Surrogacy Custody Battle Has New Twist : Courts: Estranged wife of the baby’s father is not biologically related to the child but says she has bonded with the infant and wants to keep it. The birth mother may also seek custody.

SANTA ANA —  The emotional and legal hazards of surrogate motherhood contracts will be on display in Orange County Superior Court again today, three months after surrogate Anna M. Johnson lost her bid to keep the baby she bore for an infertile couple.

Now comes Moschetta vs. Moschetta, in which an estranged husband and wife are fighting for custody of a 7-month-old baby born to a surrogate mother but handed over to the couple at birth. Meanwhile, the surrogate, aware of the marital breakdown, has indicated that she, too, may seek custody.

Though details of the case are still sketchy, family law experts said it could set legal precedent since, like the Johnson case, it raises thorny legal and philosophical questions about the definition of a parent.

According to a lawsuit filed by Cynthia Moschetta, she and her husband, Robert, hired a surrogate mother, Elvira Jordan, who conceived a child from her own egg and Robert Moschetta’s sperm. The baby girl was born June 2, 1990. She was immediately given to the Moschettas, who named her Marissa.

Cynthia Moschetta took a 2 1/2-month maternity leave and stayed home to care for the newborn, according to her attorney, Leslee J. Newman of Orange. Although Jordan was hired through a surrogacy agency, the couple developed a friendship with her and remained close after the birth of the child, Newman said.

But in November, Robert Moschetta left his wife of 10 years and took the baby with him, Cynthia alleges in court papers.

In December, Cynthia filed for legal separation from her husband. She also filed a custody suit naming both her husband and Jordan and seeking custody of the child, to whom she is not biologically related.

“She’s very bonded with this child,” Newman said. “She took off the first 2 1/2 months from work in order to be able to be with the child and bond with the child, and now the child is gone. It’s a really sad case.”

Through their attorneys, both Moschettas declined interviews. However, Robert Moschetta’s attorney, Edith Warren of Santa Ana, said a custody dispute like that between the two Moschettas has never been litigated in California.

“I’m not sure there is a legal relationship between Cynthia Moschetta and the child,” Warren said. “There isn’t a biological relationship.”

Newman said Elvira Jordan has in the past told her that she intends to challenge the Moschettas’ custody claim and that she intends to come to the first round of the custody hearing, scheduled for today.

However, Jordan has not indicated whether she wishes to raise the child herself or find another home for the baby, nor has she filed any papers with the court. Jordan could not be reached for comment last week.

Family law experts interviewed last week said it is unclear how the courts will weigh the competing claims of biology and bonding in a post-surrogacy custody dispute.

In the Johnson case, the surrogate was not genetically related to the child she bore for an infertile couple, Mark and Crispina Calvert, but claimed she had bonded to the baby during her pregnancy. In October, Orange County Superior Court Judge Richard N. Parslow Jr. ruled that Johnson had no legal rights to the child and awarded sole custody to the Calverts. Johnson has vowed to appeal.

In other cases, including the famous Baby M case, surrogate mothers who were genetically linked to the babies have failed to gain custody. Attorney Christian R. Van Deusen, who represented the Calverts, said he successfully represented two sets of adoptive parents in Santa Rosa and in Santa Monica against surrogates who wished to regain custody after the children were about 5 and 10 months old.

However, in those cases, the adoptive couples were not divorcing, and they had gone through a “stepparent adoption proceeding,” a legal petition in which the couple asserts formal parental rights, Van Deusen said.

This legal procedure, which is a standard part of most surrogacy arrangements, is necessary because, under California law, neither the sperm-donor father nor the adoptive mother is considered to have an automatic parental right to the child, Van Deusen said.

Cynthia and Robert Moschetta approached an attorney about filing a stepparent adoption proceeding, but the marriage broke down before any papers were filed, Newman said.

That omission could prove important to the outcome of the case, said James B. Boskey, a professor at Seton Hall University Law School in Newark, N.J., and an expert on parental rights and family law.

Traditionally, Boskey said, the wife of a sperm donor would have no legal standing to ask for custody.

“She is not an adoptive parent, not a biological parent,” Boskey said. “The only way she can acquire standing to contest the issue . . . is to show that she has acquired some special relationship with the child.”

In some California cases, partners who have participated in the raising of a child have acquired standing to seek custody or visitation rights, he said. Boskey said the fact that Cynthia Moschetta asked for and received a maternity leave to care for the child might strengthen her case.

Boskey said Cynthia would probably argue that she is a “mother by estoppel”--in other words, that society treated her as the mother, “she relied on them treating her that way, and they then can’t take it back and say, ‘We didn’t mean it.’ ”

However, Boskey described surrogate Jordan’s legal claim to the child as “more of a stretch.”

“If we take the Baby M viewpoint, then it seems to me that the surrogate in this case has undoubtedly signed a surrender of rights and has waited long enough that she has lost all authority” to reclaim the child, he said.

Boskey said he has heard of similar custody clashes but no cases have made their way into the law books. The Moschetta case, he said, “is definitely of wider interest.” Whether it becomes precedent-setting, he said, depends on how the court deals with the question of what it means to be a parent.

“If the court says that one becomes a parent by raising a child, rather than by merely participating in its birth, then it would be truly precedent-setting,” Boskey said.

The Moschetta case may force the court to address precisely that issue, he said, because Cynthia Moschetta has been deeply involved in raising the child.

“They may be unwilling simply to cut her off without giving her serious consideration as a parent,” he said.