State High Court Denies O.C. Surrogate Custody : Law: Landmark ruling rejects maternal rights for woman paid to bear child. Such contracts held valid.

Setting a new legal standard for surrogate mothers, the California Supreme Court ruled Thursday that an Orange County woman who bore a baby for another couple has no maternal rights to the child.

The court also held that contracts in which a woman agrees to serve as a surrogate mother are valid in California despite the absence of a law adopted by the Legislature.

The closely watched case is the first in the nation to decide who is the natural mother of a child: the woman who provides the ovum or the woman who gives birth.

The justices concluded on a 6-1 vote that the crucial factor in determining maternity in such cases is the intent of the two women who together fulfill the biological role of mother.

“We conclude that . . . she who intended to procreate the child--that is, she who intended to bring about the birth of a child that she intended to raise as her own--is the natural mother under California law,” the court ruled, in a majority opinion written by Justice Edward A. Panelli.

But in a stinging dissent, Justice Joyce L. Kennard, the only woman on the high court, argued that the primary factor in deciding custody should be what is in the best interests of the child. She also said the role of the birth mother “should not be devalued.”

The decision is another legal setback for Anna M. Johnson, a nurse who carried the fetus of a childless Tustin couple for a $10,000 fee, then changed her mind and sought to keep the baby.

Johnson’s attorney, Richard C. Gilbert, said that the ruling “is profound only for its stupidity” and added that he will appeal the case to the U.S. Supreme Court.

Mark and Crispina Calvert, the genetic parents who have had custody of the boy since he was born nearly three years ago, were “ecstatic” over the court’s landmark decision but asked to be left in peace, said their attorney, Robert Walmsley.

“We are just an average couple and only wanted to have a child of our own,” Mark Calvert said in a prepared statement. “We never wanted to make history or set a precedent.”

But Walmsley, speaking to reporters in Santa Ana, said: “Today the (state) Supreme Court has rendered a decision that changes how we determine parentage. We can now determine who is a mother other than by the fact that she gave birth.”

In her dissent, Kennard criticized the court majority for relying on the intent of the genetic and birth mothers to break the “tie” over who should have custody of the baby. Kennard also called on the Legislature to enact laws regulating the practice of surrogates and setting standards similar to proceedings for adoption.

“A pregnant woman intending to bring a child into the world is more than a mere container or breeding animal; she is a conscious agent of creation no less than the genetic mother, and her humanity is implicated on a deep level,” Kennard wrote.

The court’s ruling enters an area of law that has not kept pace with technology. Advances in science have created a new concept in childbirth--the “gestational surrogate”--that defies traditional ideas of motherhood.

Unlike the Orange County case, previous court rulings, such as the “Baby M” decision in New Jersey, have centered on surrogate mothers who provided the ovum and so had a genetic claim to motherhood.

The California decision also marks the first time a high court has enforced a surrogacy contract, said Harvard law professor Martha Field. “It’s really unfortunate public policy,” she said. “It puts a contract above family law, which is against everything we know, which is respect for the birth mother.”

Justice Armand Arabian filed a separate opinion agreeing that Crispina Calvert should be declared the natural mother but arguing against the broad acceptance of surrogacy contracts as valid.

“I would not move beyond the available legal mechanisms into such socially and morally uncharted waters,” he wrote. “ . . . To date, the legislative process has failed to produce a satisfactory answer. This court should be chastened, not emboldened by that failure.”

Some legal experts have questioned whether a court ruling against the surrogate mother will lead to exploitation of poor women who carry children for others and then have no say over the fate of the babies.

The court majority, however, rejected such arguments, declaring: “There has been no proof that surrogacy contracts exploit poor women to any greater degree than economic necessity in general exploits them by inducing them to accept lower-paid or otherwise undesirable employment.”

In the Orange County case, the Calverts wanted to produce their own genetic offspring. A hysterectomy prevented Crispina Calvert from carrying a baby, but she was able to produce fertile eggs.

Johnson, a single mother of one child, heard of the Calverts’ plight and offered to serve as a surrogate. The Calverts and Johnson agreed on a contract giving the surrogate mother $10,000 in a series of payments.

While Johnson was pregnant, she began to insist on getting paid earlier and threatened to keep the baby if she did not receive the money. In response, the Calverts went to court seeking an order to enforce their contract.

When the baby was born in September, 1990, Johnson agreed in court to let the boy go home with the Calverts rather than send him to a foster home. At first, the court allowed her to visit the baby for three hours a day.

A month later, a judge awarded custody to the Calverts, who named the boy Christopher Michael. Johnson, who called him Matthew, lost all visitation rights.

When the case reached the state Supreme Court, the American Civil Liberties Union filed a brief urging the court to recognize both Johnson and Calvert as mothers of the child. The civil rights group argued that the surrogacy contract was not valid because it gave away Johnson’s rights to the child before birth.

But the court ruled that Johnson’s decision to bear the Calvert’s baby was a different matter than if she had given birth to her own child and gave him up for adoption.

“A woman who enters into a gestational surrogacy arrangement is not exercising her own right to make procreative choices; she is agreeing to provide a necessary and profoundly important service without (by definition) any expectation that she will raise the resulting child as her own,” the court said.

The court’s ruling was met with disappointment by some legal experts, who fear that the ruling will legitimize the use of surrogate mothers.

“This is both a tragic and historic day,” said Andrew Kimbrell, counsel for the National Center Against Surrogacy in Washington. “We have in effect turned childbearing into a business, a commodity. History and Western law have always been grounded in the belief that the woman who gives birth is the birth mother.”

But attorneys appointed by the court to represent the interests of Christopher Calvert said the decision is best for the boy.

“Everyone should be celebrating here because Christopher is the clear winner,” said Orange County Supervisor William G. Steiner, who at one point was appointed the child’s guardian. “I think Anna Johnson had a special relationship, but bonding does not occur just with the birth of the child.”

Times staff writer Jodi Wilgoren in Santa Ana contributed to this story.

Big Setback for Surrogates

The California Supreme Court has ruled that an Orange County woman who contracted to bear a child conceived from the sperm and egg of a Tustin couple has no parental rights to the child.

AT ISSUE * Are surrogate mother contracts legal in California? Supreme Court said yes. * Do these contracts violate public policy? Court said no. * Was Anna Johnson’s contract legal and enforceable? Court said yes. * Is Anna Johnson entitled to any parental rights? Court said no.

EXCERPTS FROM THE DECISION * “To outlaw these contracts,” he said, would deny “a personal and economic choice” for the surrogate mother and “deny intending parents what may be their only means of procreating a child of their own genetic stock.” Writing for the majority: Justice Edward Panelli * Asserting the court was allowing “unregulated” surrogacy: “A pregnant woman intending to bring a child into the world is more than a mere container or breeding animal; she is a conscious agent of creation no less than the genetic mother.” Dissenting opinion: Justice Joyce Kennard

Source: California Supreme Court * LEGISLATION IN HOPPER: State bill would go further in denying surrogates’ rights. A26

* BABY BUSINESS BOOMING: Surrogacy agencies prosper; most customers satisfied. A26