Surrogate Mother Gets Rights of Legal Parent : Custody: Elvira Jordan will be allowed to visit her baby daughter three days a week until the judge decides on a permanent arrangement.

SANTA ANA — 

In a decision that could bolster the rights of surrogate mothers in California, an Orange County judge ruled Thursday that a surrogate mother is the legal parent of the baby girl she bore for a couple who are now divorcing.

Surrogate mother Elvira Jordan, who has seen her 10-month-old daughter only four times since the child went home from the hospital with Robert and Cynthia Moschetta, will be permitted to visit the baby three days a week until the judge decides on permanent custody arrangements.

Jordan said she would seek primary custody of her daughter, who is now living with Robert Moschetta in Lakewood. But Jordan said she would allow visitation by Cynthia Moschetta, who raised the baby for the first six months of life and now has no legal rights to the child.

“I’m overwhelmed, I’m happy,” said Jordan, a 42-year-old mother of three other children. “I want her to be all of the time with me--full custody.”

Two legal scholars said Thursday’s decision would not clear up the murky legal status of surrogate motherhood in California.

At the moment, the state does not have a single law or appellate court decision to indicate whether surrogacy contracts are enforceable, and if so, under what conditions.

However, the scholars said the ruling by Orange County Superior Court Judge Nancy Wieben Stock, who found that Jordan had not abandoned her child by leaving her in the Moschettas’ custody for nine months, could help other surrogates who decide to keep their babies.

“The surrogate managed to win,” said Harvard Law School Prof. Martha A. Field. “In a lot of cases, the couple who arranged for the adoption is so much better equipped to handle the litigation that even in cases where the surrogates ought to win, they don’t.”

The Moschetta case began April 8 as a three-way custody battle between the baby’s biological father, his estranged wife and Jordan, whom they hired for $10,000.

Jordan said she saw a television program on surrogacy, felt sorry for infertile couples, and wanted to give a child to a happy family.

Even before she met the Moschettas, she testified, she had been approached about bearing a child for a single man, and refused. She said she felt it was important that her child be raised in a two-parent home.

Jordan met the Moschettas, who appeared to be happily married, and conceived a baby through artificial insemination with her own egg and Robert Moschetta’s sperm. But the Moschettas’ marriage faltered even before the baby was born on May 28, 1990, and Jordan announced that she would not allow them to take her daughter home from the hospital.

After intense negotiations, Jordan eventually relented, on condition that the couple seek counseling to repair their marriage. She also told them she would not relinquish the child for adoption for one year, saying “time would tell” whether the marriage would succeed.

On Sept. 17, when the baby was 4 months old, Robert Moschetta met Jordan at a Pizza Hut in Cudahy and presented her with the last $5,000 payment and a document saying she would give up all rights to the child. Robert Moschetta testified that he had told Jordan what the document said and that she signed it freely in return for payment.

Jordan, who has a seventh-grade education and did not have a lawyer at the time, testified that she signed the document without reading it because she thought it was a receipt for the payment. Had she known what it said, she testified, she never would have signed it.

Six weeks later, Robert, 35, left Cynthia, 51, and took the baby with him.

Within two months, all three would-be parents were in court seeking custody of the child, whom the Moschettas named Marissa but whom Jordan calls Melissa.

Last week, Judge Stock ruled that Cynthia Moschetta had no legal rights to the baby because she was not the biological mother and had not adopted the child. That narrowed the case to a two-way custody fight between Robert Moschetta and Jordan.

The four-day trial became increasingly emotional, with Jordan accusing Robert Moschetta of attempting to trick her into surrendering the child, and Moschetta saying that Jordan had sold her baby.

In an unusual development, lawyers for all sides agreed in closing arguments that the surrogacy contract itself was unenforceable.

Nevertheless, Robert Moschetta asked the court to terminate Jordan’s parental rights on the grounds that she had effectively abandoned the baby by leaving her with the Moschettas for nine months and visiting her only once before the court case began.

“The intent to be a mother was never there,” said Robert Moschetta’s lawyer, Edie W. Warren.

In her ruling Thursday, Stock found that the key question was whether Jordan had relinquished her parental rights or abandoned the child.

Stock ruled that Jordan had explicitly refused to relinquish the child for adoption for a year because she was concerned about the stability of the Moschettas’ marriage. The judge noted that Jordan had expressed consistent interest and concern in the baby’s welfare and had behaved responsibly by attempting to monitor the state of the Moschettas’ marriage.

The baby’s court-appointed lawyer, Harold F. La Flamme, said he suspected that Jordan did know what she was signing. But the relinquishment was invalid in any event because it had not been signed in the presence of a social worker as state law requires.

