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Death without dignity for commercial surrogacy: the case of Baby M.

Death Without Dignity for Commercial Surrogacy: The Case of Baby M

Both advocates and opponents of "surrogate motherhood" have eagerly awaited the opinion of the New Jersey Supreme Court in the case of Baby M. [1] Because the opinion was unanimous and written by the Chief Justice, like the decision involving Karen Ann Quinlan,[2] its influence is likely to be even greater than originally anticipated. The decision in Baby M will set the legal agenda for future discussion of surrogate motherhood.

This highly publicized case involves a custody dispute between a father and a mother. The father, William Stern, had contracted with the mother, Mary Beth Whitehead, to bear him a child through artificial insemination. The contract, among other things, provided that she would receive a fee of $10,000 upon terminating her parental rights and giving up the child to him. A lower court held that the contract was enforceable; and that custody of the child, known as "Baby M," should be awarded to Mr. Stern on the basis of the child's best interests. In addition, the lower court terminated Mrs. Whitehead's parental rights, and granted Elizabeth Stern's request to adopt Baby M. Mrs. Whitehead appealed, asking the court to determine "surrogacy contracts" unenforceable and void, to reinstate her parental rights, and to grant her custody of Baby M. The opinion of the lower court reflected bias towards favoring the rich over the poor, and was "filled with contradictions, double-standards, inapt analogies and unsupported conclusions."[3] The Supreme Court's unanimous opinion remedies many of these flaws by invalidating surrogate contracts, applying existing law to determine custody, and restoring Mrs. Whitehead's parental rights.

Surrogacy Terminology

The most powerful and well-reasoned portions of the opinion deal with "surrogacy contracts." The court is not impressed by attempts to sanitize the surrogacy procedure by mislabeling it. It notes simply, "the natural mother [is] inappropriately called the 'surrogate mother.'" Mary Beth Whitehead is not and was not a "surrogate mother"; she is Baby M's natural mother.

The opinion also highlights the deceptive nature of the claim by supporters of surrogacy that the practice is family building. The court clearly understands that this method of reproduction can help one family only at the expense of another. The dissolution of the marriage of the natural mother is not necessary to the success of the contract, but a severing of the mother-child bond is: the "surrogate mother" arrangement creates a family bond only by destroying a family bond.

The court also recognizes that the common assertion that surrogacy involves new science and medical technology is nonsense. The only technology involved is donor insemination, an already well-established procedure. The novelty in the method is legal: a contract drafted by lawyers to define the legal relationships between a mother, a father, and their child in an attempt to circumvent state laws regarding custody, adoption, termination of parental rights, and baby selling. Fooled by broker publicity touting the innovative and beneficial aspects of such arrangements, Superior Court judge Harvey R. Sorkow saw surrogacy as so modern and marvelous that it could not possibly be subsumed under any existing laws. The Supreme Court saw through surrogacy and focused on the contract's reality and the body of applicable existing law.

The Surrogacy Contract

The court determined surrogate contracts invalid because they conflict with (a) statutes that prohibit the payment of money to a woman to induce her to give her child up for adoption; (b) the state's adoption laws that permit irrevocable surrender of a child only after birth; and (c) laws requiring proof of abandonment or unfitness prior to termination of parental rights or adoption without consent.

Like most states, New Jersey law prohibits paying or accepting money in connection with any placement of a child for adoption (fees to an approved nonprofit entity and certain childbirth expenses are excepted). The contract attempted to make the surrogacy arrangement look like "payment for services" by the father rather than payment to obtain a child, but the court was not persuaded. It properly noted that payment was limited to $1,000 if the child was stillborn (even though all "services" would have been rendered), and all parties knew that Mrs. Stern planned to adopt the child. The court rightly observed: "It strains credulity to claim that these arrangements, touted by those in the surrogacy business as an attractive alternative to the usual route leading to an adoption, really amount to something other than a private placement adoption for money."

What's wrong with using money to place a child for adoption? Why has New Jersey made this a "high misdemeanor" with a penalty of three to five years in prison? Why does the court consider payment "illegal [and] perhaps criminal"? The court provides several reasons for condemnation of "the evils inherent in baby bartering." First, there is no concern for the child, who "is sold without regard for whether the purchasers will be suitable parents." Second, the process fails to provide any counseling or guidance for the mother or to inhibit the coercive nature of payment to her. Finally, there is a potential for exploitation of all parties involved. The court could have added that commodification of children devalues them (and all children), treating them like products or pets for our own pleasure.

The profit motive is additionally suspect for it takes precedence over concerns for even predictable and devastating human suffering. For example, in this case the baby broker agency failed to make any further inquiry when a psychological evaluation of Mrs. Whitehead revealed that she might change her mind and want to keep the child. The court reasoned, "It is apparent that the profit motive got the better of the Infertility Center.... To inquire further might have jeopardized the Infertility Center's fee" The broker's greed is the prime motivation behind "surrogacy"--not the pain of infertile couples or the ability of women to enter into binding contracts. As the court properly underlines, the originator of this scheme to circumvent the adoption laws by private contract is "a middle man, propelled by profit" who "promotes the sale.... The profit motive predominates, permeates, and ultimately governs the transaction." The court assures us, however:

There are, in a civilized society, some things that money cannot buy.... There are... values that society deems more important than granting to wealth whatever it can buy, be it labor, love, or life.

