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 custody.
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 Orange.
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 exist.
``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 starkly.''
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. It is also usually more expensive.
On the other hand, it is appealing to some couples because it allows them to be the full genetic parents of the child. At the Center for Surrogate Parenting in Beverly Hills, Calif., a group that arranges such partnerships, 50 percent of the people now coming in are asking for gestational surrogate arrangements.
``With all things being equal, people do like to have their own biological child,'' says Ralph Fagen, a director of the center.
The practice, though, raises questions beyond the legal ones surfacing in an Orange County courtroom. Churches, women's groups, and others argue that: hiring a woman to give birth to a child constitutes ``baby selling''; it is exploitative - uses women as ``fetal containers''; it can easily be abused - women who don't want to bother with pregnancy can simply pay someone else to do it; having a child born under such circumstances may affect the other children of the surrogate mother as well as the child itself.
Critics say gestational surrogacy raises another problem: the potential for racial discrimination. They claim that, because the surrogate mother has no genetic ties to the child, a couple may be more inclined to hire a minority woman to carry the child, either for financial or other reasons.
``It brings up unique discrimination questions that traditional surrogacy doesn't,'' says Andrew Kimbrell of the National Coalition Against Surrogacy in the United States.
Those in the medical and legal communities who favor use of surrogacy dispute these suggestions. They argue women should have the right to determine the use of their own wombs. They note that the fees paid in surrogacy contracts are for services provided, not for buying a baby.
``These children are all being viewed as valuable in themselves,'' says Michael Shapiro, a University of Southern California law professor, who favors surrogacy but thinks there should be regulations governing it. ``They are not being viewed as fungible, interchangeable commodities.''
Mr. Fagen of the Center for Surrogate Parenting says he can show evidence that the children of surrogate mothers and those born under such arrangements not only are not adversely affected by the experience but are helped.
Fagen also says that, to dispel even the suggestion of discrimination, his organization does not allow gestational surrogacy arrangements between people of different races.
Above all, supporters say, surrogacy - gestational or otherwise - gives people who can't have children by normal means one more alternative.
In the national debate that ensued after Mary Beth Whitehead sought to regain custody of her daughter in the Baby M case, roughly 10 states passed laws governing surrogacy. A few outlawed it where money was exchanged. Will states now revisit the issue?
One likely to is California. An advisory panel appointed by legislators recently recommended prohibiting commercial surrogacy in the state. But on an issue so fraught with emotion, there is no guarantee how - or even whether - lawmakers might act.