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Surrogate mother loses case

It was the husband's sperm, the wife's egg and another woman's body. The question: Whose baby is it? On Monday, a judge gave his answer. He ruled that the baby is the couple's and that the woman who carried the child for them has no visitation rights. It is a landmark case.

The judge's decision is a sweeping affirmation of surrogate mother contracts.

"I decline to split the child emotionally between two mothers," Judge Richard Parslow ruled. He added that the genetic parents "should not have to live for the next 18 years waiting for the other shoe to drop."

The winners are the baby's genetic parents, Mark and Crispina Calvert. (She can't carry a baby because she has had a hysterectomy.)

The loser is surrogate mother Anna Johnson, who was paid to carry the Calverts' fertilized egg to term. The baby, a boy, is 5 weeks old now.

Johnson intends to appeal. But the judge has refused to continue her visitation rights during that process.

Outside the courtroom, Mark Calvert said: "The time will come when our son will be aware of (his origins) and that we wanted him so much that we went through this ordeal." Calvert added: "The only bonding Anna Johnson has is with your television cameras."

Johnson spent the morning in church rather than the courtroom. Later, at a press conference, she said she was devastated.

"To sum up, in one word, heartbroken. . . . I'm in a deep state of mourning for my son," she said.

"When the judge screws up at the trial level, it's the baby that takes the fall," said her attorney, Richard Gilbert. "And he screwed up."

In a half-hour oral decision, the judge compared Johnson's role to that of a foster mother, who feeds, nurtures and may grow attached to the baby but may be required to relinquish the child to the natural mother.

In reaching his decision, Parslow relied heavily on the proven genetic link between the Calverts and the child, and he emphasized the importance of heredity. He said he found evidence about the bonding of the baby to the gestational mother to be less clear.

"It's not an adoption ruling case. It's not a baby-selling case. It's not a Baby M case where we had natural mothers on both sides," he noted. (In the Baby M case, the surrogate mother also provided the egg.)

The judge said he believes there is nothing illegal about surrogacy contracts like the one signed between Johnson and the Calverts, in which Johnson promised to carry the baby created from the Calverts' egg and sperm in exchange for $10,000. So far, she has been paid $5,000.

"The in vitro fertilization genie is out of the bottle, and you're not going to be able to put it back," Parslow said. Such contracts are enforceable, he said, adding, "Altruism aside, there's nothing wrong with getting paid for nine months of what I understand to be a lot of misery and a lot of bad days."

The American Civil Liberties Union of Southern California denounced the decision. It had filed a brief urging the judge to rule all three adults were legitimate parents.

"We are entering into very dangerous times if we allow the creation of a breeder class of women whose parental rights can be signed away in a business deal," the group's executive director, Ramona Ripston, said in Los Angeles.

The Calverts call the baby Christopher Michael, but he could not be legally named until the legal questions surrounding his birth were resolved. The baby's guardian, William Steiner, said: "The first thing I'm going to do is put this baby's name on a birth certificate."

_ Information from the Associated Press was used in this report.