Stand-In Moms: What’s the Law? : State high court agrees to review important surrogacy case

Judges in California have done their best to sort out the extremely complex issues escaping from a modern-day Pandora’s box--and no issue fits that description better than surrogate parent arrangements.

These arrangements have been made possible by technological advances that allow, for example, one woman to bear the genetic child of another.

In the absence of clearer legislative guidance on surrogacy-for-pay agreements, the courts have treated surrogacy disputes either as standard contract cases or as custody battles.

One of these cases now has found its way to the state Supreme Court, which has agreed to consider the legal claims of a surrogate who gave birth under contract to a baby with whom she has no genetic link.

The lower-court judge in the case of surrogate Anna M. Johnson versus Mark and Crispina Calvert made a decision that was Solomon-like in its perceptiveness. Orange County Superior Court Judge Richard N. Parslow Jr. put the child’s interest first by establishing the biological primacy of his sponsoring parents and by saying that to allow the surrogate into the picture, in effect as a third parent, would only confuse the issue.

Most important, it would confuse the child, who would be caught between his genetic parents and the woman who actually bore him.

The lower-court ruling in this troubling case rested on the bedrock of a contract’s validity. It is that contract that now will be examined by the state Supreme Court.

It would take a profound shift from the lower court’s sound reasoning for the high court to discover a parental right for a plaintiff who essentially had let her womb out for rent. If the surrogacy contract is found invalid by the high court, it will have a huge impact on the Calvert family, and, potentially, on many other couples who cannot have children. Yet with a case of such potential import, it’s not surprising, and indeed is appropriate, that the Supreme Court has decided to review it. But we hope it affirms the lower-court ruling.

No matter what the court rules, its review should offer incentive for California to do better in providing ground rules for surrogacy arrangements when they are first drawn up. The current absence of such guidelines has left the courts to grope for the means to resolve these disputes by turning to whatever instruction can be found in family and contractual law. There are, however, efforts under way in the Legislature to get a better handle on surrogacy. That’s a good start.

While the state generally should be wary of surrogacy contracts for profit, it is possible that with careful provisions, supervision and counseling, reproductive science can fulfill the dream of childless couples.