Beyond Solomon: the ‘Tragic Choice’ Cases

The Baby M trial in New Jersey is a compelling human conflict that has been mislabeled in the media. This contest between a biological mother who gave birth to a child under a surrogate-parenting contract and the child’s biological father has been variously called a clash between contractual and biological interests, a class war between rich and poor, a harbinger of problems generated by brave new technology. More disturbing, the media have developed something close to consensus on two points: that the Baby M problem is a new one, and that this case is an important opportunity to set a precedent. Not so.

The basic problem is at least as old as modern adoption; the fact of the male claimant’s biological paternity in the surrogate case is not a decisive distinction. Moreover, rather than relying on the unpredictable legal stand that governs the Baby M case--calculating the best interests of the child--the best solution available is a set of clear rules for all adoptions.

The surrogate-parent conflict is part of a tradition of “tragic choice” competitions between birth mothers and adoptive parents for the custody of infants. Classically, the birth mother agrees to release the child for adoption by written consent, either before birth or shortly after birth in the throes of postpartum confusion. The child is physically placed with an adoptive family, but the natural mother attempts to revoke her consent because of fraud, coercion, duress or inadequate counseling.

The hallmark of these cases is that both the mother and the adoptive parents sincerely love the child, and neither side deserves to lose custody. Thus a court forced to choose between these alternatives cannot arrive at the “right” answer. Judges then resort to language about the best interests of the child--an unpredictable calculus that can lead to either side’s getting custody based on the same facts.

These problems are not unique to the surrogate-parent arrangement. In Baby M, the attachment of William and Elizabeth Stern to this child after months of living with her would have been just as strong, and worthy of the same legal recognition, even if William Stern were not the biological father.

The only time biological paternity might make a difference is when the natural mother refuses ever to give up the child and the father sues to obtain custody without any history of living with the child as a parent. Courts would and should reject this contractual claim. But once an adoptive family has lived with and loved a particular child, claims of both the father and the new mother are every bit as strong as those of the birth mother. This is the problem in Baby M. Here even Solomonic strategies will fail. What to do? The best approach is a set of clear rules that shape and modify the expectations of adoptive parents. Rules can make a birth mother’s consent revocable, without giving reasons, for 30 days after she gives up a child. But these rules could also make her consent irrevocable thereafter. This approach is superior to making any written consent irrevocable at the time it is given, because the period of birth is unusually stressful and no consent to adoption can be truly informed without the experience of giving birth and its emotional effects.

The receiving parents could modify their expectations during the 30-day period. Most receiving families would consider this system a fair trade for the security that would come after the 30 days had elapsed.

This kind of clear rule seems the least painful arrangement that can be made for surrogate parents. Whether the male’s biological paternity should lead to paternal visitation when the birth mother retains custody is not clear. If another surrogate relationship can be contracted, I would oppose such a paternal right.

The largest puzzle in the Baby M debate is that critics are using the conflict as a basis to ban surrogate-parent arrangements. The potential for custody conflicts with the birth mother exists throughout adoption. It should provide no basis for special hostility to surrogate parenting. Payments to surrogate mothers may raise legitimate concerns. But the solution is the regulation of payments, rather than a ban.

Two other arguments against surrogate parenting are both puritanical and discriminatory. To suggest that parents who want a surrogate birth should instead be coerced into the market for hard-to-place adoptive children is a kind of biological opportunism that public policy should avoid. Why should we single out couples with a non-fertile female as a special target? Why not instead require couples wishing a third or fourth natural child to express their wishes in the adoption market?

Even more unattractive is the suggestion that the desire for a biological link with children through surrogate birth is an ego trip unworthy of legal support. Some ask why these prospective fathers should be preoccupied with mere biology. For the same reason that most of the rest of us are. The preference for adopting a genetic stranger may be a modern virtue, but not one that we should seek to force on a disadvantaged group of couples that has been selected by biologic chance.