On the face of it, surrogate motherhood seems a simple, civilized arrangement: Mary Beth Whitehead enters into a contract with Willian and Elizabeth Stern, agreeing to be artificially inseminated with Stern`s sperm and give the baby up to him and his wife at birth. William Stern would be named the child`s father on the birth certificate. Elizabeth Stern would adopt the baby. Mary Beth Whitehead would receive $10,000 plus expenses.
But in this instance surrogacy was not so simple. When the baby, a girl, was born, Whitehead decided she could not give her up and refused payment. She named the baby Sara; the Sterns named her Melissa. The Superior Court of New Jersey will decide the custody of the child it calls Baby M. The court also, as this is being written, is in the process of deciding the legality and enforceability of the surrogate contract entered into by the Sterns and Whitehead.
Whatever the court`s decision, its immediate effect will be only on surrogacy cases in New Jersey. It won`t put an end to surrogate motherhood; it won`t prevent similar cases from occurring in other states; and it won`t end the vehement debate the case has stirred among feminists, lawyers, theologians and the general public (especially women).
Today 15 percent of all married couples are infertile. Infertility is particularly painful for women, a loss of not just the child but of the experience of pregnancy as well.
Surrogacy offers a faster solution to female infertility than does traditional adoption; in some cases it provides the infertile woman a vicarious experience of pregnancy; the couple have a say in who the mother is; and there is a genetic link with the father. That link is both gratifying and reassuring to these couples.
For some feminists, however, the genetic link with the father but not the mother seems to emphasize the father-child relationship, the man`s hunger for genetic continuity over the woman`s hunger for a baby. Such feminists, however, offer no alternative to women who cannot conceive or carry a child other than adoption, in which no genetic link is possible.
Ironically, new reproductive technologies such as surrogacy have developed in response to profound social changes promoted by feminists
–reproductive choice, contraceptives, postponing childbearing for work and education.
In the debate over surrogacy, the Constitution`s prohibition of slavery has been put forth as a reason to ban the practice. Lori B. Andrews, an American Bar Foundation research attorney specializing in medical issues and the author of ”New Conceptions: A Consumer`s Guide the Newest Infertility Treatments” (Ballantine, $3.95), disagrees. ”It doesn`t fall within slavery,” she says. ”Once you have the child, you are not free to do with it what you want, as you were with a slave or a material good. You are subject to laws on child abuse and must treat the child as any parent does.”
Another view is that the right to procreate by contracting with a surrogate mother is protected by the Constitution`s guarantees of a right to privacy. ”I don`t think there are highter constitutional values than the right to privacy to make procreative decisions,” says Andrews.
”On the whole, we have made a societal, legal choice to allocate these decisions to individuals and families,” says Janet Gallagher, attorney and former director of the Civil Liberties and Public Policy program at Hampshire College. ”They are private decisions.”
Lawyers and ethicists cite numerous cases where the Supreme Court has indicated strong support for procreative liberty, primarily in decisions covering abortion and birth control. However, the right to procreate has not received the explicit and fierce protection that the right not to procreate has. The Supreme Court has refused, so far, to hear any cases involving surrogate motherhood, so the issue is at the discretion of lower court judges. Decisions in several states have upheld the legality of surrogate contracts. In the Stern-Whitehead case, however, a court is being asked for the first time to enforce a surrogate contract. Many legal experts believe the judge may sidestep the issue and declare the contract legal but unenforceable. Such an action arises from a strong legal tradition of not enforcing
”specific performance.” Andrews explains, ”When an opera singer reneges on her contract, we don`t bring her bodily onto the stage and force her to sing. Instead she might have to pay damages. But there is a sense in the law that you have control over your own body. So clearly they would not force a woman to continue a pregnancy as a surrogate if she wanted to abort.”
Andrews, however, believes that once the baby is born the surrogate`s agreement to relinquish the child is enforceable because there is no further action required on her part. ”There has been a real mixup in terms of what is specific performance and what isn`t,” she says.
