Justices Cool to O.C. Surrogate Mother’s Case

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 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.

From their questions, the justices indicated they may not decide that issue when they rule on the Johnson case within 90 days.

Last year, the Legislature passed a bill that would recognize and regulate surrogate contracts. But the measure was vetoed by Gov. Pete Wilson, who said a comprehensive regulatory scheme was premature and that current disputes could be settled by existing statutes.

The Calverts attended Tuesday’s hearing, quietly clasping hands and listening attentively as the justices fired questions at attorneys. Johnson did not attend.

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.

Surrogacy Players and Path

The California Supreme Court has heard its first surrogate parent case, that involving Mark and Crispina Calvert and surrogate mother Anna Johnson. Here are the major players in the case and the path the case took from conception to courtroom.

THE PLAYERS

Mark and Crispina Calvert: The Tustin couple who supplied the egg and sperm implanted in surrogate mother Anna Johnson.

Anna Johnson: Colleague of Crispina Calvert who agreed to bear the Calvert child for $10,000.

Christopher Michael Calvert: Child born to Johnson two years ago. Since birth he has lived with the Calverts.

Richard N. Parslow Jr.: Orange County Superior Court judge who gave custody to Calverts.

Robert Walmsley: Calverts’ attorney.

Richard C. Gilbert: Johnson’s attorney.

THE PATH

October, 1989: While working at Western Medical Center-Santa Ana, Crispina Calvert learns of a nurse, Anna Johnson, who is interested in being a surrogate mother.

Jan. 15, 1990: Calverts pay an attorney $3,500 to arrange a contract. Johnson signs as “surrogate”; Calverts sign as “natural father” and “natural mother.” The contract calls for Johnson to be paid in installments totaling $10,000 as pregnancy advances.

Jan. 17, 1990: Six eggs are removed from Crispina Calvert’s ovaries and fertilized in a petri dish. Two days later, three embryos are implanted in Johnson. Two weeks later, blood tests confirm Johnson’s pregnancy.

March 16, 1990: Johnson requests the first $2,000 payment one month early.

July 23, 1990: Johnson sends the Calverts a letter threatening to keep the baby unless they immediately pay her the rest of her $10,000 fee.

Aug. 6, 1990: Angry with the Calverts over money and accusing them of “fetal neglect,” Johnson goes public with the news that she will file suit Aug. 13 seeking custody and parental rights over the baby. She claims to have “bonded” with the fetus.

Sept. 19, 1990: Johnson gives birth to 6-pound, 10-ounce boy.

Sept. 21, 1990: Superior Court Judge Richard N. Parslow Jr. holds interim custody hearing and is prepared to send baby to foster home. Johnson instructs her attorney to allow the Calverts to take the baby home with no prejudice to her rights and with daily three-hour visits. A week later, the judge reduces Johnson’s visits to twice a week.

Oct. 9, 1990: A hearing begins in Superior Court to determine legal parents of the baby.

Oct. 22, 1990: Judge decides in favor of the Calverts, denies Johnson visitation rights and rules that surrogacy contracts are enforceable.

Oct. 8, 1991: 4th District Court of Appeal in Santa Ana upholds Parslow’s ruling.

Jan. 23, 1992: State Supreme Court sets aside ruling by 4th District Court of Appeal and agrees to hear case.

Feb. 2, 1993: State Supreme Court hears oral arguments.

Source: Los Angeles Times reports