And Baby Makes Four

By Andrea Sachs

Her belly swollen with the child she will soon bear, Anna Johnson looks like any other expectant mother. But there is a big difference: the Garden Grove, Calif., nurse, who is seven months pregnant, has no genetic claim to the baby she is carrying. The egg and sperm came from Cris and Mark Calvert, an Orange County, Calif., couple who hired Johnson to bear their "test-tube" baby for $10,000 because Cris had a hysterectomy and is unable to carry a baby. Last week, in a ground-breaking case, Johnson sued to keep the as-yet-unborn child.

The dispute highlights the changes that surrogacy has undergone since the landmark Baby M. decision in 1987. In that case, Mary Beth Whitehead, the surrogate mother, was impregnated through artificial insemination by the husband of the couple who hired her. Though her fight to keep Baby M. was unsuccessful, Whitehead was the genetic mother. In the present case, however, the Calverts' egg and sperm were joined together in a laboratory Petri dish, producing a fertilized embryo that was implanted in Johnson's womb. The technique, known as gestational surrogacy, is on the rise; there have been nearly 80 such births worldwide in the past three years. The procedure is still less prevalent than Baby M.-style surrogacy, which has produced some 2,000 U.S. births over the same period.

But these technological advances have left vexing legal and ethical questions in their wake. Central to the Johnson-Calvert tug-of-war is the very notion of parenthood. "Just because you donate a sperm and an egg doesn't make you a parent," argues Richard Gilbert, one of Johnson's lawyers. "Anna is not just a machine, an incubator." Counters Christian Van Deusen, the Calverts' lawyer: "That child is biologically Cris and Mark's. That contract is valid."

Despite the Calverts' genetic claim, the legal outcome is uncertain. "Biology does not give us an answer in this case," says Mary Coombs of the University of Miami Law School. "Both women -- the one who bore the child and the one who provided the egg -- have some biological claim to the child." George Annas of the Boston University School of Medicine maintains that "the gestational mother is the legal mother for all purposes. Biologically she's taken the majority of the risks."

Some question the ethics of gestational surrogacy on class grounds, arguing that poor women risk being exploited by affluent couples. "We feel strongly that surrogacy should be limited to medical need and should not be for profit," says Richard Rawlins of Rush-Presbyterian- St. Luke's Medical Center in Chicago. "We might have to deal with professional women who simply want to rent a uterus." But William Handel of the Beverly Hills-based Center for Surrogate Parenting disagrees: "That is a science-fiction scenario. I've been doing this for 10 years, and I've never met a woman who wanted to do this for convenience only."

The court's decision in Johnson v. Calvert may serve as a guidepost for future surrogacy battles, but the ruling will offer no clear-cut answer to the questions raised by the technology of conception. As scientists come up with new techniques, the ethical arguments over who creates and who controls a human life are certain to multiply like cells in a Petri dish.

With reporting by Christine Gorman/New York and Sylvester Monroe/Los Angeles