Surrogate mother Anna L. Johnson, who is fighting for shared custody of the child she bore for an infertile couple, says she will expand her unique lawsuit to contend that her 3-year-old daughter is the newborn boy's sister and thus has a right to spend time with him.
The lawsuit Johnson filed Aug. 13 is a landmark in its own right because she is the first surrogate mother to seek custody of a child to whom she is not related genetically. But the expanded version she plans to file on Tuesday ventures into new legal territory: siblings' rights.
Richard C. Gilbert, Johnson's lawyer, said he has revised the original lawsuit to add a new claim on behalf of Johnson's daughter, Erica. The suit asks a Superior Court judge to award Johnson custody of--or at least access to--the baby boy she bore on Sept. 19 on the grounds that Erica "deserves access to her brother," Gilbert said.
"Erica cries for her brother," Gilbert said. "She has a right to be part of her brother's life."
Robert Walmsley, an attorney for Mark and Crispina Calvert, who hired Johnson to carry their embryo, said that there are no established "siblings' rights" in the law. He dubbed Gilbert's argument "creative" but said he doubts it will succeed.
"It's just a smokescreen, something he's doing to create sympathy for his client, rather than to focus on the real legal issues," Walmsley said. "The real issue is whether Anna Johnson has any parental rights. I think it's appalling for him to yank her child (Erica) into this."
Blood tests have established beyond a 99% certainty that the Calverts are the baby's genetic parents and have ruled out Johnson as biologically related to the child. DNA tests are expected to confirm those results.
Gilbert's new theory extends his argument that Johnson has parental rights over the child. He contends that she is the child's mother because she carried and delivered him. Gilbert said he uses the same reasoning to conclude that Johnson's first child, Erica, and the new baby boy, whom they call Matthew, are related.
The Calverts argue that they are the only legal parents of the child because they donated the genetic material that formed him.
The baby, whom the Calverts call Christopher Michael, is living temporarily with the Calverts.
At a hearing Oct. 9, Superior Court Judge Richard N. Parslow Jr. is expected to decide whether the infant has two parents--the Calverts--or three, including Johnson as a mother.