Whose Child Is This?

By Richard Lacayo

The second half of the 20th century has been full of uneasy trade-offs and Faustian bargains. One after another, life's most intimate and privileged matters -- sexual relations, conception, birth and death -- have been delivered to the unsanctified ground of science and commerce. The results may be welcome: the laboratory study of sex leads to treatments for sexual dysfunction; technologies of fertility give hope to the childless; mechanical organs offer the chance of longer life. But even as the gains are counted, the reservations mount. Even when the mind assents, the heart sometimes shivers.

For anyone but the central figures, and perhaps for them as well, mixed emotions are the only kind that seem fitting to bring to the New Jersey courtroom where a landmark case involving custody of a 9 1/2-month-old infant is being heard. Mary Beth Whitehead thought she knew herself in 1985, when she contracted, as a surrogate mother, to bear a child for William and Elizabeth Stern. But her certainties crumbled when she gave birth last March to the girl she calls Sara, the Sterns call Melissa and court papers call Baby M. In hours of emotional testimony last week, Whitehead told the court that the experience of childbirth "overpowered" her. Her husband said that after handing over the child to the Sterns, his wife cried hysterically, asking, "Oh God, what have I done?"

The court battle over Baby M. will answer only a part of that question. In deciding the case, New Jersey Superior Court Judge Harvey Sorkow becomes the first judge in the U.S. asked to enforce a surrogate agreement. He could treat the case mainly as a contract dispute, rule that the contract is valid and award the child to the Sterns. Or he could opt to treat it basically as a custody battle; then the best interests of the child would be the guiding principle. Custody is often awarded to mothers, but since Baby M. has been living with the Sterns at the judge's order for most of the time since she was born, that approach may favor them too.

Any decision is almost certain to be appealed. Yet even when the final court has its final say, the echoes of Whitehead's anguished question will still hang in the air. If a society legitimates surrogacy, what has it done? Has it imperiled its most venerable notions of kinship and the bond between mother and child? Has it opened the way to a dismal baby industry, in which well-to-do couples rent out the wombs of less affluent women, sometimes just to spare themselves the inconvenience of pregnancy? Yet if surrogacy is prohibited, has a promising way for childless couples to have families been denied them? And what if the truest answer to those questions is also the most problematical -- yes to all the above?

In the crowded courtroom in Hackensack, N.J., listeners heard repeated last week the now familiar outlines of the story. William Stern, 40, a biochemist, and his wife Elizabeth, 41, a pediatrician, contracted with Whitehead early in 1985 for her to conceive a child through artificial insemination and carry it on their behalf. The three were brought together through the Infertility Center of New York, a for-profit Manhattan agency. The Sterns chose Whitehead, now 29, after reviewing and rejecting the applications of 300 women. Some drank. Some smoked cigarettes or marijuana. Some just did not look the part. The Sterns wanted a candidate "who might have looked like us," said Elizabeth Stern.

Mary Beth Whitehead seemed perfect. A housewife with two school-age children by her husband Richard, she had wanted to become a surrogate mother to help a childless couple. She claimed to want no more children of her own. After she met the Sterns for the first time at a New Jersey restaurant, the three became friends, trading phone calls back and forth. Whitehead signed a contract, promising among other things that she would not "form or attempt to form a parent-child relationship" with the resulting infant. The Sterns promised to pay her $10,000, plus medical expenses. They paid the center $10,000. But during delivery, Whitehead told the court last week, she decided she could not go through with it. "Something took over," she said. "I think it was just being a mother."

Whitehead, who did not accept her fee or sign over custody, took the child home with her. Three days later the Sterns collected the baby from the Whitehead home, but next morning Whitehead came by to beg for the infant's temporary return. After a two-hour encounter that both sides say was punctuated by emotional outbursts, the Sterns reluctantly agreed. "We thought she was suicidal," William Stern said. Two weeks later, when the Sterns came to her home, Whitehead told them she would not give up the child.

