Bar’s Family Law ‘Think Tank’ Tackles Surrogate Motherhood Issue : Legal, Moral Implications of Surrogacy Discussed at Palm Springs Meeting; Group Drafting Model Act Outlining Rights, Responsibilities of Those Involved

“They feel great pain for the child,” said Gary Skoloff, attorney for William and Elizabeth Stern, who have temporary custody of Baby M, the infant now the center of a legal battle that is testing the concept of surrogate motherhood. He said that they are determined to try to “insulate” the child--”They have no intention of cooperating in any book or movie” or TV venture. In a telephone interview yesterday, he emphasized, “They are very private people and they are traumatized by the publicity now attendant upon what they thought was a very private decision to create a family.”

Mary Beth Whitehead , the surrogate mother , has testified that she was “overpowered” by the experience of Baby M’s birth, and her husband, Richard, quoted her: “Oh, God, what have I done?” She has not signed over custody.

PALM SPRINGS--With the court battle over New Jersey’s “Baby M” as the background, the American Bar Assn.’s family law section met here over the weekend to grapple with the legal and moral implications of surrogate motherhood.

Among the questions raised were:

--Is society creating a class of “breeding women”?

--Are babies becoming the products of entrepreneurships?

--What are the emotional implications of a child so conceived?

--What should the ethical guidelines be in governing surrogate contracts?

--Is it a dangerous precedent for the state to decide who has the right to procreate?

--What happens if a contracting couple dies before the child is born?

--Does anyone really understand the grief suffered by the surrogate when she surrenders her newborn?

--Who is responsible if the surrogate dies from complications of pregnancy or birth?

--How much she should be paid should she miscarry?

As a “think tank” of family law experts, the ABA group has set about drafting a model act governing surrogate motherhood. No state now has laws either legalizing surrogacy or outlawing it, or spelling out rights and responsibilities of those involved in these babies-by-contract arrangements.

The debate here was evidence of the recognition by this body that, as Century City attorney Stuart B. Walzer put it, “The technology has outdistanced the social forms,” making possible such phenomena as artificial insemination and “test tube” babies, but leaving society to deal with the resulting lives in disarray.

The catalyst is the case of “Baby M.” In Bergen County, N.J., Superior Court Judge Harvey Sorkow is expected to hand down a decision about the end of February: Does the blonde, blue-eyed nine and a half-month-old infant belong to her surrogate mother, Mary Beth Whitehead, 30, of Brick Township, N.J., or to William and Elizabeth Stern of Tenafly, N.J., who contracted for her to be conceived?

There have been three or four other cases in which surrogate mothers have, after the fact, had second thoughts about giving up the child.

Baby M is “a case that never should have been,” Gary Skoloff of Newark, the Sterns’ attorney and a member of the family law section council, said here. “It’s absolutely amazing that nobody was ready for it.” It is, he said, a textbook example of “the law falling way behind science.”

“What is a family today?” Walzer asked. “The lawyers have been corrupted into becoming money making machines and forgetting that there are broader social issues.”

Ira Lurvey, who also practices in Century City, interrupted an informal discussion of surrogate motherhood as a women’s issue to suggest that “it’s not that cut-and-dried. Who’s really considering the dignity of life?” Surrogate motherhood, he said, is a potentially devastating practice and needs to be studied with the deepest intellectual commitment.

“What we’re saying is acceptable is changing,” Lurvey said. “We’re changing all the ground rules for living. We’re asking society to enforce a new set of rules.”

Lynne Gold-Bikin, a council member from Norristown, Pa., pointed out that the ABA’s family law section has 15,000 members (by no means all of those practicing in the specialty) and there have been about 500 children born by surrogacy arrangements so “few of us had these cases. You tend to focus on the problems that come to you.”

“The law very rarely anticipates,” explained Leonard Loeb, a council member from Milwaukee. A year ago the ABA group began its efforts to draft model legislation but, Loeb predicted, the ABA as a whole will grant its approval to a model act in August of 1988 “at the earliest” and it could then be “years and years” before individual states adopt it or amended versions. (Assemblyman Mike Roos (D-Los Angeles) introduced a bill in Sacramento back in 1982.)

Surrogate motherhood, Skoloff argued, “is a beautiful social purpose,” and the only “viable” option today for most childless couples. (A typical arrangement, between two sets of adults, calls for artificial insemination of the surrogate mother by the sperm donor father and a contract stipulating that the surrogate will deliver the child to the biological father and his wife, who will adopt the child.)

When Skoloff speaks of surrogacy as the only “viable” option for childless couples, it is with the assumption that middle-class Caucasian couples want flawless Caucasian infants. Agencies have too few homes for children of color or mixed race, older or handicapped children, but virtually no white infants available, a result of lifting of the stigma on unwed mothers and of accessible birth control.

Here are the highlights of the weekend discussion:

THE SURROGATE

It was apparent at this conference that many members are as concerned with the sociological as with the legal implications of surrogacy. Several times the rhetorical question was raised: Have we created insoluble problems?

