Genetic mother wins surrogacy case California ruling is to be appealed

May 21, 1993|By Orange County Register

SANTA ANNA, CALIF. — SANTA ANA, Calif. -- In a sweeping decision that boosts the rights of infertile men and women who use a surrogate to have a child, the California Supreme Court ruled yesterday that Christopher Michael Calvert has one mother -- Crispina Calvert, the woman whose egg created him, the woman who gave him his large brown eyes and his pixie smile.

Surrogate mother Anna Johnson will petition the U.S. Supreme Court to review the decision, her attorney, Richard Gilbert.

But attorneys familiar with both courts said the federal judges are not likely to intervene on a ruling that relies so heavily on a state's family law.

It's been three years since Ms. Johnson became pregnant with a zygote created from Ms. Crispina's egg and Mark Calvert's sperm. During the pregnancy Ms. Johnson and the couple had disputes and both filed competing petitions for parenthood in Orange County Superior Court a month before the baby was born.

The court's 28-page decision reflected a 6-to-1 vote by the court justices. It was accompanied by an unusually impassioned 38-page dissent by Justice Joyce L. Kennard, the only woman on the court.

The majority opinion written by Justice Edward A. Pinelli ruled that Crispina Calvert's genetic relation to the boy was not the sole reason for determining parentage in the case. The two lower court opinions had relied heavily on genetics, the only method of determining disputed parentage in the state's Uniform Parenting Act.

By virtue of giving birth to the child, Ms. Johnson presented a plausible proof of maternity, while Ms. Calvert had an equal proof virtue of genetics, the court said.

"When the two means do not coincide in one woman, she who intended to procreate the child -- that is she who intended to bring about the birth of the child that she intended to raise as her own, is the natural mother under California law," the opinion states.

Such reliance on intent was surprising, said Robert Walmsley, attorney for the Calverts. "As of today, we know we can determine who is a mother by another way other than by who has given birth to a child. That is very, very significant."

That foundation makes it possible that the ruling could apply in other situations such as one in which a third person -- who supplies the egg and carries the child -- could be determined not to be the child's legal mother, Mr. Walmsley said.

"This may alter the balance to the side of the prospective parents. Until now it was perfectly equal and in court these issues of policy or intent could not be considered. It bodes very well for surrogacy," said William Handel, co-director of the Center for Surrogate Parenting in Beverly Hills.

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