SANTA ANA, Calif. -- In an arrangement that was likened to the biblical tale of King Solomon, surrogate mother Anna L. Johnson tearfully agreed yesterday to temporarily surrender custody of the baby she bore to the infertile couple who hired her.
Her agreement will allow Mark and Crispina Calvert, whose sperm and egg were implanted in Ms. Johnson, to take the baby boy home and keep him until another custody hearing can be held Thursday.
Ms. Johnson, 29, is the first surrogate mother to ask a judge for custody and parental rights to a baby that is not genetically related to her.
The Calverts smiled and hugged each other in court when they heard the news yesterday. "We're overjoyed," Mr. Calvert told reporters. In a related development, the Calverts' lawyer said Thursday that preliminary results from blood tests showed a "greater than 99 percent certainty" that the infant, who weighed 6 pounds, 10 ounces at birth Wednesday, was the Calverts' child. DNA tests are expected to confirm that result next week.
Ms. Johnson and the Calverts had been unable to agree on a custody arrangement. As a result, Orange County Superior Court Judge Richard N. Parslow Jr. was about to place the baby in a foster home to avoid giving either side a "bonding advantage," according to lawyers who met with Judge Parslow for five hours yesterday.
The Calverts dug in their heels, flatly refusing to allow Ms. Johnson to take the baby home with her, attorneys said. That left two choices: The baby could be placed in a foster home that had been chosen by his court-appointed guardian, William Steiner, or he could go home with the Calverts.
It was Ms. Johnson, calling from the hospital in tears, who broke the standoff.
"Anna couldn't live with the idea of her child being in a foster home," said her lawyer, Richard C. Gilbert.
"Anna is a mother. She saw her baby in danger, and like any mother, she did what she could to save it. She said, 'Do anything to keep him out of the foster home.' "
Attorneys who attended the in-chambers hearing said that Mr. Gilbert relayed Ms. Johnson's sentiments to Judge Parslow. In response, Mr. Gilbert said, Judge Parslow asked: "So, this is something like Solomon, where one party stands up and says, 'Don't tear up the baby'?"
In the biblical tale, Solomon offered to cut a baby in half because two women both claimed to be its mother. Ultimately, the baby's true mother chose to surrender her child to the other woman rather than see it harmed.
In the California case, the infant's court-appointed attorney, Harold F. LaFlamme, painted a less heroic portrait of the surrogate mother. He said Ms. Johnson and her attorney "just caved in" when they realized the judge would not give the baby to either party.