Bill to Legalize Surrogacy Is Introduced : Legislation: State Sen. Diane Watson sponsored the controversial proposal in the wake of two much-publicized Orange County custody disputes.

Following two emotional surrogate-motherhood custody disputes, state Sen. Diane Watson (D-Los Angeles) has introduced a controversial bill that would legalize surrogate-parenting contracts in California.

The bill is designed to clarify the legal definition of parenthood, which has been thrown into a state of flux by new reproductive technologies that have severed sex from procreation and genetics from gestation.

If approved, the bill would make California the second state, after Arkansas, to legalize surrogacy. Eight states have laws making paid surrogacy illegal, and four have banned such contracts altogether. A bill to prohibit paid surrogacy also passed the California Assembly in 1988 but failed in the state Senate.

The proposed legislation introduced last month by Watson does not address the issue of payment. However, it would strengthen the legal position of infertile couples by treating them as the natural parents of a child born with the participation of a third party--regardless of the biological role of the three adults in producing the child.

The proposal drew immediate fire from the National Coalition Against Surrogacy and others who believe contracts to produce children degrade women and amount to baby-selling.

“If they are the natural parents, what is she, a breeding machine?” asked Sharon Huddle, a Sacramento attorney and co-founder of the anti-surrogacy group.

Huddle vowed to lobby against the Watson bill and to challenge its constitutionality if it passes.

Watson said she decided to sponsor the bill after the Anna L. Johnson case, in which Johnson carried a child created from the egg and sperm of an infertile couple and then lost a court battle for custody of the baby.

Orange County Superior Court Judge Richard N. Parslow Jr., who presided, called on the Legislature for guidance. At the moment, California has neither laws nor appeals-court decisions to indicate whether surrogacy contracts are legal and, if so, under what conditions.

“We’ve got to clear this up,” Watson said. “It’s harmful to the child, harmful to society, and the courts are begging the Legislature to take steps.”

Watson said the latest Orange County surrogacy fight, in which surrogate mother Elvira Jordan won parental rights to a child she bore for a couple who are now divorcing, further underscores the need for legislation.

Watson’s plan would require all parties to such agreements to spell out their intentions at least 30 days before attempts to conceive and would then make those intentions legally binding.

For example, if a woman agreed to carry a child created from the egg and sperm of an infertile couple, with the intention that the child be raised by the married couple, then the child would be deemed the natural child of the husband and wife.

Likewise, if a surrogate conceived with her own egg and the husband’s sperm, the husband and wife would be deemed the natural parents--even though the surrogate would be the baby’s biological mother.

“We say very explicitly that in custody disputes, the court is to be guided by the specific intent of the parties,” Watson said. In any other type of dispute, she said, courts would be instructed to rule in the best interests of the child.

The most controversial aspect of the bill is that it would not allow surrogate mothers to change their minds after giving birth. Under adoption laws, which foes of the Watson bill say would be a better model for surrogacy, a woman cannot agree to relinquish her baby until after birth.

Andrew Kimbrell, attorney for the National Coalition Against Surrogacy in Washington, said a woman cannot possibly give her informed consent to an adoption before the birth of her child. He argued that this provision would make the Watson bill unconstitutional.

“That stands all family law in the Western world on its head,” Kimbrell said. “The only way we can have legal, informed consent is for a woman to make a decision after the birth of the child. For the law to accept that kind of exploitation is unconscionable. . . .

“Our position is that you cannot have a commercial contract for the sale of a baby. You cannot have people turning over their children like they were televisions or tennis rackets.”

Watson, however, said that surrogates and others who enter into non-traditional reproductive arrangements must consider the consequences in advance and be held accountable for their decisions.

“You can’t just say ‘Oops,’ ” Watson said. “Otherwise, you have to do away with (surrogacy) entirely.”

Watson, who chairs the Senate Health and Human Services Committee, said she expects the bill to be hotly debated but feels it is an appropriate starting point.

“The idea is not to put this forward as a major change in policy,” she said. “This is the Legislature doing the bare minimum necessary to give the guidance to the courts that members of the bench have requested.”

Meanwhile, the Orange County Bar Assn. has drafted its own proposed bill for legalizing and regulating surrogacy.

This plan aims to anticipate the problems that have landed surrogacy disputes in court. Among other things, it would require that a couple and a surrogate have separate lawyers and that surrogates be 21 or older and have already given birth to a child.

It would also mandate extensive psychological counseling for the couple, the surrogate and her husband, beginning at least 30 days before a contract is signed and ending no earlier than two months after the birth of the child.

The couple would be required to have life insurance for themselves and the surrogate, to provide health insurance for the surrogate and to pay her attorneys’ fees and all medical bills. Any decision on abortion would be made by the surrogate.

In the event of a custody dispute, it would be deemed in the best interest of the child to be raised by the infertile couple unless the surrogate could show otherwise. However, if the surrogate was awarded custody, the biological father would be required to support the child and the child would be entitled to inheritance rights.

“You can’t cover every single scenario that’s ever going to arise,” said the plan’s sponsor, Newport Beach attorney Barbara Benner. Still, she said, the scheme is designed to protect all parties, “to make sure they knew what they were doing and they have to abide by what they said.”

The proposal is now under consideration by the Bar Assn. of San Francisco and will be put before the California State Bar at its annual convention in September, Benner said.

However, Benner said she supports the Watson bill and may withdraw her proposal if it passes.

Legal scholars, interest groups and bioethicists are already divided on the merits of the Watson bill.

For example, bioethicist Alexander Morgan Capron, who chaired a state task force that studied surrogacy, said he opposes both the language and the intent of the bill.

Capron, co-director of the Pacific Center of Health Policy and Ethics at USC Law School, argues that surrogacy should be regulated by the adoption laws, which prohibit exchanging money for a baby.

“If the provisions that Sen. Watson proposed go through, we will see a real market arise,” he said. “What a traditional surrogate is selling is not just the ability of her womb to produce a baby but her genetic makeup. . . .

“I’m concerned that we’ll end up commercializing and ‘commodifying’ all of our (genetic) characteristics.”

His colleague, USC law professor Michael H. Shapiro, who also sat on the task force, favors legalized surrogacy. However, Shapiro said the Watson bill is much too vague and would not have prevented many of the recent court battles.

Shapiro said he prefers the more specific approach of the Orange County Bar Assn. draft bill.

“The better thing to do is to regulate to reduce the risk and the damage of litigation,” he said. But, he said, even a comprehensive law will not eliminate painful emotional consequences or appease those who feel that surrogacy assaults the basic concept of motherhood.

“I don’t think a piece of legislation is going to make people feel better, but at least it will provide some degree of predictability, so that every time some mishap occurs, it isn’t going to wind up in court and in the newspaper headlines,” Shapiro said.

The Watson bill is scheduled for a hearing before the Senate Judiciary Committee on May 14.