Justices Seem Dubious on Surrogate Mother’s Case : Appeal: Some jurists question motives of woman’s claim to baby she bore for an Orange County couple.

The state Supreme Court stepped warily Tuesday into the debate over surrogate motherhood, with some justices raising doubts about a woman’s claim to maternal rights to a test-tube baby she bore for a childless couple.

In their first review of the issue, the justices heard an appeal by Anna M. Johnson, a nurse who was denied custody of a baby boy she was paid to deliver from the sperm and egg of Mark and Crispina Calvert of Tustin in 1990.

Johnson’s lawyer, Richard C. Gilbert of Orange, contended that the U.S. Constitution required Johnson to be declared the legal mother even though she has no genetic link to the child.

“It is the relationship between the birth mother and her baby that is legally protected,” Gilbert said. “It tortures the English language to say that a woman (like Mrs. Calvert) who was never pregnant and never gave birth meets the traditional definition of the term mother. “

But several of the justices seemed dubious of Johnson’s bid for maternal rights--and leery of the child ending up with a father and two legally recognized mothers.

“Here we could have a genetic parent . . . and a gestational parent,” said Justice Edward A. Panelli. “Is that the traditional family unit?”

Chief Justice Malcolm M. Lucas wryly observed that it could prove awkward for a child to grow up with both a “mother” and a “genetic progenitor.”

Court members also raised pointed questions about Johnson’s ethics and motivation.

“Isn’t (Johnson’s) motivation driven by greed?” asked Justice Armand Arabian. He said that it appeared in this “rent-a-womb” case that Johnson wants to keep the Calverts’ money and the baby and then cash in on the fame she gains. Gilbert denied that Johnson has such intentions.

Justice Stanley Mosk, noting Johnson’s claim that she had not been paid her full fee for surrogacy, asked: “Is that the reason she’s here? She wants more?”

Justice Joyce L. Kennard, directing tough questions at both sides, noted that by traditional standards Johnson could be considered the mother because she had carried the child for nine months and undergone labor. “How can you deny all that?” Kennard asked.

A lawyer for the Calverts, Robert R. Walmsley of Santa Ana, replied that state statutory guidelines for determining parentage clearly mandate that the genetic parents be declared legal parents.

“We can’t deny that Anna Johnson had an important role, but does that confer a legal prescription that she is a parent?” asked Walmsley. “I think not.”

John L. Dodd of Santa Ana, a court-appointed attorney for the boy, also urged the court to reject Johnson’s claim to maternal rights. “The minor in this case can be served only by being raised in the traditional, two-parent family,” Dodd said. “To declare (Johnson) a parent would complicate the child’s life--and has never been recognized under law.”

Later in the argument, attorney Gilbert, apparently sensing defeat, told the seven justices that he hoped at least one would file a dissent favoring Johnson that could be cited in a later appeal to the U.S. Supreme Court.

“I would consider it a great victory to receive that one opinion,” he said.

It remained unclear during the hourlong hearing whether the justices, in addition to determining whether Johnson has any parental rights, would also decide the validity of surrogate-birth contracts.

Lawyers for the Calverts and the baby contended such contracts were valid, but Johnson’s attorney said they should be barred as a violation of public policy.

The case began when the Calverts, unable to have children after eight years of marriage, were approached by Johnson, the mother of a 4-year-old child. Johnson agreed to serve as a surrogate mother for $10,000, payable in installments, and to relinquish parental rights.

An embryo from the Calverts was implanted in Johnson and she began drawing the fee. But a dispute arose when Johnson sought accelerated payments. In a letter to the Calverts, Johnson said: “You can pay me the entire sum early so I won’t have to live on the streets, or you can forget about helping me . . . and not get the baby!”

The Calverts filed suit and a month later the baby was born, named Christopher by the Calverts and called Matthew by Johnson. The child was given to the Calverts and has remained with them since.

An Orange County Superior Court judge ruled that the Calverts were the “genetic, biological and natural” father and mother and entitled to retain custody. The decision was upheld by a state Court of Appeal in 1991.