The following month, after obtaining a court order that required the infant to be handed over to them, the Sterns returned, accompanied by five policemen. In the confusion, Richard Whitehead slipped away with the child through a bedroom window. The Whiteheads then fled with the baby to Florida, where they were tracked down by a private detective hired by the Sterns. Authorities took the infant and returned her to New Jersey. Last September, Judge Sorkow gave temporary custody to the Sterns, but he allowed Mary Beth Whitehead to spend two hours twice a week with Baby M. on the neutral turf of a local children's home.

The judge, who is hearing the suit without a jury, will have little to guide him as he makes his decision. There have been at least four other instances in which a surrogate mother has decided to keep the child. The cases either were settled out of court or produced no guiding precedent. In the past few years, at least 21 states have groped toward legislation on surrogacy, without success. Laws defining and regulating the practice must somehow be distinguished from statutes in all 50 states against baby selling. Further, in the 29 states that have laws covering artificial insemination, the consenting husband of a woman who is artificially inseminated is deemed the legal father. The opposite is proposed under potential surrogacy legislation in which the semen donor is considered the father.

But paradoxes abound throughout the subject of surrogacy, a notion that speaks to the parental instinct and offends it in the same stroke. So that a father can enjoy a blood relation to his child, the surrogate mother is persuaded to treat the same bond as negotiable. For all the complexities, however, surrogacy is one of the simplest and most venerable of the new conception options. Even the Bible offers a parallel (in the Book of Genesis, naturally). When his wife proved unable to conceive, Abraham impregnated her handmaiden Hagar, who bore Ishmael. There were hard feelings in the aftermath of that arrangement too.

Modern contract surrogacy emerged around 1976. Noel Keane, a Dearborn, Mich., attorney who helps run the infertility center that is involved in the Baby M. case, handled one of the first such arrangements. "I know there are thousands of people who want it and need it," Keane once wrote of surrogate motherhood, "including the surrogate mothers."

Statistics on the subject are few and inexact, but Keane estimates that 500 children have been born to surrogate parents since then, 65 of them last year. About a dozen surrogate centers are in operation around the country. The number is small but is likely to grow at a time when as many as 15% of married couples in the U.S. meet the medical definition of infertile.

That potential demand makes some people anxious to see the surrogate practice halted now. "If you regulate it," objects William Pierce, president of the National Committee for Adoption, "that is making a public statement that it's all right. We decided a hundred years ago we didn't want people bought and sold in this country." Some religious groups vehemently oppose the practice. The Roman Catholic Church, which condemns artificial insemination outside of marriage, regards surrogacy as a violation of the biological and spiritual unity of husband and wife. In a joint statement last month, New Jersey's bishops further contended that surrogacy "exploits a child as a commodity and exploits a woman as a babymaker."

Rabbi Moses Tendler, professor of Jewish medical ethics at Manhattan's Yeshiva University, is no less affronted by what he calls the hiring of a "uterus for nine months." He maintains, "In the old days you could buy a whole person -- a slave -- to do with as you wished. Now, if these surrogate contracts are accepted, you'll be able to buy just a specific organ."

One argument for legalization is that forbidding surrogacy will simply drive it underground, ensuring that an unregulated black-market trade will flourish. But if the practice is to be permitted, in what form should it survive? Fearing that conception, the most intimate of functions, might become one more branch of private enterprise, some experts want surrogacy to be conducted like adoption, mostly through nonprofit agencies. "I do not think people should be gestating babies for money," says Arthur Caplan, director of the Bio-Medical Ethics Center at the University of Minnesota. "Entrepreneurs who come into the business are not being screened."

Indeed, the sharpest objection to surrogacy is the prospect of watching conception itself go commercial. "Children are not goods or property," says Norman Robbins, a Birmingham, Mich., attorney with a special interest in family law. "Children cannot be bought or sold by parents." While pregnancy can be as much an ordeal as a blessing, sanctioned compensation raises the prospect of some women, especially among the poor, turning to careers as professional breeders. Truly nightmarish prospects of a breeding market may be on the horizon, with greater use of the in vitro procedure, a still uncommon practice, which makes possible the insertion of the laboratory- fertilized egg of one woman into the womb of another. Some fear that the poorest American or even Third World women would become human incubators for prosperous couples who prefer not to gestate their own offspring.

