Surrogate Ruling Breaks Ground

THE decision this week by an Orange County judge in a landmark surrogacy case pushes American family law in a new direction, possibly encouraging more infertile couples to seek such arrangements in the future. In a ruling Monday, Superior Court Judge Richard Parslow denied surrogate mother Anna Johnson parental rights to a month-old boy she carried for an infertile couple. It was the first case in which a surrogate mother had sought to become a ``third parent'' to a child to which she had no genetic link.

The decision will also likely heighten the debate over surrogacy, including state legislatures, which have been reluctant to take on the complicated and emotional issue.

``Every decision that seems to reduce the risk of going into surrogacy contracts is certainly going to encourage the business to develop,'' says Alta Charo, a reproductive-law specialist at the University of Wisconsin.

Under a surrogate contract, Mark and Crispina Calvert paid Ms. Johnson $10,000 to bring to term an embryo that was a product of their egg and sperm. During the pregnancy, Johnson said, she had become attached to the child and sued for custody.

In denying her claim, Judge Parslow said a ``three parent'' situation would be confusing to the child, inviting ``emotional and financial extortion.'' He also upheld the contract, which had been signed between the parties before hand.

If the ruling is upheld on appeal - which some experts doubt - it would have significant social and legal implications. It would likely increase the number of so-called gestational surrogacies in the United States.

Gestational surrogacy, where a couple's egg and sperm are united in a test tube and the embryo implanted in another woman, differs from traditional surrogacy, in which the birthing mother is artificially inseminated with the father's sperm. In the celebrated Mary Beth Whitehead case, or Baby M case, the traditional technique was used.

Gestational surrogacy is a newer and more medically complex technology. It is also more rarely used: There have been only 50 to 80 such births in the US. It is appealing to many couples, though, because it allows them to be the full genetic parents of the child. Thus, an upholding of the Orange County ruling could open the way for more couples - and institutions - to participate in it.

`BECAUSE of the legal uncertainty, a lot of large medical centers have been reluctant to get involved with this type of surrogacy,'' says Lori Andrews, a reproductive-law specialist at the American Bar Foundation. ``I think we will see a growing trend toward using surrogacy.''

It is that prospect that concerns critics (including religious groups, feminists, and adoption organizations) of the technique, and angers them about the ruling. They oppose all surrogacy because they contend it constitutes ``baby selling'' and uses women as ``fetal containers.'' But they also oppose gestational surrogacy because the surrogate mother has no genetic ties to the child. Critics claim couples, for financial or legal reasons, will be more inclined to hire minority women to carry the child - something surrogate brokers deny.

The ruling places emphasis on genetics in determining parenthood. Surrogate Mary Beth Whitehead was allowed visitation rights.

``The trend in the law has been to expand the number of people who have a legitimate claim for a legal relationship with the child,'' says Ms. Charo. ``This ruling creates a unique definition of motherhood in American - indeed, world - family law.''

Some experts see the judge's emphasis on the contract as breaking new ground. In the Whitehead case, the New Jersey Supreme Court ruled such a contract is invalid. Several states, in trying to regulate the practice, have outlawed the validity of contracts when disputes arise.

``If this decision is upheld, we would be one of the only states to say that surrogacy contracts are enforceable,'' says Michael Shapiro, a University of Southern California law professor.