Whose Child Is This?

Barring a slide into a totalitarian Brave New World, for the foreseeable future most babies are likely to continue to be created as a result of their parents' sexual union in the old-fashioned way. Even with increasing rates of infertility, only a fraction of births depend on the use of the reproductive capabilities or germinal material of third parties. Nonetheless, the ways that medicine treats infertility--and the ways that society responds to the new reproductive methods--can be significant, symbolically and otherwise. Of all the new methods, the one we rather oddly call "surrogate motherhood" has metaphorical potential all out of proportion to the numbers involved. If surrogate motherhood has a future, it lies in "gestational surrogacy," in which the contracting couple's egg and sperm are united in vitro and the resulting embryo is implanted in the uterus of the woman they have hired to bring it to term. As the lawyers who promote this field have found, absent a dominant genetic disease or other major medical reason, prospective parents who turn to surrogacy to overcome infertility would rather have a child with both their genes than one who is only related genetically to the father. A decision by a California appellate court on 8 October makes gestational surrogacy legally as well as genetically attractive. [1] Although the Fourth Appellate District Court of Appeal scrupulously refrained from mentioning the parties' real names, the case was widely reported, before, during, and after the trial in the Superior Court of Orange County last year. Anna Johnson, already the mother of a now four-year-old daughter, became pregnant in January 1990 when a zygote created through gametes from Mark and Crispina Calvert was transferred to her uterus. This transfer occurred under a contract between Ms. Johnson and the Calverts, in which she agreed to relinquish all parental rights upon the baby's birth, and they agreed to pay her $10,000 and to purchase an insurance policy on her life while she was pregnant. During the pregnancy their relationship soured, however. Ms. Johnson felt the Calverts had not obtained her insurance in a timely fashion or been attentive to her welfare when she had premature labor. When she needed money for housing, she wrote them a letter (quoted in full by the court) basically threatening not to turn over the baby if they did not pay her fee early. By the time the child was born, both Ms. Johnson and the calverts had brought suit, each side claiming parental rights. Despite its surface resemblance to the Baby M. case in New Jersey, the California case differed in a way the judges found decisive: the child was genetically related to the Calverts and not to Anna Johnson. This factor made Anna J. v. Mark C. a case of first impression. Regrettably, the California Court of Appeal did not produce a decision of landmark--much less Solomonic--quality. Faced with the novel facts of the case, the court of appeal echoed a plea often heard from judges in such circumstances: the legislature should act. "Our system of government does not make the courts de facto 'philosopher-kings,'" declared Presiding Judge David Sills with a nod to Plato's Republic. Urgent pleas for legislative guidance often seen as disingenuous as they are hearfelt, since they are usually uttered in the same breath in which the judges announce legal rules on the very matters they claim are for legislatures to resolve. In the present case, however, the court seemingly avoided this contradiction by stating that the area needing legislative attention was the legal framework for surrogate mother contracts, whereas Anna Johnson was not attempting to enforce the contract. Instead, the court concluded that the case was resolved by the state's existing law, specifically the Uniform Parentage Act. The heart of the act specifies how a child's relationship to his or her father may be established. …