THE nation's first custody battle involving a surrogate mother
and a test-tube baby, unfolding in Orange County, raises significant
legal and ethical questions, and may redefine parenthood.
The case involves an Orange County woman who gave birth to a
child to which she has no genetic relationship; she contracted with
a couple to bring their embryo to term. Now the women is sueing for
A court hearing is scheduled for Thursday to decide who will have
temporary custody of the boy, who was born last week in the town of
No matter how the judge rules, however, experts say other
conflicts are likely to arise as this new frontier of surrogacy
emerges into a world where few regulations and virtually no laws
"There really is no settled view still on how to approach these
problems," says Susan M. Wolf, a lawyer at the Hastings Center, a
medical-ethics research institute in New York. "Of all the
reproductive technologies, surrogacy raises questions the most
The new field, called "gestational" surrogacy, unites a wife's
eggs and husband's sperm in a petri dish through in vitro
fertilization and implanting the resulting embryos in another woman.
Unlike traditional surrogacy, in which the birth mother is
artificially inseminated with the father's sperm, such as occurred
in the celebrated Mary Beth Whitehead case, the surrogate mother
under this technique has no genetic ties to the child.
In Orange County, Anna Johnson, a single mother, agreed to bear a
child for Mark and Crispina Calvert for a total fee of $10,000. An
embryo created by the Calverts' egg and sperm in a test-tube was
implanted in her.
During the pregnancy, however, relations between the two sides
soured and Ms. Johnson sued for custody.
A Superior Court judge was to have decided interim custody Friday
but scheduled another hearing for this week. Until then, the
Calverts have been awarded temporary custody, with Ms. Johnson being
allowed daily visits.
The case raises the novel and fundamental question of who is the
parent - the birth mother or genetic mother?
The lawyer for Ms. Johnson argues that under California law the
woman who gives birth is the mother; he contends there is no statute
regarding the parental rights of a couple that donates an embryo.
The Calverts' attorney, however, argues that the court must
recognize and protect the biological link between mother and child.
"The case could totally rewrite American family law," says
William Pierce, president of the National Committee for Adoption.
Gestational surrogacy is still relatively rare but the practice
appears to be growing. By most estimates, there have been 50 to 80
such births in the United States in the three years since the
technology began to be used. By comparison, some 2,000 are estimated
to have been born using traditional surrogacy in that time and 4,000
since the late 1970s.
One reason for the smaller numbers is that gestational surrogacy
is more medically complex to perform and has a smaller chance of
producing a pregnancy and live birth. …