Even if money is removed from the transaction, two further conditions must be satisfied before a "surrogate agreement" could be consistent with New Jersey law. The mother must retain the right to revoke the agreement at least until the child is formally given up for adoption after birth. And, if the father decides to contest her revocation by a custody suit, the mother's parental rights can only be terminated upon a showing of either unfitness to parent or abandonment. Parenting is more than a contractual statement of intentions.

The court also determined that surrogacy contracts violate public policy on two independent grounds. The first is that the best interests of the child (not monetary payment) should govern in a custody dispute. Secondly, surrogacy contracts violate the basic policy that "the rights of the natural parents are equal concerning their child, the father's no greater than the mother's."

Constitutional Issues

The court did not deeply examine the constitutional issues that might arise should the state enact a statute permitting surrogacy contracts. The constitutional argument favoring such contracts has been based on the legal content of a husband's "right to procreate." The court concluded that the constitutional "right to procreate" is limited to "the right to have natural children, whether through sexual intercourse or artificial insemination."

The issue of custody was properly treated separately from that of procreative rights, and decided in exactly the same way as in any out-of-wedlock birth. The court ruled that fathers have no constitutional right to custody when it is opposed by the mother, and that the constitutional rights of the father to custody can in no way be greater than those of the mother. Although the analogy was not used by the court, it would also seem that the husband of an infertile wife would have no more constitutional right to purchase a child from its mother than he has to purchase a license for a second (fertile) wife.

Custody of Baby M

The court rejected a proposal that to deter future surrogate mother agreements, it should award custody to Mrs. Whitehead, regardless of the best interests of the child. Instead, the court maintained, "Our declaration that this surrogacy contract is unenforceable and illegal is sufficient to deter similar agreements. We need not sacrifice the child's interests in order to make that point sharper." Likewise, it was suggested by some that because the initial ex parte hearing, which resulted in a decision to give temporary custody of the child to Mr. Stern, was so unfair and outcome determinative, justice would be served only by returning the child to Mrs. Whitehead. [4] The court also rejected this suggestion, noting that the primary concern must be the best interests of the child under present circumstances, even if these circumstances resulted from legal error.

The court concluded that it would be in the child's best interests for her to remain with the Sterns, primarily because of the stability of their marriage and the fact that she has lived with them for so long. Because of the importance of the parent-child bond to the child, custody decisions almost always depend heavily on the length of time a child has lived with one of its parents. Although the court maintained several times that Mrs. Whitehead's recent divorce and remarriage did not affect the custody decision, it almost certainly made it easier.

Doesn't this conclusion, however, amount to an endorsement of surrogacy, and provide a practical way to persuade women not to attempt to retain custody of their children, since they will surely lose when their less affluent life-style is compared to that of the wealthy father and his wife?

This is certainly one possible reading of the opinion. But the court's disapproval of the initial decision awarding temporary custody to Mr. Stern, and of "surrogacy contracts" in general, is strong. Perhaps to forestall this possibility, the court insists that, in any future custody battles, physical custody of the newborn child remain with the mother during the hearing to determine permanent custody. The court's reason is that the bond between mother and newborn is more significant than that between father and newborn. Since Mrs. Whitehead's parental rights were restored and she was declared a fit mother by the court, there is little doubt that had Mrs. Whitehead retained custody during the hearing and appeal, she would have been awarded permanent custody of the child by this court.

This part of the opinion may be the most controversial, since it appears to contradict the court's assertion that the rights of the mother and father in custody cases must be equal. But, in order to avoid an immediate tug-of-war and an arbitrary judicial ruling prior to a full hearing (like the one in this case), we need a rule that states who will retain custody during the hearing. It must be one or the other, and it seems reasonable to choose the mother. Treating the mother's rights as superior immediately after birth simply recognizes the biological reality that the mother at this point has contributed more to the child's development, and that she will of necessity be present at birth and immediately thereafter to care for the child. In situations where the mother is poor, and the father is financially well off, support payments during the hearing (rather than "custody to the rich") also seem reasonable.

Since Mrs. Whitehead's parental rights were unlawfully terminated initially, there was no basis to deny her visitation rights. Just what form they should take should be determined by the Sterns and Mrs. Whitehead, who, hopefully, will attempt to work out the details of visitation with Baby M's best interest foremost. If they cannot, however, yet another court hearing will, unfortunately, be required to decide this issue.


