LAW WATCH : Surrogate Confusion

The U.S. Supreme Court’s refusal to review a precedent-setting Orange County surrogacy case properly ends the legal battle over custody of one child, but it underscores the need for legislative guidance in a complex, emotionally charged area where science has outpaced law.

The high court rightly left standing a lower court ruling giving Mark and Crispina Calvert full custody of their child, Christopher, 3.

Doctors had taken an egg from Crispina Calvert, who is unable to bear children, and fertilize it with her husband’s sperm. A surrogate, Anna Johnson, agreed to carry the resulting embryo to term in exchange for $10,000. But Johnson later said she had bonded with the fetus and demanded to share custody of the child with the Calverts.

An Orange County judge decided that the boy’s welfare resided in the Calverts having full custody.

The California Supreme Court also found for the Calverts, proclaiming surrogate mother contracts legal and the pact between Johnson and the Calverts valid.

At the same time, the justices recognized that surrogacy contracts are quite unlike other types of contracts and explicitly asked the California Legislature for statutory guidance so the courts would not have to be referees in future disputes.

Because the Calverts are Christopher’s biological parents, this case was relatively clear-cut. Future surrogate relationships, such as when a surrogate donates the egg as well as her womb, well might raise claims not present in the Calvert case. Here, the Legislature could help.