The risk that the surrogate might be psychologically harmed by giving up the child is another area of possible legal concern, though there is a dearth of research in this area. In other cases in which a woman gives up a child for adoption, the decision is often forced upon her by parents or the biological father of the child. With surrogacy, it`s a personal decision. The surrogate volunteers and convinces others she should do it; hence psychological problems might be less likely.
Legislation proposed in several states would prohibit payment of fees other than costs on the theory that payment may exploit or coerce the surrogate.
Not paying surrogates, however, could lead to an even greater risk of coercion. ”If you can`t pay a surrogate, who`s going to do it?” asks Andrews. ”It`s going to be a sister or a friend you have leaned very heavily on.” She believes the proposed bans on payment are really just a way to put an end to surrogacy. Also, there are less restrictive means available to prevent coercion, such as mechanisms to insure voluntary, informed consent and to provide independent counsel for the surrogate.
Most surrogates cite payment as an important factor in their decision. Others say they enjoy being pregnant. Many surrogate mothers have had a relationship with someone who is infertile. One study found that about one third of surrogate mothers use the process to help themselves psychologically. These are women who in the past may have had abortions or lost a child in miscarriage.
Attorney Gallagher is extremely wary of seeking the solution to economic coercion in protective legislation. ”Women`s unequal treatment before the law has often–much more often than not–been justified by claims that it`s necessary to protect women and their special function as childbearers,” she notes. ”But defining and protecting women in terms of reproductive capacity has been the basis for women`s inequality and lack of economic and political power.”
Most professionals involved with surrogacy would like to see legislation creating standards to insure voluntary, informed consent, to establish paternity and maternity and to require medical screening of donors and surrogates. In addition, they call for requirements for record-keeping so that the outcome and effects of surrogacy can be reliably documented and that children born of surrogates will have knowledge of their genetic inheritance. The harrowing and affecting details of Stern-Whitehead are being used by many as an argument for banning surrogacy. But Andrews notes that, ”It`s questionable whether one bad outcome in 500 cases is sufficient to ban the practice. When you`re dealing with relationships, they`re not always going to turn out the way you anticipate. We still allow marriage even though half of those go wrong and end in divorce.”
If state laws were enacting governing such contracts, cases such as Stern-Whitehead would not exist, according to Andrews. Making the contracts legally binding would discourage women who later might have second thoughts from entering the process in the first place because there would be no opportunity for a change of heart.
Others advocate legislation that recognizes the validity of surrogacy but gives the surrogate mother a period of time after the birth to change her mind. ”It`s okay to allow the woman to change her mind,” says Gallagher.
”She`s in a different relationship to the child than the man. We recognize this legally in allowing women to unilaterally decide for abortion.”
Basically, the argument goes, the mother feels more strongly than the father about either keeping or aborting the child.
Still others believe surrogacy should be handled informally, without legal sanction and without contracts, as when a relative agrees to perform as the surrogate. In other words, surrogacy would go underground.
The Stern-Whitehead case demonstrates the need for some public regulation of these private arrangements. However, legislators have been reluctant to deal wih surrogacy. For one thing, the powerful emotions it invokes make it too hot a political issue for most politicians. In addition, many states already have adoption and artificial insemination by donor (AID) laws on the books that seem in conflict wih surrogacy. AID laws in 15 states, including Illinois, provide that a man who donates sperm to a woman who is not his wife is not the legal father of the child.
In all states, it is illegal to sell a child, and surrogacy could be construed as such. Payment of a surrogate mother may fall under laws in 24 states that ban fees in adoptions to prevent ”baby-selling.” The baby-selling laws in New Jersey are being used to defend Whitehead`s position. All of these laws, however, were enacted before surrogacy was contemplated. Most lawyers believe these laws are vulnerable to constitutional attack and will eventually be overturned.
So the debate will continue as, state-by-state, legislation and judicial decisions further define the prospects of surrogacy. Despite mixed emotions, the legal, ethical and societal implicatons of surrogacy will have to be confronted by us all.
