Proposed Legislation Inspired by O.C. Case Tough on Surrogates : Law: Bill would deny them all rights to child in regulating commercial surrogacy. It goes far beyond Thursday’s ruling.

A proposed California law on surrogacy, drafted in response to the legal battle between Anna Johnson and the Calverts, would strip a surrogate mother of all rights to the newborn in favor of the couple who intend to raise the child.

If enacted, the bill authored by state Sen. Diane H. Watson (D-Los Angeles) would be the state’s first successful effort to regulate commercial surrogacy and would also clarify the legal definition of parenthood. It would be more far-reaching than the precedent set by the state Supreme Court decision Thursday.

“If this law had been in effect, we would not have the Anna Johnson-Calverts case in court,” Watson said recently. “With this law, there would be no question, both sides would know exactly what they were getting involved in.”

Watson’s bill would require surrogates to be at least 21, to have borne at least one child and to receive psychological counseling. Custody of the newborn would be granted to the intended parents, with adoption necessary in some cases. Disputes would be resolved based on the child’s best interest.

Gov. Pete Wilson vetoed an earlier version last fall, citing in part the lack of disputed cases that would warrant new legislation. If approved, the bill would make California one of at least 13 states to attempt to regulate surrogacy arrangements.

Four states--Arizona, Michigan, Utah and Washington--have banned surrogacy, making it a crime, according to a recent survey by the National Conference of State Legislatures. At least five other states, including New York, allow surrogacy but say such contracts cannot be legally enforced. New York additionally bans paying surrogates.

A handful of other states, including Nevada, Arkansas and Florida, have laws considered favorable to commercial surrogacy contracts.

Many blame a lack of clear state law governing surrogacy for the painful litigation between the Santa Ana surrogate and the infertile Tustin couple who wanted a child of their own.

“Politicians have been afraid to touch this thing,” said Andrew Kimbrell, counsel for the Washington-based National Coalition Against Surrogacy and author of the new book, “The Human Body Shop.” The book covers the buying and selling of human body parts and also discusses the Calvert-Johnson dispute.

One of the most well-known surrogate disputes, the so-called “Baby M” case, ended with a New Jersey Supreme Court ruling in 1988, after surrogate Mary Beth Whitehead-Gould refused to give up the child she bore for an infertile couple. In that case, the court found such surrogacy contracts illegal and granted visitation to the surrogate mother.

A ruling in another Orange County surrogacy case is expected in upcoming months. In that case, an Orange County Superior Court judge granted joint custody two years ago to surrogate Elvira Jordan of Los Angeles County, who agreed to be artificially inseminated and bear a child for Robert and Cynthia Moschetta of Santa Ana in exchange for $10,000.

Jordan fought for custody when the Moschettas announced they planned to divorce just days before the baby was born. Cynthia Moschetta was not granted visitation rights of baby Marissa, who was born in May, 1990.

Robert Moschetta has appealed the lower court’s joint custody ruling to the 4th District Court of Appeal, said Richard Gilbert, attorney for Jordan and Anna Johnson.

In October, 1991, when the 4th District Court of Appeal in Santa Ana issued its ruling upholding a lower court decision for the Calverts, the court also urged the state Legislature to resolve legal issues involved “so that both parents and children can face the future with certainty over their legal status.”

California judges must currently rely on family law and adoption law to help guide their decisions in surrogacy cases, but critics say such laws are outdated by technology that could allow four people--an egg donor, a surrogate mother, a sperm donor and his wife--to create a child.

“We are in need of clarity on this issue, to protect the rights of all the parties involved,” said Diane Yu, general counsel for the State Bar of California.

In a lone dissent to Thursday’s ruling, state Supreme Court Justice Joyce L. Kennard praised model legislation drafted by a national commission for protecting the rights of both women who provide genetic material for surrogate pregnancies and women who carry the babies to term.

The proposed legislation, written by the National Conference of Commissioners on Uniform State Laws, would require court approval for surrogacy agreements, and mandate legal and psychological counseling for all parties.

“There would never be a question as to who has the legal responsibility for a child born of a gestational surrogacy arrangement,” Kennard wrote. “If the couple who initiated the surrogacy had complied with . . . the legislation, they would be the child’s legal parents. If they had not, the rights and responsibilities of parenthood would go to the woman who gave birth to the child.”

Watson’s proposed surrogacy legislation was formulated with the help of Santa Ana attorney Robert R. Walmsley, who represents the Calverts in their custody fight.

State Senate Judiciary Committee hearings are expected to begin in the next few weeks, said John Miller, Watson’s chief of staff. Watson said the revised bill has been refined to address concerns that it was too complicated.

“The courts are really crying out for something like this,” Watson said. “We need to make sure that everyone’s rights are protected.”