Critics of the principle of surrogacy ask whether society is creating a class of “breeding women” to serve the needs of those able to pay the surrogate’s fee (average: $10,000) plus another $10,000 in “matchmaker” fees?

It isn’t nobility that motivates most women to become surrogates, critics contend, but, rather, financial need. Is this exploitation?

Alan Grosman, a Short Hills, N.J., attorney who formerly represented Mary Beth Whitehead, questioned, too, the effect on the biological mother and on members of her family, as well as on the adoptive mother. And he cautioned that surrogacy is no panacea, that it is still a questionable experiment. “If I had my druthers, I would ban surrogacy,” he said in advocating a go-slow approach until there are studies and statistics.

He deplored what he called surrogacy as a “commercial venture” and the concept of “mother machines” and observed, “We’re getting farther and farther afield from families as we know them.”

And he argued that the surrogate mother “should be given an opportunity to reconsider after the child is born,” just as in adoption cases the biological mother is given by law an average of three days to decide whether to sign release papers.

T. H. Guerin Jr., a Phoenix attorney who opposes surrogacy, expressed his concern that “a young woman will be duped or coerced or forced into renting her body,” either for economic or psychological reasons. Both of these possibilities have been addressed by some feminists who question whether in a marketplace where women workers earn much less than men, surrogates are actually acting of their own free will.

Gary Skoloff disputed whether the majority of surrogate mothers are desperately poor. For the most part, he said, they are “women who want that extra money for education for their own kids” and who’d rather bear this baby than “work in a department store.”

THE BABY

Another concern voiced here is that babies are becoming the “products” of entrepreneurships run by attorneys and gynecologists for profit.

And what of the emotional implications for the child so conceived? The tragedy of the Baby M case, said attorney Skoloff, is the life to which this infant is condemned, no matter who wins in court. One day she will be 5, starting kindergarten, he noted, “and the media will be there.”

The majority here did not favor outlawing surrogate motherhood, even those philosophically opposed, believing it is too late for that.

During debate, Grosman said surrogacy “may be a beautiful idea for the (contracting) couple” but, he asked, “is it a beautiful idea for the child (who may feel) his mother sold him?”

THE LAW

Beverly Anne Groner, a Bethesda, Md., attorney who chairs the ABA’s family law section, was thinking in philosophical terms about regulation of surrogacy: Is it a dangerous precedent for the state to decide who has the right to procreate? “Other people are free to conceive,” she reasoned, and need have “no reason at all. There’s no prohibition against meeting somebody in a corner bar and conceiving a child with him.”

Leonard Loeb of Milwaukee wanted to know how one gets around “the fundamental constitutional issue . . . that you’re selling a child for money, the slavery issue.”

There were other issues brought up for debate: The opposition of some religions, including Roman Catholicism, the inevitability that children born through surrogate arrangements will one day want to find their “real” mothers, whether states should specify (as New York has in proposed legislation) that only married couples may enter into surrogate arrangements. (There has been at least one case of a homosexual man becoming a father with a surrogate.)

What should be the ethical guidelines governing surrogate contracts--should the adopting mother have to be medically certified as infertile or can she contract for what some have labeled a “rent-a-womb” arrangement so as not to disrupt her career or ruin her figure?

(In the case of William Stern, 40, and Elizabeth Stern, 41, infertility per se was not the incentive for hiring a surrogate. They said Elizabeth had been diagnosed as having a mild case of multiple sclerosis and they feared childbirth might be paralytic or fatal to her.)

Whose responsibility is the child born through surrogacy if that child is defective? A child, said Sacramento attorney Michael Barber, is “not like an automobile . . . or a vacuum cleaner you send back.”

Is federal legislation appropriate? What of privacy issues? Is surrogate motherhood a women’s rights issues? “Does a woman have a right to say she’s willing to use her body this way?” asked Lynne Gold-Bikin. “I see this is going to be picked up as a women’s issue. If abortion is a women’s issue, this one certainly is.” In her view, “Women are entitled to have babies for men if they choose.”

What of the inheritance and property rights of a child with four sets of grandparents? What happens if the child later needs his medical history? What compensation is the surrogate entitled to if she decides to abort the pregnancy?

THE FUTURE

Stamford, Conn., attorney Samuel Schoonmaker III expressed concern that surrogate motherhood is “a form of genetic engineering that could be potentially dangerous . . . it’s almost like breeding race horses.” Indeed, potential parents may choose the surrogate mother with a view to getting a tall child, or a blond child, or an intelligent child. Guarantees that the surrogate be drug and alcohol-free cut down the risk of a baby with medical problems.

Skoloff scoffed at the notion of genetic engineering and said, “You’d have great trouble finding a surrogate mother who’s a genius.” (His clients, the Sterns, and Mary Beth Whitehead were as a case in point oddly matched. William Stern is a biochemist, his wife a pediatrician; Whitehead is a high school dropout married to a recovering alcoholic who is a sanitation worker.)

