In the famous Baby M case settled I 1988, the child which Mary Beth Whitehead had conceived through artificial insemination was taken from her and awarded to the father, William Stern, and his wife Elizabeth. A New Jersey court ruled on what it considered the best interest of the child: the Sterns could offer it a better home. But the court also held that surrogacy contracts are illegal, since they amounted to baby selling. Seven American states have now passed legislation outlawing such contracts.
California, however, is not one of them, and a strange custody battle began there this year. Mark and Crispina Calvert were unable to conceive a child because she has had a hysterectomy. They paid Anna Johnson, a single mother with a 3-yer-old daughter, $10,000 to bear a child for them. Ova taken from Crispina were fertilized in a lab dish with Mark’s sperm, and three of these were placed in Miss Johnson’s uterus. One of them became implanted and grew. Well before the child was born, however, its “incubator” went to court to ask for custody of the baby, child support, and emotional damages.
Miss Johnson claimed that, when she had to be hospitalized for nausea and dehydration and again for premature contractions, the Calverts showed little sympathy – and also that they were late in their payments. The Calverts denied the charges; not only did they make the payments sooner than they were obliged to, they said, but they took Anna flowers and fruit and drove her to her medical appointments.
Lawyers for Miss Johnson produced other arguments, however – that the contract recognizes the birth mother as the legal mother, and that Miss Johnson was the biological parent because she was carrying the child to term. It was also conjectured that the transplant might not even have succeeded and the fetus might be her natural child.
On September 19, two weeks ahead of schedule, a baby boy was born to Miss Johnson. At the time one of that questions could be settled: blood tests showed that the Calverts were indeed the baby’s biological parents. Anna Johnson therefore became the first mother to sue for parental rights to a child which she bore but to which she had no genetic relationships.
The issue – which would have required the wisdom of Solomon – came to Judge Richard Parslow. When the parties involved showed no sign of coming to an agreement, he threatened to send the boy to a foster home.
At that point Miss Johnson agreed to allow the Calverts interim custody, provided that she could see the baby for three hours each day. On September 28, Judge Parslow extended the temporary custody, but, in response to the court-appointed guardian for the baby, William Steiner, limited her visits to twice a week, pending a formal custody trial scheduled for October 9.
“Nothing left in me”
Steiner said that the tension on a daily basis interfered with the spontaneity of the Calverts toward the baby, and claimed that it would be in the best interest of the child for him to remain with the Calverts. Miss Johnson declared that she had never expected that the child would leave her life completely, and that she would “fight until there is nothing left in me” to gain custody. “It was my body that created him,” she said.