Ruling Seems Sure to Escalate Ethical Debate

Far from settling the issue, Thursday’s state Supreme Court ruling on surrogate parenting seems destined to intensify the ethical debate that was born in 1990, along with a child named Matthew by the woman who delivered him and Christopher by the couple who planned to raise him.

The landmark decision in the dispute that pitted surrogate mother Anna M. Johnson against genetic parents Mark and Crispina Calvert of Tustin has done little to bring together those who believe surrogacy exploits poor women for breeding purposes and those who see it as a godsend for infertile couples.

“Any ruling that does not recognize Anna Johnson as the birth mother with rights will give a green light to practices that exploit women,” said Andrew Kimbrell, counsel and co-founder of the National Coalition Against Surrogacy, based in Washington.

“The court is saying that women are nothing more than a womb to be rented for nine months,” said Kimbrell, author of a new book titled “The Human Body Shop.”

But couples who desperately try and fail to have a child of their own say critics should not judge surrogacy contracts until they feel the pain of learning they may never be able to produce their own offspring.

Ralph Fagen, co-director at the Center for Surrogate Planning in Beverly Hills, the largest operation of its kind on the West Coast, said such fears are greatly exaggerated and underestimate the surrogate mothers who agree to give the gift of life.

“This ruling will serve to keep the option of surrogate parenting open and viable for those couples as well as the women who choose to help them,” Fagen said. “In an age where female infertility is dramatically increasing, mainly due to changes in lifestyle, surrogacy is more of an option than ever for the one in six couples who are infertile.”

Orange County nurse Johnson agreed to undergo a surrogacy pregnancy in January, 1990, carrying a fertilized egg from co-worker Crispina Calvert and her husband, Mark, who agreed to pay Johnson $10,000.

But just weeks into the pregnancy, Johnson, accusing the Calverts of “fetal neglect,” claimed to have bonded with the fetus and announced she would seek parental rights even though the child was not genetically related to her, according to a lower court decision.

The Calverts went to court, seeking to enforce the contract. The six-pound, 10-ounce boy was born Sept. 19, 1990. Johnson named him Matthew and the Calverts called him Christopher. He remained with the Calverts during years of court battles.

Thursday’s ruling marked the third judicial decision that Johnson had no right to the child that she agreed to give away for payment.

Surrogacy--seeking a woman to bear a child, usually for pay, dates back at least to biblical times. The Book of Genesis tells of Abraham’s wife, Sarah, who could not bear children and begged Abraham to have sex with her handmaiden, who bore the couple a son, Ishmael.

Few involved in the debate want to criminalize surrogacy outright. It is difficult to find fault with a couple who want a child of their own, an infant with his father’s eyes or her mother’s dimples, opponents admit.

The Catholic Diocese of Orange, however, says surrogacy is ethically and morally wrong. The church encourages couples to adopt if they want children.

For many, the most distasteful aspect of surrogacy is the fee paid to birth mothers, and many opponents say they would not be against surrogacy contracts if the birth mothers were paid only medical expenses. That would ensure that greed is not an element of the arrangement.

“It would take the commercial aspect out altogether,” said USC Law School professor Alexander M. Capron, who specializes in medical and legal issues.

Many feminists, while uncomfortable with the idea, say that a woman must have an absolute right to use her body in any way she pleases, including to bear children for other women.

Additionally, they say, since women alone are capable of bearing a child, they should be paid for their invaluable service.

“You can’t say that a woman has the right to choose to have an abortion, but she can’t use her body and get paid for a service,” said Linda Joplin, state coordinator for the National Organization for Women. “Women must have full control of their bodies.”

Harvard law professor Martha Field, who has written a book on surrogacy, said she believes that birth mothers should be able to change their minds shortly before or after births, a choice adoption laws allow.

“This (ruling) is really very sad, especially in the case of gestational surrogates, because there is a very dangerous risk of interracial exploitation,” Field said. “A white couple can get a black or Latino woman to have their child for them and still get a white child.”

In gestational surrogate arrangements, a woman carries the fertilized egg of a couple and bears a child to whom she is not genetically related. In other surrogacy arrangements, women are artificially inseminated by the child’s father.

But Prof. William H. Shapiro at the USC Law Center said exploitation claims are myths. Few surrogacy cases are contested, and there is no evidence that women are suffering because of such contracts, he said.

“It’s unutterable rubbish,” Shapiro said. “The risks are greatly exaggerated and the benefits are greatly underplayed.”

Prof. Marjorie Shultz of the Boalt Hall School of Law at UC Berkeley said the key issues involved are contracts and intents, much in keeping with the court’s majority decision.

“From the start, (Johnson’s) intention was to turn the child over and the parents intended to raise the child. That cannot be ignored,” she said. “We have to be responsible for our decisions.”

Jon Davidson, senior staff counsel for the American Civil Liberties Union in Los Angeles, which filed a legal brief asking the state high court to recognize both Johnson and Crispina Calvert as mothers, said children cannot be bought and sold through contracts.

But even physicians who have employed cutting-edge medical technology to help the infertile say they have ethical dilemmas about surrogacy. Dr. David Diaz, director of the reproductive endocrinology program at Martin Luther Hospital in Anaheim, last November gained renown for helping a 53-year old grandmother, Mary Shearing of Orange, give birth to twin daughters after her insemination with an egg donated by a younger woman.

But Diaz said he will not help women bear children for others both because hospital policy forbids it and because he worries about the ramifications.

“I feel there is too much emotional involvement of the biological mother and it is very scary for everyone concerned,” he said.

Vicki Mays, a 29-year-old accountant from Mission Viejo, is in the midst of her second surrogate pregnancy for the same couple. Mays, who used the $13,000 payment from the first contract for a down payment on a house, said she can’t understand why Anna Johnson has waged a legal war for custody.

“I feel like I am special to (the first child), but not like I am his mother,” she said. “ I feel like a godmother or aunt.”

Times staff writer Leslie Berkman contributed to this report.