SANTA ANA, CALIF., OCT. 22 -- An Orange County Superior Court judge today denied a surrogate mother parental rights and custody of the child she carried to term for a couple unable to bear children.
It was the first custody dispute involving a surrogate with no proven genetic relationship to the child. Judge Richard N. Parslow Jr. also terminated her twice-weekly visits.
Twenty-nine-year-old Anna L. Johnson was not in court to hear the judge's ground-breaking decision but genetic mother Crispina Calvert, 36, wept while her husband Mark, 34, smiled and comforted her.
The Calverts signed a contract with Johnson last January, agreeing to pay her $10,000 plus expenses to have an embryo implanted in her uterus and to carry the resulting pregnancy to term. The embryo was formed by the "test tube" fertilization of Cristina Calvert's egg by sperm from her husband. Calvert was unable to become pregnant because her uterus had been surgically removed.
A single-mother with a 3-year-old daughter, Johnson said she became emotionally attached to the fetus at three months, although she wrote the Calverts during her seventh month of pregnancy demanding the $5,000 balance. In August, Johnson sued the Calverts for custody and damages, claiming they had neglected her during the pregnancy. She later dropped the charges of negligence and fraud in hopes of sharing in the child's upbringing.
Johnson gave birth to a 6-pound, 10-ounce baby boy, whom she calls Matthew, on Sept. 19 at St. Joseph Hospital in Orange, Calif. Johnson agreed to place the child with his genetic parents until the court made a custody decision.
Parslow, saying he was unwilling to "split this child emotionally between two parents," compared Johnson to a foster parent who provides "care, protection and nurture" to a child during a period of time when the biological mother cannot be present.
Upon the mother's return, the foster parent must "give the child to the mother, walk away and live with it. That's the way it works," he said.
Parslow acknowledged Johnson's "substantial contribution" to the baby's life, but said that having three natural parents was not "in the best interest of the child." Parslow questioned Johnson's motives in the custody case.
The next step for Johnson is the appeals court. Johnson later told a news conference that she plans to appeal ultimately to the U.S. Supreme Court if necessary.
The baby's court-appointed guardian, William Steiner, anxious to fill in Christopher Michael, the name chosen by the Calverts, on the birth certificate that has been blank for five weeks, said, "This is in the baby's best interest." Johnson had an emotional parting with the baby on Friday and said she would not be in court because, "she didn't want to come to an execution," Steiner said.
Mark Calvert, after the judge's decision, said the only bonding Johnson has is "with the press's cameras."
When asked whether the baby will be told about his surrogate mother, Mark Calvert said, "When the time comes, our son will be aware of the circumstances."
In a 1988 New Jersey Supreme Court ruling, the "Baby M" case, the surrogate contract was termed invalid. The couple was given custody of the child and the surrogate mother, in this case also the genetic mother, was recognized as a parent and allowed regular visits.
The Calvert-Johnson differed from the "Baby M" case because Johnson is not genetically linked to the baby. Parslow said the Calverts are the "genetic, biological and natural" parents.
"This is one of those cases where the legislative system is trying to catch up with medical technology," said Christian Van Deusen, the Calverts' attorney.