A Judge Ends a Wrenching Surrogacy Dispute, Ruling That Three Parents for One Baby Is One Mom Too Many

updated 11/05/1990 at 01:00 AM EST

originally published 11/05/1990 01:00AM

The battle lines were uniquely drawn. Three parents were fighting for custody of a newborn child to whom each had made a biological contribution. Christopher Michael, now 6 weeks old, owes his existence to a surrogate mother, Anna L. Johnson, who gave birth to him Sept. 19, and to Mark and Crispina Calvert, an Orange County, Calif., couple who are his genetic parents. Desperate to start a family, the Calverts had signed a surrogacy agreement with Johnson, a nurse working with Cris Calvert at a Santa Ana, Calif., hospital. After three of the Calverts' fertilized eggs were implanted in her uterus, Johnson became pregnant with Christopher.

A splendid achievement of medical technology? Yes, but one that had already become tainted by controversy. During her pregnancy, Johnson had a change of heart. In the seventh month she sued to keep the infant. For the first time in U.S. history, a judge was asked to decide if a surrogate mother has rights to the baby she bears when she has no genetic relationship to it. Last week, Judge Richard N. Parslow of the Orange County Superior Court awarded the baby to the Calverts.

In the last decade, between 1,000 and 2,000 babies were born in the U.S. through surrogate contracts. For the most part, surrogacy has fulfilled the dreams of parenthood for those who are infertile. But in some 5 to 10 percent of such cases, the process ends in legal wranglings and heartbreak for one or both sides.

The California case that set Mark and Crispina Calvert against Anna Johnson generated the same kind of national media attention as the celebrated battle for Baby M in New Jersey that ended two years ago. In that case, however, the surrogate mother, Mary Beth Whitehead, was also the genetic mother in that she donated the egg. (She eventually won visiting rights, though custody of the child was awarded to William Stern, the father.) In the California dispute, Anna Johnson contributed no genetic material.

While conceding Johnson's role in "nurturing, feeding and protecting" the fetus for nine months, Judge Parslow nonetheless described the surrogate mother as a "genetic stranger" whose position is akin to that of a foster parent. "A three-parent, two-natural-mom situation is ripe for crazy-making," Parslow said. "I believe he should be raised exclusively by the Calverts, his natural parents."

On hearing the judge's decision, the Calverts—Crispina, 36, and Mark, 34—wept and embraced. "I can breathe now," said Cris. Anna Johnson, 29, was not in court, but her lawyer, Richard Gilbert, vowed an appeal.

An extended clash over parental claims was the last thing that occurred to the Calverts when they began their quest for a family. Crispina Baldovino, who immigrated to the U.S. from the Philippines in 1979 and is now a registered nurse, and Mark Calvert, an insurance underwriter, were married in 1982. Two years later, Cris underwent a hysterectomy in which her uterus had to be removed but not her ovaries: She produced eggs though she could no longer give birth. Still the couple yearned to have children and considered adopting. "But," Mark says, "we really wanted some genetic link."

In the autumn of 1989 Cris was introduced to co-worker Anna Johnson. An exmarine and the single parent of a daughter, Erica, now 3, Johnson was then a nurse's aide, later a licensed vocational nurse. From all accounts she responded enthusiastically when the delicate subject of surrogacy was raised. "I enjoyed my first pregnancy," she told PEOPLE. "And I like being pregnant."

In a private agreement signed on Jan. 15, the fee was set at $10,000, plus medical expenses and a monthly allowance, all to be paid on a set schedule. Two days later, the Calverts underwent in-vitro procedures at a local clinic, and on Jan. 19 three of the eggs were implanted. On Feb. 2, tests showed that Anna Johnson was indeed pregnant.

Despite all the high promise, however, relations between the Calverts and the surrogate mother turned sour. The Calverts contended that Johnson repeatedly demanded payments ahead of schedule, while Anna accused the Calverts of breaches of contract. The quarrel began to heat up in June, when Johnson claimed she went into premature labor, and a dispute arose over who was to drive her to the hospital. According to Johnson, that was when she began to question the Calverts' fitness to be parents and to consider keeping the baby herself.

Johnson filed a lawsuit for custody on Aug. 13. After the birth and while the trial was pending, Christopher Michael—so named by the Calverts—was taken home by Cris and Mark, while Anna was allowed twice-a-week visits. In the end. Judge Parslow ruled that the surrogate mother in this case had not "bonded" with the child during pregnancy sufficiently to warrant parental rights.

The Calvert-Johnson case has renewed debate among doctors, lawyers and medical ethicists as to whether surrogacy is a compassionate solution to the heartbreak of infertility or whether it is no more than an exploitive, high-tech form of baby farming. Most experts decry any do-it-yourself surrogate arrangements, arguing instead for careful screening and psychological evaluations of prospective surrogates. In handing down his decision Parslow urged California lawmakers to establish ground rules governing the growing practice of surrogacy.

And what of Christopher Michael Calvert? Will the storm attending his arrival leave lasting scars? Holding hands, looking into each others eyes for reassurance, the Calverts remain hopeful. "If you give a child a loving environment, he will understand we sought him, that we wanted to love a child so much we were willing to go through whatever was necessary," says Mark. "Even with all the turmoil, we think this is a miracle baby."

—Dan Chu, Nancy Matsumoto and Lorenzo Benet in Orange County

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