Calif. court rules that baby belongs to genetic parents

October 23, 1990|By Orange County Register

SANTA ANA, Calif. -- Surrogate mother Anna Johnson lost her bid for parental rights to the 5-week-old boy she carried for an infertile couple when a judge ruled yesterday that she had no parental rights under California law.

The judge's ruling means that Mark and Crispina Calvert of Tustin, Calif., the child's genetic parents, will have permanent custody of the boy unless the decision is reversed by a higher court.

"I can tell you right now it is not my intention to 'split this baby' in an emotional sense and give him two mothers," said Orange County Superior Court Judge Richard N. Parslow Jr., talking to a packed courtroom.

The judge was referring to the biblical story of King Solomon, who when asked to determine which of two mothers should be allowed possession of a baby, told them to cut it in half. The child's actual mother refused to let the child be injured.

Judge Parslow's ruling could lead to a new definition of motherhood in which genetics is the primary criterion for determining parentage when a surrogate carries a child genetically unrelated to her.

Although the ruling is the first of its kind, it will not set precedent unless confirmed by a higher court.

Richard Gilbert, Ms. Johnson's attorney, has vowed to appeal the decision.

Ms. Johnson, 29, filed suit in August, seeking parental rights to a child created from the sperm and egg of the Calverts that she carried for nine months under a $10,000 surrogacy contract. She is the first surrogate mother to seek custody of a child not genetically related to her.

The judge also ruled that Ms. Johnson's twice-weekly visits with the child be discontinued because she had no legal rights on which to base visitation.

The boy, whom the Calverts call Christopher Michael, has stayed with his genetic parents since leaving the hospital Sept. 22. Ms. Johnson has visited the baby, breast-feeding him and snuggling with him during the three-hour visits.

During the trial, Mr. Gilbert had argued that the woman who gives birth to a baby is the natural, biological and legal mother.

Christian Van Deusen, attorney for the Calverts, and Harold Laflamme, the baby's court-appointed attorney, argued that genetics has consistently been used by courts to determine parentage. They said the surrogacy contract signed by Ms. Johnson and the Calverts amounted to a custodial agreement.

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