Bill Passed to Bar Surrogate Parent Pacts : Assembly Approves Measure Outlawing ‘Babies for Money’

Agreeing that “babies should not be exchanged for money,” the state Assembly on Monday passed legislation to outlaw surrogate parenting contracts under which women are paid to bear children for infertile couples.

The measure, keyed to the high-profile custody battle over New Jersey’s “Baby M,” was sent to the Senate on a bipartisan 43-24 vote after a spirited debate that focused on the “immorality of selling babies” versus emotional pleas on behalf of childless parents who without surrogation could not conceive a child.

“Do we have so little regard for the sanctity of human life that we would allow a price to be put on it?” asked Assemblywoman Sunny Mojonnier (R-Encinitas), the bill’s author, as the debate reached an emotional climax. “I feel very strongly babies should not be exchanged for money.”

‘Misery and Hopelessness’

Assemblyman Richard E. Floyd (D-Hawthorne), a strong opponent of the bill, countered that passage of the measure “will create more misery and hopelessness in the lives of people who want children” but can’t have them.

Just last month, the bill was rejected by the Assembly Judiciary Committee but was brought back to life, reportedly with the help of Speaker Willie Brown (D-San Francisco), amid the continuing rebellion within the Assembly’s Democratic ranks.

At the same time, Assemblyman Gerald Eaves of Rialto, one of five dissident Democrats who have been challenging Brown’s authority, coaxed the Assembly on Monday into amending another bill with a provision extending the death penalty to murderers of witnesses in juvenile cases.

It was the second effort this year by the dissident “Gang of Five” to expand the use of the death penalty. Supporters say if passed in its amended form, the measure will help crack down on gang violence.

Morals, Religion

In the case of the surrogation bill, the bipartisan support seemed to be more reflective of the moral and religious convictions of lawmakers than a response to the politics of the dissidents, who contend that controversial bills are pigeonholed in committees dominated by liberal Democrats.

Mojonnier, a middle-of-the-road Republican, is widely viewed as an ally of the embattled Speaker and had told her GOP colleagues that she would not join with the dissidents to oust Brown. Although she insists that the events were unrelated, Mojonnier has said that Brown was instrumental in resurrecting her bill from the Judiciary Committee.

The measure was placed on a fast track to the Assembly floor, where it ultimately was supported by Brown and a number of liberal Democrats as well as conservative Republicans. In fact, with little notice, it was pushed through two committees last month in a single day.

The bill would invalidate any contract in which a woman agrees, before she becomes pregnant, to accept payment to bear a child for another couple. However, it would not prevent couples from later obtaining the child through normal private or public adoption procedures.

The measure also would make it a felony for anyone to assist in arranging a surrogate contract and a misdemeanor for those who advertise for women willing to participate in the arrangement.

Mojonnier, who noted that she was adopted by a childless couple, was inspired partly by the case of Baby M, in which a New Jersey couple, William and Elizabeth Stern, fought in court with Mary Beth Whitehead-Gould for custody of the baby girl that she bore for them. Whitehead-Gould was paid $10,000.

Constitution Invoked

In February, the New Jersey Supreme Court awarded custody of “Baby M” to her natural father and declared that paid surrogate motherhood arrangements are unconstitutional. The court ruled that payment of money to a surrogate mother is “illegal, perhaps criminal and potentially degrading to women.”

The Assembly acted as the Baby M case was being dramatized in a two-part television miniseries that began Sunday night. And some opponents of the bill accused Mojonnier of simply trying to cash in on the publicity.

During the floor debate, Assemblyman Byron Sher (D-Palo Alto) said the bill took an “ostrich approach,” contending that surrogate contracts will continue to be made regardless of the bill’s outcome. “There are thousands of people in the state with infertility problems and they are desperate to have children,” Sher said.

Vulnerable Couples

Assemblyman Steve Peace (D-Chula Vista) countered that these childless couples are “extraordinarily vulnerable” and are easily exploited by unscrupulous brokers.

Surrogation legislation has been introduced in 26 states and the District of Columbia. In addition, laws in effect in Louisiana and Nebraska ban surrogation contracts, while an Arkansas law recognizes them as valid.

In California, three cases involving surrogate contracts are pending in state courts.

The bill’s prospects in the Senate are uncertain. Two recent measures that would have legally recognized and regulated surrogate contracts were rejected in the upper house. But a third measure that would have imposed misdemeanor penalties on the brokering of such contracts also died in the Senate Judiciary Committee earlier this year.

After Monday’s vote, Mojonnier predicted that her bill will win Senate approval. “The time has come to deal with this issue,” she said.

1985 Ruling Reversed

The death penalty bill amended on the Assembly floor Monday reverses a 1985 state Supreme Court ruling, which held that murdering a witness to prevent testimony in a juvenile court proceeding did not, of itself, constitute a special circumstance justifying imposition of the death penalty. The opinion, written by former California Chief Justice Rose Elizabeth Bird, sparked several unsuccessful attempts to change the law in bills that died in an Assembly committee.

With the rebellion by the five dissident Democrats who have been pushing tough law and order bills, it was evident Monday that with expected solid Republican support, there would be enough votes for the measure’s passage. Once that became clear, the amendment sailed through on a lopsided vote of 56-4.

The measure could come up for a vote on the Assembly floor as early as Friday.

GOP Proposals

Meanwhile, Assembly Minority Leader Pat Nolan of Glendale called a press conference to outline GOP proposals to curb Brown’s powers. The proposals, which would transfer much of the Speaker’s authority to a new Rules Committee, need two-thirds vote for passage.

The press conference ended abruptly when a reporter asked Nolan what the Republicans think about the $800 million in tax increases contained in GOP Gov. George Deukmejian’s budget deficit correction proposal.

As soon as the words “tax increase” were uttered, many of the 20 Republicans present abruptly headed for the exits, leaving an embarrassed Nolan behind to field the politically touchy question--which he refused to do.