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Ruling Reaffirms Surrogate Mother's Rights in O.C. Case : Courts: Biological father fails to gain sole custody of girl. Justices urge legislative oversight on such contracts.

October 14, 1994|From Staff and Wire Reports

SAN FRANCISCO — The state Supreme Court Thursday reaffirmed a surrogate mother's parental rights by rejecting an appeal by a biological father seeking sole custody of a now 4-year-old girl named Marissa.

Surrogate mother Elvira Jordan and biological father Robert P. Moschetta have shared parental responsibilities since an Orange County Superior Court judge in September, 1991, granted joint custody.

But Moschetta appealed, saying his contract with Jordan gave custody to him and his now ex-wife. An appellate court disagreed, and on Thursday so did the Supreme Court.

The court differentiated this case from another last year, in which the woman is implanted with another couple's fertilized egg. Because either of the two women could be considered the child's natural mother, the court said then, the surrogacy contract can determine legal parenthood.

But in the Orange County case, the court held Thursday, only one woman has a biological connection to the child, making Moschetta's contract invalid.

The appellate justices urged state legislators to regulate surrogacy contracts, a plea that has been made by other courts. But for now, the ruling is binding on all trial courts statewide, making the most common type of surrogacy agreement unenforceable.

"Couples who cannot afford in-vitro fertilization and embryo implantation, or who resort to traditional surrogacy because the female does not have eggs suitable for in-vitro fertilization, have no assurance their intentions will be honored in a court of law. . . . Once again the need for legislative guidance regarding the difficult problems arising from surrogacy arrangements is apparent," said Presiding Justice David Sills in the 3-0 appellate ruling.

Richard C. Gilbert, who represented Jordan in the Moschetta case and surrogate mother Anna Johnson in last year's case, was indignant at the appeals court's suggestion that the Legislature regulate surrogacy contracts.

"In California our appellate courts believe that money can buy anything," he said. "They openly call upon the state Legislature to write new laws so that children can be sold pursuant to contracts."

Gilbert said he would have appealed the unfavorable portion of the ruling, which required reconsideration of Jordan's joint-custody status, "if I believed that we had a (state) Supreme Court that knew right from wrong."

Moschetta and his then-wife, Cynthia, contacted Jordan through a surrogacy broker in 1989 and agreed to pay her $10,000 to bear a child from Moschetta's sperm and Jordan's egg through artificial insemination. She promised to let Robert Moschetta obtain sole custody and to help Cynthia Moschetta adopt the child.

A day before giving birth to a girl in May, 1990, Jordan learned that Robert Moschetta had asked his wife for a divorce. Jordan let the couple take the child home after they said they would stay together, but Robert Moschetta left the family home seven months later, taking the girl with him, the court said.

All three sought custody rights. Cynthia Moschetta later dropped her claim, but it was taken up by her ex-husband, who asserted that she was the child's legal mother and that Jordan had no parental status.

Orange County Superior Court Judge Nancy Wieben Stock found that Robert Moschetta and Jordan were the child's legal parents, and awarded them joint custody, with Jordan caring for the child on weekdays and Robert Moschetta evenings and weekends. That arrangement has been followed during appeal of the case, lawyers said.

The 4th District Court of Appeal ruled June 10 that Jordan was the mother and that her promise to relinquish the child for adoption was not binding.

Last year's Supreme Court ruling used the surrogacy contract to determine legal parenthood only because the child had two "natural" mothers, the woman who bore her and the woman who contributed her egg and her genes, said Sills.

By contrast, he said, only Jordan, the child's birth and genetic mother, would be recognized as her legal mother under California law. He also said the surrogacy contract could not serve as an adoption agreement because state law requires consent by both parents in a social worker's presence.

"The result is disquieting," Sills said, noting that the child never would have been born if the Moschettas had known Jordan would change her mind.

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