Grosman, who believes it is genetic engineering, “pure and simple,” predicts a time when Third World women, specifically those from Central America, will be recruited as surrogates to “really get the cost down.” Their fee might be a tenth of today’s average $10,000.

Once there is perfection of the still experimental in vitro fertilization procedure, in which the egg of a woman unable to bear children is fertilized by her husband’s sperm in a laboratory and then planted in the womb of a surrogate mother, factors such as skin color of the surrogate will cease to become considerations.

THE IMPLICATIONS

Surrogacy is here to stay, “and it will grow,” said Skoloff, because “adoption is almost an impossibility . . . the wait is four to six years.” He added, “The most shocking statistic” to come out of the Baby M case was that “ten to 15% of all married couples in the United States are infertile,” unable to conceive in 12 months of trying. In 40% of these cases, he said, the woman has a problem, in 40% the man does and in 20% the cause is unknown.

“Each year the infertility rate will grow,” Skoloff said, citing such factors as women waiting longer to have children, more women in high pressure careers and environmental hazards.

Meanwhile, the future of Baby M, as she has been dubbed in court documents, is being determined in a New Jersey courtroom. Even though the decision will not be legally binding in other states, it is considered a precedent-setting case.

Attorney Skoloff said here he wants this case decided on the issue of contract enforcement--”The judge cops out if he decides it on custody and gives visitation. That’s the one thing I hope doesn’t happen.”

The basic issue, he said, is whether the contract entered into by the Sterns and Whitehead is unenforceable on the basis that it is against public policy. Attorneys for the Whiteheads have argued that this is the case. Litigation on this phase of the trial without jury ended Friday and there is a two-week hiatus for further discovery on the custody issue.

The Sterns, said Skoloff, “want total and complete termination of custody rights, parental and visitation rights.” Though William Stern has been granted temporary custody of the child he calls Melissa (the surrogate calls her Sara), Whitehead has been given two two-hour visitations weekly. In view of her earlier flight to Florida with the child for three months, these visitations are closely guarded and on neutral turf.

No matter who “wins” Baby M, both couples have been financially “wiped out,” Skoloff said.

The implications of the trial go far beyond deciding whether a contract between a couple and a surrogate mother is enforceable. The case points up the need for the legal profession to adapt to sweeping social change in a time when long-honored equations no longer add up: In 1987, babies aren’t necessarily a result of a sexual relationship and giving birth doesn’t necessarily have to do with starting a family.

Birth, Ira Lurvey observed here, has traditionally been a somewhat holy concept, a “hit and miss” event. Surrogacy is “so complicated, convoluted,” he said, he wonders if society is equipped to handle it. He pondered whether ground rules would change if the biological father and the biological mother conceived through intercourse rather than artificial insemination. And he wondered if “these strangers will start copulating to get around the law.”

There was a bizarre twist in the case of surrogate mother Nisa Bhimani, a divorced mother of three from Arcadia who in 1981 gave birth to a son-by-contract for a childless New York couple but who subsequently fought to keep that child.

The sperm donor withdrew his paternity-custody suit minutes before it was to be heard in a Pasadena Superior Court after it was learned that his wife was a transsexual who had undergone a sex change operation five years earlier.

Judge Robert M. Olson said, “I am thinking of the child alone and how life has been in the United States for 200 years. It’s damn weird.”

Bhimani, whose husband had killed himself five years before, said on being granted custody of 2-month-old Ricky, “I’m so happy.”

Elizabeth Kane, a Pekin, Ill., housewife who was the first publicly known surrogate mother when in November of 1980 she gave birth to a son for a Louisville couple, insisted at the time that she did it for love, not for the fee of about $10,000.

Several years later, however, she acknowledged in an interview that “when I said goodby to the baby, it broke my heart. I cried for weeks every Sunday because he was born on a Sunday.”

Kane, the pseudonym used by the mother of three, was a pioneer and widely criticized. “My oldest daughter used to come home in tears,” she said, “and ask why do people hate what you are doing?”

A hearing to determine validity of contract is scheduled in San Diego Superior Court in February in the case of a Mexican woman who, for less than $2,000, agreed to serve as a surrogate mother for a Chula Vista couple but who later sued for custody of the infant girl, now 6 months old.

Meanwhile, the surrogate, Alejandra Munoz, 20, of National City has thrice-weekly visitation rights with the child, Lydia Michelle, at the home of the contracting couple, Mario and Nattie Haro.

Munoz’ attorney, Harvey Berman, contends the contract is invalid because Munoz, 19 at the time of the birth and an illegal immigrant, acted under duress and without legal advice of the sort that would be required if the case were an adoption.

When asked what she would do during weekly visits with the child, Munoz said, “Kiss her and hug her a lot.” Haro, for her part, said of the infant, “She did not grow in my stomach, but she grew in my heart.”

Stressing the biological mother’s attachment to the baby, her attorney insisted: “My client does not want the money. She does not want a million dollars.”