Supreme Court Ends O.C. Surrogacy Fight : Law: Ruling preserves genetic parents’ custody of child carried to term by another woman.

The U.S. Supreme Court on Monday declined to review a precedent-setting Orange County case on surrogate motherhood, letting stand a state court ruling that gave genetic parents Mark and Crispina Calvert custody of a child carried to term by another woman.

“We’re just overjoyed with the decision,” said Mark Calvert, who was joined by his wife and their 3-year-old son, Christopher, at a news conference in their attorney’s office. “It’s been 3 1/2 years of trial and ordeal and we’re just real thankful that our nightmare is over.”

“They’re a family forever, and nobody’s every going to touch (them) again,” said attorney Robert Walmsley, who represented the couple in their effort to retain custody of Christopher in the face of a legal challenge by nurse Anna Johnson.

Even before he was born on Sept. 19, 1990, Christopher Calvert became the center of a nationwide debate over the rights of surrogate mothers, a wide-ranging argument that included advocates of banning the practice entirely and those who believe surrogate mothers should have parental rights.

The California Supreme Court set a national precedent when it ruled May 20 that Johnson had no rights to the child she called Matthew. While upholding the surrogacy contract as valid, the court reasoned that custody should go to the Calverts because they supplied the fertilized egg and “intended” to raise the boy.

Monday’s victory for the Calverts leaves Johnson still mourning for the little boy she also considered her own, even though she was impregnated with the couple’s egg and sperm and has no genetic ties to the child, her attorney said.

Johnson is also still coping with grief stemming from a miscarriage she suffered two days after the state Supreme Court ruling in May, said Richard C. Gilbert, her attorney.

The decision has also left both critics and supporters of surrogacy contracts disappointed that there will be no federal high court ruling on many of the nettlesome issues raised in the case. While the Supreme Court’s ruling Monday makes the Calvert-Johnson case the law of the land in California, it will do little to quell the debate over the rights of surrogate mothers, legal experts say.

“No single case or decision could settle an issue when there is such a widespread . . . dispute about reproductive technology and the struggle to determine what is a ‘parent,’ ” said Marjorie Shultz, a professor at the Boalt Hall School of Law at UC Berkeley.

“The court has missed the opportunity of the century,” Gilbert said. “We will respect the court’s decision, but we’re not happy about it.”

Johnson, a nurse and former Marine, now plans to pursue the issue in a new venue--Congress--and hopes to see federal regulation of surrogacy arrangements, Gilbert said.

The Calverts, a Tustin couple who could not bear children on their own, contracted in January, 1990, with Johnson to bear a child for $10,000. While she was pregnant, Johnson told the Calverts she wanted to keep the child.

In response, the Calverts sought a court order to enforce their contract with Johnson, which was provided by a Beverly Hills surrogacy agency. A judge later awarded custody to the Calverts, and Johnson filed a lawsuit contesting that arrangement.

The Calverts and Anna Johnson still have civil lawsuits pending against each other stemming from the dispute, Gilbert said.

Orange County Supervisor William G. Steiner, who as former director of the Orangewood Foundation was appointed the child’s guardian, said he is relieved that the case has finally come to a conclusion.

“It’s been a long, emotional process, and I’m glad its over. There is no more uncertainty,” he said. “I think Christopher is the real winner.”

Surrogacy arrangements, usually for money, date to biblical times. The book of Genesis tells of Abraham’s wife, Sarah, who could not produce children but arranged for her handmaiden to bear her husband’s son, Ishmael.

Of the more than 4,000 surrogate births in the United States since 1980, only a few dozen have involved gestational surrogates like Johnson, who have no genetic ties to the offspring.

The U.S. Supreme Court’s decision not to accept the case, issued without explanation, was interpreted in a variety of ways Monday. Steiner and the Calverts’ attorneys said the decision implied that the state court’s ruling was the proper one.

Opponents of surrogacy agreements criticized the justices as “legal cowards” who feared taking on a difficult issue.

“They are afraid to take this issue, and it’s negligence on their part,” said Andrew Kimbrell, counsel for the National Center Against Surrogacy in Washington. “For the first time in the history of Western civilization, a court has ruled a mother is not a mother.”

The Supreme Court’s refusal to accept the case does not necessarily reflect its position, because the justices agree to review only a fraction of the cases that come before them, UC’s Shultz said.

Many had hoped, however, that the court would take the case because of conflicting surrogacy laws and court rulings.

“This case has classic constitutional questions involved,” Kimbrell said.

But Prof. John Hill, who specializes in legal-medical issues at Western State University College of Law in Irvine, said he believes the case lacked the clear-cut federal questions needed for a high court review.

A law review article, in which Hill argued that a mother who sets out to have and raise a child should receive custody preference over a surrogate mother, was cited in the ruling by the California Supreme Court.

Advocates on all sides of the debate agreed, however, that it is time for Congress and states nationwide to draw up surrogacy legislation.

A bill authored by State Sen. Diane E. Watson (D-Los Angeles) and pending in the Legislature would strip surrogate mothers like Johnson of all rights to a child, unless they can prove that the parents are unfit.

The legislation is needed to protect the rights of all involved in the “rare but tragic instances where disputes arise,” Watson said. “The Supreme Court’s decision not to review the California surrogacy decision is welcome . . . however, it does not eliminate the need for regulation and monitoring of these agreements.”

Custody Battle Chronology

The U.S. Supreme Court’s decision Monday not to hear the appeal of surrogate mother Anna Johnson against biological parents Mark and Crispina Calvert ends a three-year custody battle:

Jan. 15, 1990: Crispina and Mark Calvert pay attorney $3,500 to arrange contract with Anna Johnson. Johnson signs as “surrogate”; Calverts sign as “natural father” and “natural mother.” Contract calls for Johnson to be paid $2,000 at end of first trimester, $2,000 after the second, $1,000 a month before birth, $1,000 a week after and $4,000 six weeks later.

March 16, 1990: Johnson requests first $2,000 payment one month early. Four months later she sends Calverts a letter threatening to keep the baby unless they immediately pay her the rest of her $10,000 fee.

Aug. 6, 1990: Johnson publicly says she will file suit seeking custody and parental rights over the baby because she has “bonded” with the child.

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 dispatch the baby to a foster home. Johnson instructs her attorney to allow Calverts to take the baby home with no prejudice to her rights and with daily three-hour visits.

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

Oct. 8, 1991: Court of Appeal upholds Parslow’s ruling, saying Johnson has no legal claim to the baby.

Jan. 23, 1992: California State Supreme Court agrees to hear case. It is the first surrogacy case in the court’s history.

May 20, 1993: State Supreme Court rules Johnson has no maternal rights to the child.

July, 1993: Johnson’s attorney petitions the U.S. Supreme Court to hear the case.

Oct. 4, 1993: U.S. Supreme Court declines to review, assuring Calverts of full custody.

Source: Los Angeles Times