Surrogate Contracts: a Danger Zone : All Parties Open to Exploitation if Child Is Treated as Property

“Surrogacy Is Legal” proclaimed the headlines, and once again the aphorism that hard cases make bad law proved to be true.

For months the parents of Baby M--as the year-old girl was known in the courtroom of Judge Harvey Sorkow in Hackensack, N.J.--had fought for custody. But in going beyond that issue and upholding the legality of the so-called surrogate-mother contract, the judge triggered a broad ethical war even as he ended one legal battle.

In validating the contract by which Mary Beth Whitehead and her husband, Richard, agreed to surrender their parental rights to William and Elizabeth Stern, the court decided an issue that it could have avoided.

Judge Sorkow’s ruling is full of ironies. He claimed to be protecting women’s freedom--on the ground that if a man can sell his sperm (for artificial insemination), then a woman should be free to do likewise with her uterus. Thus, in the name of freedom, a woman who signs a surrogate contract is deprived of the right that is usually given to parents who change their minds within a certain period after giving up a baby for adoption. Statutes make this provision because it is well known that some mothers become so attached to their babies during pregnancy that it would be cruel to hold them to their commitment to adoption.

The analogy between sperm and uterus not only is biologically inapt (the correct comparison would be to women selling their ova) but also denies a physical and psychological fact that even the strongest laws on equal treatment of the sexes cannot gainsay: that women play a role in reproduction that has no male counterpart. To suggest otherwise is simply silly.

The judge’s reasoning in support of his second conclusion--that payments to surrogate mothers do not amount to baby selling or to the commerce in human lives that the 13th Amendment was intended to prohibit--is likewise faulty.

The claim that the payment is for the surrogate’s services, not for the baby, is refuted by the contracts themselves. They provide that payment will not be made if the woman miscarries. Moreover, while the agreement is made before the pregnancy, payment is made only after a surrogate and her husband sign away the child to the adoptive parents. For example, Stern said that he wanted a child not for his own ego but because he is the only remaining descendant of families decimated by the Nazi Holocaust. But what he really bargained for wasn’t just the preservation of genes but being able to raise the child as well.

To this, the court replied that a man “cannot purchase what is already his.” But one joint tenant to property can indeed pay the other to give up rights in their property. Looking at the contract, it is apparent that Stern planned to pay the Whiteheads for the equivalent of a “quit claim” to their interests in the baby, who was thus treated like property.

A major reason for the laws against baby selling is to protect necessitous people from exploitation of this sort. The judge dismissed such concerns as “insensitive and offensive to the intense drive to procreate naturally and, when that is impossible, to use what lawful means as possible to gain a child.” Of course, this begs the issue: Are surrogate contracts a “lawful means?” But, more important, the “intense drives” cited by the judge are the very forces that society must be on its guard to control, lest they lead people to do things that they would deplore in a cooler light.

As important as such concerns about the exploitation of women may be, they divert us from what ought to be the major focus of any examination of the law in this area. The nature of the dispute--pitting Whitehead’s anguish against Stern’s fervent and frustrated longing--inevitably spotlighted the adult litigants, just as the contracts themselves mainly address the rights and obligations of the adult parties. But the real parties in interest, and the ones in greatest need of society’s protection, are the children.

Part of what is at issue here is symbolic: Are children going to be increasingly regarded as chattel, as means to fulfilling the desires of adults? Of course, that happens with natural reproduction. But do we want to encourage it?

Beyond the symbolic are the practical concerns for a child’s welfare. Take just one example: Suppose the outcome of a surrogate pregnancy is not a healthy child. Where will such a child turn for love and support? To surrogates who have conscientiously avoided forming any attachment during the pregnancy and who, in the words of one unwed surrogate’s boyfriend, see it as akin to “watching someone’s car for nine months”? Or to the father and his wife who are paying good money for what they obviously expect to be a “good” baby?

Even if the law says that they must take the baby, won’t they be tempted to deny paternity, or to prove that the baby’s problems were caused by the mother’s actions during pregnancy or some other “fault” (such as failing to reveal a genetic disorder in her family history)?

And what about the other children of the surrogate? How secure can they feel when they learn that their brother or sister has been traded for $10,000? If the price is right, are they for sale, too? Conversely, might the situation breed resentment in some children that they weren’t taken from their family and adopted by other, more affluent, parents?

It remains to be seen whether medical science can develop other, better, means of overcoming the rising rate of infertility. Or perhaps social attitudes will change, making adoption more attractive, abortion less frequent and even the condition of being childless less unbearable than it now is for thousands of couples.

Until that time, surrogate arrangements will persist. But there is no need for state legislatures to rush to adopt measures to make this practice any easier. Before the Baby M case, the law--which establishes that a woman who bears a child is its legal mother until she surrenders her parental rights (and her husband is presumed to be the child’s father unless proved to be otherwise)--protected the resulting children by reminding women who act as surrogates that their relationship to the child would, at least initially, be the same as to any child.

The element of uncertainty that the traditional rule had created for surrogacy contracts may well discourage people from entering into them, which in my view is all to the good.

The only clarification needed in the law is that for-profit brokering of surrogate contracts should be seen for the illegal and undesirable activity that it is: illegal because of the baby-selling laws, and undesirable because the financial motive will lead to inadequate screening of prospective surrogates. Not only is it unseemly to profit in this way from such a desperately felt human need, but also lining up a group of potential surrogates for inspection by infertile couples resembles nothing so much as the role of a madam displaying her wares in a bordello.

As the Warnock Committee in Great Britain concluded, it would be hard to eliminate surrogacy entirely, but outlawing commercial operations should hold down the numbers and diminish the likelihood of exploitation. Beyond this, the sad case of Baby M shouldn’t propel legislators into following Judge Sorkow’s example and making any more bad law.