“I don’t care if she was Winston Churchill, Learned Hand or Sandra Day O’Connor sitting in the Pizza Hut that night. There was not a social worker there so it was not a legal relinquishment,” La Flamme said.

The judge agreed, saying that the Legislature had specifically required that a disinterested third party explain to the birth mother her legal rights so that she would be “protected from improper outside influence.” Stock ruled the document invalid.

“The transaction (in the Pizza Hut) on Sept. 17 was simply exchanging money for consent,” she said. California law prohibits “baby selling,” which includes the payment of money in return for consent to adoption.

Stock also noted that none of the attorneys had asked that the surrogacy contract be enforced. She said the case, while billed as a surrogacy dispute, was actually a simple custody fight between the biological father and the biological mother.

“To literally enforce the terms of the surrogacy contract, the court might have to acknowledge an irreversible pre-conception relinquishment of parental rights without consideration of the best interests of the child,” Stock said.

To do so, Stock said, would be “contrary to public policy.”

“That’s a strong statement,” said James B. Boskey, an expert on parental rights and family law at Seton Hall University Law School in Newark, N.J. “If that statement holds up, it means that a surrogacy contract is essentially at risk.”

Harvard’s Field agreed that the ruling “does contribute” to the argument “that surrogacy contracts are unenforceable” in California.

“It would be far more significant if (Jordan) ends up winning . . . custody rather than just visitation rights, which was what Mary Beth Whitehead got” in New Jersey’s famous Baby M case, Field said.

Stock’s decision in the Moschetta case, however, is at odds with the outcome of the Anna M. Johnson surrogacy dispute. In that case, Orange County Superior Court Judge Richard N. Parslow Jr. ruled last fall that the surrogacy contract Johnson signed was enforceable, and gave custody of the baby to the couple who hired her, Mark and Crispina Calvert. That case is now on appeal.

The two cases are legally quite distinct, however, because Jordan is the undisputed biological mother of the Moschetta baby. Johnson was a “gestational surrogate” who carried a baby conceived through in-vitro fertilization with the Calverts’ egg and sperm, and much of that trial revolved around the legal definition of motherhood.

La Flamme, who also represented the baby in the Johnson case, said the legal issues in the Moschetta trial were entirely different.

“This is not a surrogacy case,” La Flamme said. “It is an adoption, a paternity and a custody case. The surrogacy element is not relevant.”

Seton Hall Prof. Boskey agreed, but said the decision would nonetheless send a signal to other couples considering hiring surrogates.

“There are two conclusions they should draw,” Boskey said. “One, anybody entering into a surrogacy contract had better be Caesar’s wife--absolutely ethical, absolutely honest and absolutely straightforward.

“And two, deceit is going to affect the validity of the contract.”

La Flamme, the baby’s attorney, has not yet taken a position on who should have custody of the baby, and whether Cynthia Moschetta should be allowed continuing visitation.

But he did tell the judge that if Jordan’s parental rights were terminated, the baby would not have a mother.

“I’m stuck trying to insert a 50-year-old brain into the head of a 10-month-old client and decide what she would choose,” La Flamme said.

“She ought to have a mother,” he concluded. “The alternative is too risky.”

At La Flamme’s suggestion, the court agreed to appoint psychologists to evaluate the parents and come up with a plan to gradually reunify Jordan with her daughter. Separate hearings on custody and visitation are scheduled to begin June 17.

THE COMBATANTS IN SURROGATE CASE

’ I’m overwhelmed, I’m happy. I want her to be all of the time with me--full custody. ‘ Elvira Jordan, 42, surrogate and genetic mother, sought custody of the child she bore for $10,000 to Robert and Cynthia Moschetta. Jordan let the Moschettas take the baby home after intense negotiations. Jordan’s attorney, Jeri R. McKeand, said that Jordan, a native Spanish speaker, never read the document by which she relinquished all parental rights and would never have signed it had she known what it said.

‘I just want to go home and be with my baby. I don’t want to comment right now. ‘ Robert Moschetta, 35, husband and genetic father, hired an attorney who drafted a document by which Jordan would relinquish her parental rights to Marissa and give her custody to Robert alone; he was unwilling to allow Cynthia to adopt Marissa while he was unsure whether their marriage would survive. On November 30, 1990, he told Cynthia that he was moving out of their Santa Ana home and taking the baby with him. He had temporary custody of Marissa.

‘Just because I don’t have a blood relationship, people don’t think about me having feelings for her or her having feelings for me. ‘ Cynthia Moschetta, 51, estranged wife, has no biological link to the baby, but she planned for the birth and helped pay the surrogate. After Marissa was born, she took a 2 1/2-month maternity leave and helped raise the baby for six months. She said Robert had offered her money to leave and abandon her claim to the child. The judge ruled April 8 that Cynthia had no legal right to the child.