In your editorial ("Child's Interest Is Paramount," Oct. 23), you applauded the decision of Superior Court Judge Richard N. Parslow Jr. giving exclusive parental rights to the Calvert/Johnson baby to his genetic father and mother. You supported the judge's view that Anna Johnson is not the child's "real mother." Rather, she is likened to a foster parent who only temporarily cares for a child. The primary difficulty with this resolution of the Calvert/Johnson case is that there is no basis in state law to deny Johnson's parentage.
Under state law the only person who may be defined as a natural mother is the woman who gives birth. The only means by which to deny parental rights to a natural mother (who has not relinquished them according to the rules applicable to adoption) is by finding her to be unfit. Neither of these two processes occurred in this litigation.
That the judge ignored the law is only half of the weakness of the decision. It is also faulty because it is based on the view that reproduction is only genetic and not biological. The process of gestation in the womb is not akin to incubation; it is a physiological process with serious actual and potential consequences for both fetus and mother. The product that results from this process reflects both genetic and gestational factors.
Since the Baby M decision condemned the practice of surrogacy in 1988, seven states have outlawed it, rendering the contracts unenforceable. No state has acted to legalize and enforce such arrangements. Unless and until the California Legislature acts to codify this definition of motherhood, courts are obligated to acknowledge the only definition of natural mother that the law recognizes, that is, the woman who gives birth.
GAYLE BINION, Ph.D., Chair, Law and Society Program, UC Santa Barbara