And if surrogacy is acceptable for infertile couples, what about others who want children -- infertile singles, say, or married women who fear that pregnancy will interrupt their careers? The Baby M. case has already touched on the latter issue. It was once presumed that the Sterns resorted to the surrogate process because Dr. Stern was unable to conceive. A different reason emerged in court last week, when William Stern testified that his wife had been diagnosed in 1979 as having a probable mild case of multiple sclerosis. The couple turned to surrogacy, he now says, because they feared that a pregnancy could result in her paralysis or even death. Whitehead's lawyers will be calling medical witnesses to cast doubt on the likelihood of such an outcome, with the implication that Dr. Stern's real concern was to avoid disrupting her career.

"We need to treat these matters in much the same way that we now regulate adoption," says Doris Jonas Freed, chairman of the New York State Bar Association committee on surrogacy. Among other things, she would require comprehensive investigation of potential surrogates and contracts containing cooling-off periods to allow surrogates to change their minds. "In fact," she says, "a surrogacy contract should require the sanction and approval of the courts."

Elizabeth Kane, 44, a mother of three from Pekin, Ill., and one of the nation's first contracted surrogate mothers, firmly believes such women need more legal protection. "I would still give the birth mother first choice," Kane says. If she does give up the child, psychological counseling should be provided for her after delivery. "A woman needs to talk to someone and say, 'I miss my baby.' I had to suppress those feelings for years." During the pregnancy, she says, contracting couples are always solicitous. "But once you've delivered, they are not interested in you. We give up so much to have a child for another woman, and then we don't have any rights."

A standard contract currently used in many such arrangements does not provide the surrogate mother with many rights, but puts a good number of restraints on her. She agrees to abstain from smoking, alcohol and drugs as well as sexual intercourse during the period around insemination. Most agreements forbid her to abort without consent of the father, though some require it if amniocentesis reveals fetal abnormalities. And while the mothers are screened, though not always with sufficient diligence, the contracting couples often are not. What are the ethical dilemmas of a surrogate mother who delivers her child into a home she knows little about?

In September a committee formed by the American Fertility Society of Birmingham issued a 100-page volume of ethical guidelines relating to the host of new reproductive technologies. Because of the risks to the mother, the committee pronounced itself "not favorably disposed to the use of surrogate mothers for nonmedical reasons." But the members declined to issue an across-the-board condemnation. And they deplored the absence of reliable data from which to draw conclusions. Mary Beth Whitehead is a high school dropout who married at 16. Is that typical of surrogate mothers? Are they more likely % to be exploited or fulfilled, altruistic or driven by dark motives?

The American principle is ever an active one: to set to work on a problem and be done with it. In an area with so much potential for exploitation and grief, that impulse is easily understood. But to shape lasting solutions now -- whether to legitimate surrogacy or prohibit it -- may be premature when so little is known. "We have real concerns about the widespread use of surrogacy until more study is done," says Dr. Richard Marrs of Cedars-Sinai Hospital in Los Angeles and a member of the committee that drew up the fertility society's guidelines. "We have to reserve our ethical judgment until we see the data."

Still, one question must be answered. Whose child is Baby M. to be? Sympathies can be divided, the infant cannot. Solomon's threatened sword will no longer bring a simple answer. Deciding her fate will require all of Judge Sorkow's compassion, sense and ability to appraise clearly the issues involved. In March the baby will have her first birthday, almost certainly before she has her last name. It is unconscionable, unacceptable for her, but the questions her case raises are painful and daunting. When the opportunities that technology provides bring dilemmas in their wake, technology rarely provides answers to them. In the end, only people bear children. People will have to bear the consequences too.

With reporting by Roger Franklin/Hackensack and B. Russell Leavitt/Atlanta