal mother.

The case emerged as the first court test in the country over whether parental rights exist for a surrogate mother with no genetic connection to the child. It also marks the first time the California high court has reviewed any case involving surrogate birth.

Other disputes have involved surrogates who are also the genetic mothers. In one noted case, the New Jersey Supreme Court, ruling in the Baby M dispute, held in 1988 that surrogate contracts are illegal and that a woman who has been artificially inseminated is not entitled to custody of the child.

Thursday’s action was hailed as “extremely significant” by Richard C. Gilbert, an attorney for Johnson. “This is the first victory we’ve had,” he said. “It’s wonderful.”

Gilbert said it was possible that the high court would expand its review to determine the legality of surrogate contracts in themselves. The justices set no date for hearing the case. Meanwhile, legislation that would allow surrogacy under certain conditions is pending before the Legislature.

Robert R. Walmsley, a lawyer for the Calverts, said the high court’s decision to review the case could reflect the increasing significance of the surrogacy issue--and did not indicate that the justices were prepared to rule in favor of Johnson.

Nonetheless, Walmsley said that the prospect of further legal proceedings will take an emotional toll on the couple, who have retained custody of the child since birth. “Quite frankly, the Calverts would like to get on with their lives and put this whole legal situation behind them,” the attorney said.

A spokesman for a group opposing surrogacy agreements voiced hope that the state high court would grant new legal recognition to “birth mothers” such as Johnson.

“The Anna Johnson case is perhaps the most significant surrogacy case yet,” said Andrew Kimbrell, policy director and counsel for the National Coalition Against Surrogacy in Washington, D.C. The lower court rulings against Johnson represented “the first time in Western legal history that anyone has said the birth mother is not a mother at all,” Kimbrell said.

The Calverts and Johnson in January, 1990, signed a contract calling for Johnson to give birth to a child in return for $10,000, paid in installments. The contract provided that the baby would be given to the Calverts “as their child” and that Johnson would relinquish “all parental rights.”

But after an embryo from the sperm and egg were implanted, a disagreement arose over contract terms and Johnson sent the Calverts a letter stating that if she was not paid in full immediately she would refuse to give up the child. Both sides filed lawsuits to establish rights to the child. The child, a boy named Christopher Michael, was born in September, 1990.

After a heavily publicized trial, Superior Court Judge Richard N. Parslow Jr. held that Johnson, by law, is not the mother, and that even if she were, she had given up her parental rights under the surrogacy contract.

The Court of Appeal declined to rule on the contract but found that under the state Uniform Parentage Act, Johnson could not be given parental rights because genetic blood tests showed she was not the natural mother. The appeals court conceded that it was acting in “unchartered territory” and urged the Legislature to take action on the issue “so that both parents and children can face the future with certainty over their legal status.”

Attorneys for Johnson appealed to the state high court, arguing that the appellate court wrongly relied on the blood test to determine parental rights. The ruling, the attorneys said, “says in all its absurdity that a woman who gives birth is not a mother.”

Lawyers for the Calverts replied that Johnson, in effect, was proposing a “three-parent family” for the child, which would represent “an intrusion of an outsider into the integrity of the family unit.”