The responses to this sound opinion by the commercial baby brokers have been predictable. California's William Handel, for example, has said that the decision is "no going to affect surrogate parenting" at all. Handel has never thought that the contracts he drafts are enforceable; and in his practice no mother changes her mind, and "no one loses." In his words, "The surrogate mothers walk out fulfilled and satisfied...." [5] Michigan's Noel Keane, "the father of surrogate parenting," says, "The legal implication is simply that it's a New Jersey decision and it's limited to New Jersey," [6] And some "surrogate mothers" continue to use inaccurate rhetoric to justify their actions. In the words of Shannon Boff, "For us, giving someone a baby is as noble as giving a kidney to someone who needs it." [7] Ms. Boff failed to note that children are not organs, that if they were, it would be illegal to sell them everywhere, and that she does not "give" the baby away, she sells it.

Brokers need a dose of realism. They should not be permitted to hide behind the grief of infertile couples. They are not in business to help them; they are in business to make money. The sperm donor's wife is not screened for infertility, and in the Baby M case, Mrs. Stern herself was not infertile. The primary screening brokers do is monetary: does the couple have the $25,000 fee? Organizations that represent infertile couples, like RESOLVE, have always opposed baby selling and have been skeptical of surrogacy. No one is "giving" anyone anything in surrogacy: it is the sale of the mother's interests in a child to its father.

The New Jersey Supreme Court might accept noncommercial or voluntary surrogacy where there is true "gif-giving" and no monetary exploitation. Others have argued tha voluntarism is just as bad as commercialized surrogacy, because it still involves the planned destruction of a mother-child bond that may be contrary to the best interest of the child. I have some sympathy for this view, but one can distinguish between doing something out of love and doing it for money. As long as existing adoption laws are followed, voluntary relinquishment of a child to a close relative (such as an infertile sister) seems acceptable.

Legislation to "outlaw" surrogacy will be widely proposed, but as this opinion indicates, in states with laws like New Jersey's, such laws are probably unnecessary. Noel Keane and William Handel have been right all along: surrogacy contracts are not enforceable. Now that mothers know that they can legally change their minds and retain custody of their babies, many more are likely to do so, and fewer couples are likely tol risk this possibility. In addition, now that there is a strong state supreme court opinion labelling commercial surrogacy "baby selling," state attorney generals, local district attorneys, and child protection agencies are likely to be much less tolerant of the l practice, and the prosecution of at least some baby broker agencies should be anticipated. And it is time for licensing boards to ask attorneys who continue to act as brokers in surrogacy arrangements the question: Why isn't it legal malpractice and fraud to charge clients money to draft a contract you publicly describe as "unenforceable"?

It seems prudent to enact legislation now to head off the development of so-called full surrogacy, in which new science (in vitro fertilization and embryo transfer) is used to implant an embryo into a woman who is not genetically related to the embryo. [8] This could make "surrogacy" much more attractive, since the resulting child will be the genetic child of both members of the couple, and the gestational mother could simply be considered an incubator or container with no rights or interests in the child at all. For all the reasons the New Jersey court gives to favor the mother over the father for temporary custody immediately after birth, and in addition, because pregnancy and childbirth is much more psychologically and physically demanding than egg production, it seems reasonable to designate the gestational mother, rather than the genetic mother, the legal or "natural" mother of the child. [9] A statute that clearly and irrebuttably so designates the gestational mother would be protective of children, and make the exploitation of poor women by the rich through "full surrogacy" much more difficult.

The opinion in the Baby M case, coupled with its previous significant decisions on the right to refuse treatment, firmly establishes the New Jersey Supreme Court as the country's preeminent "bioethics court." The court has properly applied the laws related to custody, adoption and termination of treatment to enhance the welfare of children, rather than adults. In this context, commercial surrogacy deserves the death without dignity to which the court has condemned it. Efforts to resuscitate it would not be in the best interests of children, families or society.


[1] In the Matter of Baby M, A-39-87, Feb. 3, 1988.

[2] In re Quinlan, 355 A.2d 647 (NJ 1976).

[3] George J. Annas, "Baby M: Babies (and Justice) for Sale," Hastings Center Report 17:3 (June 1987), 13-15.

[4] Annas, "Baby M: Babies (and Justice) for Sale."

[5] "Court Ruling Won't Hold Surrogate Parenting Back," USA Today, Feb. 8, 1988 at 15A.

[6] M. McQueen, "Baby M: Debate Not Over Yet," USA Today, Feb. 8, 1988 at 10A.

[7h McQueen, "Baby M: Debate Not Over yet."

[8] George J. Annas, "The Baby Broker Boom," Hastings Center Report 16:3 (June 1986), 30-31.

[9] Sherman Elias and George J. Annas, Reproductive Genetics and the Law, (Chicago: Yearbook, 1987), 238-42.

George J. Annas is Utley Professor of Health Law, Boston University School of Medicine; and Chief, Health Law Section, Boston University School of Public Health
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Author:Annas, George J.
Publication:The Hastings Center Report
Date:Apr 1, 1988
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