It's All in the (Parental) Genes

By Susan Tifft

The challenge was familiar to King Solomon: how to choose between two women, each declaring herself to be the child's mother. This time, however, one claimed motherhood because she had donated her genes, the other because she had donated her womb. That was the issue last week before California Superior Court Judge Richard Parslow, who broke new legal ground by awarding a test- tube baby to the genetic parents rather than to the surrogate mother. The woman had contracted to carry it for $10,000 and then changed her mind, saying she had "bonded" with the infant. "A three-parent, two-natural-mom situation is ripe for crazy-making," said Parslow. "I decline to split this child emotionally between two mothers."

The ruling meant that biological parents Crispina and Mark Calvert of Orange County, Calif., could finally fill out the birth certificate for their son Christopher Michael, which has remained blank since the boy's birth on Sept. 19. The surrogate mother, nurse Anna Johnson of Garden Grove, Calif., vowed to appeal all the way to the U.S. Supreme Court, if necessary, to gain custody. "I'm in a state of deep mourning for my son," she said.

Parslow's ruling took the question of maternal rights one step beyond the celebrated Baby M. case in New Jersey in 1987. In that decision Mary Beth Whitehead was denied custody of the child she contracted to bear, but she was later granted visitation rights. Whitehead had been impregnated through artificial insemination by the husband of the couple who hired her and therefore was the infant's genetic mother.

Johnson, however, is biologically unrelated to the Calverts' baby, who was conceived by joining Mark's sperm and Crispina's egg in a Petri dish. (Crispina was unable to carry a baby because of a partial hysterectomy.) The fertilized embryo was implanted in Johnson's uterus last January.

Johnson engaged in "nurturing, feeding and protecting" the Calverts' child and in that way was much like a foster parent, said Judge Parslow. But, he continued, she was still a "genetic stranger" to the infant and therefore had no legal right to claim parenthood.

The ruling applies only in California, but it should be received as welcome news by the nation's millions of infertile couples. Surrogates' rights advocates were outraged. "We are entering into very dangerous times if we allow this decision to stand," said Ramona Ripston, executive director of the American Civil Liberties Union of Southern California. Countered the Calverts' attorney, Christian Van Deusen: "Males can sell their semen. Why can't women as a matter of law become nine-month foster mothers by carrying another couple's child?"

Johnson's appeal is expected to be heard no later than April. There is a good chance that Judge Parslow's decision will not stand. "After all, the state law in California says that the birth mother is the mother," points out Jeremy Rifkin, ecological gadfly and co-chairman of the National Coalition Against Surrogacy, a group that has successfully lobbied in most of the 13 states that have laws banning commercial surrogacy.

Yet the use of surrogates with no biological link to the children they bear is almost sure to grow. In the past three years, about 80 infants have been born to so-called gestational surrogates, most of them in the U.S. And as biotechnology proceeds, courts are likely to see more cases reinterpreting the once simple legal concept of parenthood.

With reporting by Sylvester Monroe/Los Angeles