SAN FRANCISCO — Setting a new legal standard for surrogate mothers, the California Supreme Court ruled Thursday that an Orange County woman who bore a baby for another couple has no maternal rights to the child.
The court also held that contracts in which a woman agrees to serve as a surrogate mother are valid in California despite the absence of a law adopted by the Legislature.
The closely watched case is the first in the nation to decide who is the natural mother of a child: the woman who provides the ovum or the woman who gives birth.
The justices concluded on a 6-1 vote that the crucial factor in determining maternity in such cases is the intent of the two women who together fulfill the biological role of mother.
"We conclude that . . . she who intended to procreate the child--that is, she who intended to bring about the birth of a child that she intended to raise as her own--is the natural mother under California law," the court ruled, in a majority opinion written by Justice Edward A. Panelli.
But in a stinging dissent, Justice Joyce L. Kennard, the only woman on the high court, argued that the primary factor in deciding custody should be what is in the best interests of the child. She also said the role of the birth mother "should not be devalued."
The decision is another legal setback for Anna M. Johnson, a nurse who carried the fetus of a childless Tustin couple for a $10,000 fee, then changed her mind and sought to keep the baby.
Johnson's attorney, Richard C. Gilbert, said that the ruling "is profound only for its stupidity" and added that he will appeal the case to the U.S. Supreme Court.
Mark and Crispina Calvert, the genetic parents who have had custody of the boy since he was born nearly three years ago, were "ecstatic" over the court's landmark decision but asked to be left in peace, said their attorney, Robert Walmsley.
"We are just an average couple and only wanted to have a child of our own," Mark Calvert said in a prepared statement. "We never wanted to make history or set a precedent."
But Walmsley, speaking to reporters in Santa Ana, said: "Today the (state) Supreme Court has rendered a decision that changes how we determine parentage. We can now determine who is a mother other than by the fact that she gave birth."
In her dissent, Kennard criticized the court majority for relying on the intent of the genetic and birth mothers to break the "tie" over who should have custody of the baby. Kennard also called on the Legislature to enact laws regulating the practice of surrogates and setting standards similar to proceedings for adoption.
"A pregnant woman intending to bring a child into the world is more than a mere container or breeding animal; she is a conscious agent of creation no less than the genetic mother, and her humanity is implicated on a deep level," Kennard wrote.
The court's ruling enters an area of law that has not kept pace with technology. Advances in science have created a new concept in childbirth--the "gestational surrogate"--that defies traditional ideas of motherhood.
Unlike the Orange County case, previous court rulings, such as the "Baby M" decision in New Jersey, have centered on surrogate mothers who provided the ovum and so had a genetic claim to motherhood.
The California decision also marks the first time a high court has enforced a surrogacy contract, said Harvard law professor Martha Field. "It's really unfortunate public policy," she said. "It puts a contract above family law, which is against everything we know, which is respect for the birth mother."
Justice Armand Arabian filed a separate opinion agreeing that Crispina Calvert should be declared the natural mother but arguing against the broad acceptance of surrogacy contracts as valid.
"I would not move beyond the available legal mechanisms into such socially and morally uncharted waters," he wrote. " . . . To date, the legislative process has failed to produce a satisfactory answer. This court should be chastened, not emboldened by that failure."
Some legal experts have questioned whether a court ruling against the surrogate mother will lead to exploitation of poor women who carry children for others and then have no say over the fate of the babies.
The court majority, however, rejected such arguments, declaring: "There has been no proof that surrogacy contracts exploit poor women to any greater degree than economic necessity in general exploits them by inducing them to accept lower-paid or otherwise undesirable employment."
In the Orange County case, the Calverts wanted to produce their own genetic offspring. A hysterectomy prevented Crispina Calvert from carrying a baby, but she was able to produce fertile eggs.
Johnson, a single mother of one child, heard of the Calverts' plight and offered to serve as a surrogate. The Calverts and Johnson agreed on a contract giving the surrogate mother $10,000 in a series of payments.
