Surrogate Mother’s Claim Upheld : Ruling: Court of appeal reaffirms her parental rights, gained in landmark decision, but orders lower court to decide who has primary custody of child.

An appeals court Monday reaffirmed a surrogate mother’s parental rights but ordered a lower court to once again decide who will get primary custody of a now 4-year-old girl named Marissa.

Surrogate mother Elvira Jordan and biological father Robert P. Moschetta have shared parental responsibilities since an Orange County Superior Court judge in September, 1991, granted joint custody--a landmark ruling believed to be the first of its kind.

Moschetta appealed, but Monday’s decision by the 4th District Court of Appeal in Santa Ana upheld Jordan’s claim to Marissa Jordan Moschetta, the child she bore after being artificially inseminated with Moschetta’s sperm.

“There is no question of biological parenthood to settle,” the panel of three justices unanimously concluded.

But the justices said a new hearing on custody was needed because Robert Moschetta was unfairly penalized when Judge Nancy Weiben Stock considered his “aggressive litigation” and other factors when deciding custody.

“I’m very, very happy,” said Nancy Bunn, Moschetta’s attorney, who said she hopes her client will gain sole custody during a rehearing. “It’s tough to have joint custody in a case where people have never married.”

Attorney Richard C. Gilbert, who represents Jordan, said his client was disappointed.

“Obviously, she’s happy that the court recognizes that she is the mother, but she is not happy about having to go through this all over again,” Gilbert said.

The case is markedly different from another high-profile surrogacy case decided last year by the California Supreme Court, which held that contracts in which a woman agrees to serve as a surrogate mother are valid in California despite an absence of laws governing such arrangements.

In that case, the court ruled that surrogate mother Anna Johnson had no maternal right to a child she bore for biological parents Mark and Crispina Calvert.

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In the Jordan case, the surrogate mother had agreed to bear a child for Robert and Cynthia Moschetta but changed her mind when the couple began experiencing marital problems before the baby’s birth in May, 1990. The couple later divorced, and all three adults battled for custody of the baby.

Cynthia Moschetta was stripped of any legal right to the child but has since developed a close relationship with Jordan and the little girl.

Attorney John L. Dodd, who represents the child, said he believes joint custody is in the child’s best interest.

Dodd said the appellate decision essentially applies adoption law to such surrogacy cases, specifically that a woman cannot be forced to give up her child. The opinion also calls on the state Legislature to draft laws governing surrogate contracts.

The different outcomes in the Johnson and Jordan cases can be traced at least in part to money, according to the court.

Wealthy parents who can afford the complicated in vitro fertilization procedure used in the Calvert case are likely to receive custody of the child if the surrogate changes her mind.

Couples who cannot afford such procedures or have to rely on more traditional methods of surrogacy have no assurance their intentions will be honored in a court of law.

“For them and the child, biology is destiny,” the court said. “The result is disquieting.”