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Appellate Court Rules Against O.C. Surrogate

October 09, 1991|ERIC LICHTBLAU | TIMES STAFF WRITER

SANTA ANA — A unanimous appeals court Tuesday upheld last year's precedent-setting verdict against surrogate mother Anna L. Johnson, declaring that she has no legal claim to the baby she bore for an infertile Tustin couple.

"When I heard the news, I started crying with excitement," said Crispina Calvert, the genetic mother of Christopher, who turned 1 year old last month. "I was so happy. I just thank God (the court) made the right decision."

The ruling, made by the 4th District Court of Appeal in Santa Ana, is likely to be appealed to the state Supreme Court, said Johnson's attorney, Richard C. Gilbert.

Saying that the ruling carries broad legal implications that extend to abortion and non-surrogacy issues, Gilbert warned that "it gives a green light to flesh peddlers to open up shop and sell babies."

The court, however, found that current California laws on parental rights "lead us to one inevitable destination"--that Mark and Crispina Calvert are the natural and genetic parents of the baby, and Johnson holds no rights.

"These statutes are clear," wrote Presiding Justice David G. Sills. "If a blood test shows a woman is not the natural mother of the child, the case must be decided accordingly."

The case, tackling the very definition of parenthood, was the first in the nation in which a court was asked to decide whether a surrogate mother with no genetic links to a child holds any parental rights.

Now 30, Johnson signed a surrogate contract in January, 1990, that paid her $10,000 to carry an embryo, conceived from Mark Calvert's sperm and Crispina's egg, and to give birth to the infertile couple's baby. Crispina had had a hysterectomy and could not bear children of her own.

But Johnson changed her mind and later sought to keep the child, sparking a unique lawsuit that drew international attention.

Last Oct. 22, Orange County Superior Judge Richard N. Parslow Jr. ruled against Johnson and awarded full custody to the Calverts, with no visitation for Johnson.

The appellate court ruling differed little in its reasoning, finding that state laws deeming the Calverts the natural parents are "rational and not arbitrary." And while Johnson claims that her constitutional rights have been violated, the court said: "Anna would not find herself in this position but for her own \o7 choice\f7 ."

Even while existing law appears clear in the Johnson case, the court said that there are still a range of unanswered questions surrounding the legal state of surrogacy issues. And it cited "an urgent need for legislative action" to address these questions.

The courts cannot be expected to act as "philosopher-kings" and make public policy without better legislative guidance, Sills wrote. Some proposals on the issue are already under review in Sacramento.

Harold La Flamme, a Santa Ana lawyer appointed by the Superior Court to represent the child's interests, said the decision "seems to square precisely with the position I took during the trial, so I'm pleased. . . .

"The Calverts are the child's parents. And the child has a right obviously to be raised by his parents with minimal interference."

But Gilbert, the lawyer for Johnson, while saying that he had "a lot of respect" for the appeals court, sharply questioned its decision.

"If (the appellate justices) believe their decision is already based on the law, then why do they call now for new legislation?" he asked.

Gilbert said there are many constitutional issues that could be appealed to the state or U.S. Supreme Court, but no decision on that has been made.

"Anna is going to think it over for a few days" before deciding whether to pursue an "emotionally draining" appeal that could take months or years, he said.

While Johnson declined to speak with the press, Gilbert said "she is of course extremely disappointed and very frustrated. She knows she gave birth to this baby, and they keep telling her she's not the mother."

While pregnant with Christopher, Johnson was a single mother of a 3-year-old child. Gilbert said she has since married is now early in another pregnancy.

At a press conference after the ruling, Crispina Calvert said she wishes Johnson well but hopes that Johnson "just leaves us alone. We want to get back to our normal lives . . . it's been hectic. There have been sleepless nights waiting to see what (the appellate court) would decide."

Even if Johnson decides to pursue an appeal, the Calverts' attorney, Christian R. Van Deusen of Santa Ana, said he is confident that the family can maintain full custody of their son.

While Van Deusen had thought he might get a 2-1 decision in the Calverts favor from the appeals court, the 3-0 ruling by the justices puts the couple in an especially strong position, Van Deusen said.

"A unanimous decision obviously is the more viable decision if it is taken to the Supreme Court," he said.

Mark Calvert, an insurance underwriting manager in Orange, said the family had no special plans to celebrate but will no doubt savor the legal victory.

"It's been a long year," he said, "and this is a day we've been waiting for all our lives--to have our own child and have the legal system tell us that also."

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