The decision by a New Jersey judge last week terminating the parental rights of the natural mother of Baby M may settle the question of who rears the 1-year-old, but it leaves unsettled many of the thorny issues raised by surrogate motherhood.
The practice of paying a woman to accept implanted sperm and bear a child for a couple unable to produce children of their own distorts the definition of some of the most fundamental and cherished concepts of traditional society. Until now, procreation and family were sacred and easily understood. The decision by Judge Harvey R. Sorkow, which ended the parental rights of biological mother Mary Beth Whitehead, saw the law for the first time and society grapple with the consequences of technology`s ability to fulfill mankind`s most primal instincts.
”The desire to reproduce bloodlines to connect future generations through one`s genes continues to exert a powerful and pervasive influence,”
Sorkow wrote in his 121-page opinion. ”Being unable to bear a child excludes women and men from a range of human activities associated with child bearing and rearing.”
And so, as incidences of infertility among married couples tripled over the last 20 years and chances of adoption dwindled with some 2 million couples contending for 58,000 adoptable children, surrogacy appeared to be an attractive remedy.
Now troubling questions are emerging:
— Does payment to a woman to bear a child constitute baby-buying, which has been outlawed in every state since the turn of the century?
— Does a contract made before conception nullify a woman`s biological stake in her child?
— Does commercial surrogacy create an exploited class of baby breeders for those who can afford typically to pay a biological mother $10,000 and an additional $20,000 in medical costs and baby-broker fees?
— Assuming that Sorkow`s decision means that surrogacy is here to stay, who may take advantage of it: a working woman, single or married, who doesn`t want to interrupt her carrer for preganancy or a homosexual couple?
— What is the psychological and emotional impact on those involved, including the other children of the biological mother who see her sell one of their siblings? Brokers usually require surrogate mothers to have given birth to other children.
Sorkow`s decision answered some of the legal questions for the moment, although his ruling applies only in Bergen County, New Jersey. It also is likely to be appealed, and it is unclear how higher courts may treat his reasoning.
Sorkow ruled that surrogacy is not the same as baby-buying, and that because reproduction is a fundamental, constitutionally protected right, the means of reproduction similarly must be protected.
No other court has ruled that way.
Sorkow ruled also that the contract, under which Whitehead was to receive $10,000 from the sperm donor, William Stern, and his wife, Elizabeth, defeated Whitehead`s biological interest in rearing her child or ever visiting her.
He based the substance of his ruling, however, on criteria used every day by family-court judges deciding simple custody cases. Sorkow said it was in the ”best interests of the child” to be reared by the Sterns rather than by the Whiteheads.
Because his ruling of custody hinged on that point, there is no guarantee that another judge following Sorkow`s decision will not give the child to the surrogate mother. That determination could be made if the surrogate mother is deemed by her educational and economic background to be a better parent than the couple who paid her to carry the child.
He said all other concerns raised by lawyers in the case constitute
”commentary.” This means that his resolution of those concerns is not legally binding. Nonetheless, his decision is likely to have a big impact in setting a course for other courts and legislatures to follow.
William Stern is a 41-year-old biochemist who is the last surviving member of his family, most of whom were killed in Nazi concentration camps. Elizabeth Stern, also 41, is a pediatrician who put off child-rearing to get her medical degree. She has a mild case of multiple sclerosis, a degenerative nerve disease, which medical experts agreed would make pregnancy risky.
Mary Beth Whitehead, 29, dropped out of high school, married at 16 and had two children before she turned 19. Richard Whitehead, her husband, is a sanitation worker who has struggled to overcome alcoholism and who had a vasectomy after the couple`s second child. The couple filed for bankruptcy in 1983. She signed a surrogate agreement in early 1985.
Baby M was born March 27, 1986. It was then that Mary Beth Whitehead expressed second thoughts about giving the baby to the Sterns. She never accepted the $10,000 payment. The Whiteheads fled to Florida and stayed there for 87 days before a court ordered them to surrender the child.
Sorkow`s decision giving the baby to the Sterns was not surprising to family-law experts because the Sterns already had temporary custody for nine months, and courts always are reluctant to remove a young child from a stable environment.
What was controversial, however, was how he elaborated on issues, such as the validity of the contract, which some legal scholars thought were unnecessary to reach a decision on custody. The breadth of his commentary laid open for debate a host of questions about surrogacy.
Sorkow reasoned, for instance, that surrogate parenthood for money did not constitute baby-buying because the woman is not selling her child, but is providing a service for a fee.
Jeff Rosenberg, director of public policy for the National Committee for Adoption in Washington, said that conclusion is nonsense and could have dangerous repercussions if allowed to stand.
”According to the contract, the mother gets $10,000 if she delivers a live baby but only $1,000 if she delivers a dead baby,” Rosenberg said. ”The services are exactly the same. Clearly, they are paying for a product, the desired product.
”The potential for exploitation is infinite. All you have to do is walk into a ghetto with $10,000 and say, Will you gestate this embryo?”
Feminists are near unanimous agreement that the decision demeans womanhood.
”What it shows is that women don`t stand for anything,” said Pauline Bard, a sociologist and author at the University of Illinois at Chicago. ”We are simply uteruses to be rented. Twenty years after the women`s movement started, we`re still nothing but that.
”Our feelings count for nothing compared to a man`s ejaculate,” she said. ”We are commodities to be traded and contracted for, and so are the products of our womb.”
George Annas, a lawyer who teaches health law at Boston University Medical School, said that although Sorkow went far in declaring constititonal protection for the sperm donor, he did so at the expense of the same constitutional protections for the surrogate mother.
”She has the right to procreate, too,” he said. ”Whatver constitutional protections you give to a father and an infertile couple, you have to give the same, and I would argue, more, to the mother.”
Annas also noted that part of Sorkow`s ruling held unenforceable one of the contract`s provisions allowing Stern to demand an abortion if fetal tests discovered congenital abnormalities.
”If you can`t alienate your right to abortion, how can you alienate your right to rear your child, at least until after the child is born?” he said.
Other foes of surrogacy say they would moderate their opposition if the contract was nonbinding before birth and gave the biological mother some period of time after birth to change her mind about giving up her baby.
Adoption statutes in every state give this kind of a waiting period to mothers before the adoption is final.
While those against surrogacy were only further antagonized by Sorkow`s ruling, many others laud him.
”It was a very brave decision because it would have been easier for him to appease the adults at the expense of the child,” said Lori Andrews, an attorney with the American Bar Foundation, who has written on the subject and has consulted with a New York legislative committee considering surrogacy laws.
”It would have been better public relations to grant some visitation rights to Mary Beth Whitehead, but I think that would be asking too much of Baby M,” Andrews said. ”It would be asking her to be a bridge between these warring sides.”
Currently, no state has laws on surrogacy, but 14 states, including Illinois, and Washington D.C., are considering proposals. Ten bills in those states would prohibit surrogacy and two others would allow the practice with no exchange of money.
Likely, the difficult social questions will be debated in state legislatures and, like the abortion issue, it may be years before there is a uniform policy in the nation.
