Baby M: Old Story but the Legal Issues Remain Unresolved

Surrogate motherhood, seared into the nation’s consciousness by New Jersey’s Baby M case decided last week, looks new.

It isn’t.

Genesis, the first book in the Old Testament, notes that Sarah, unhappy because she had no children, told her husband Abraham, “Behold now, the Lord hath restrained me from bearing: I pray thee, go in unto my maid; it may be that I may obtain children by her.”

Hagar, the Egyptian maid for whom some of the nation’s two-dozen surrogate parent agencies are named, bore Ishmael, whom Sarah raised as her own son.

Only the controversy is new.

Hagar was little more than a chattel, subject to the rule of both her mistress and master. Modern surrogate mothers and fathers, as well as legislators and litigators, want a more certain structure of law to protect the rights of the parents, the children and the public.

Virtually none exists.

Contract Validated

When New Jersey’s Superior Court Judge Harvey R. Sorkow validated the surrogate contract that produced Baby M, awarding sole custody to her father and terminating parental rights of her biological mother last Tuesday, he made his decision in a near vacuum.

Trial judges throughout the country are beginning to struggle with the problem, but so far few appellate courts have established case law and, although nearly half the states have tried or are now trying, none have enacted laws to govern surrogate parenting.

“We will definitely see laws passed. Baby M has really fired up interest in legislation,” said Lori B. Andrews of the American Bar Foundation, research arm of the American Bar Assn., echoing other legal experts.

“Having watched the Baby M soap opera, people have begun to see that deciding these things through litigation is the worst possible approach. It scandalizes the situation and can’t possibly be in the best interest of the child.”

Although the Baby M case was the nation’s first in which parents of a surrogate child asked a court to rule on the validity of a contract, other courts have split over the application of laws forbidding baby-selling--which exist in every state--to agencies that arrange surrogacies.

The Michigan Court of Appeals has ruled that paying a fee for a woman to bear a child is illegal baby-selling. A New York trial court and the Kentucky Supreme Court, the highest court to consider the problem, have said the opposite.

Observers hope that the highly respected New Jersey Supreme Court will bypass the intermediate appellate court and take the Baby M case immediately in order to establish a high court guideline on the validity of surrogate contracts.

But the greater hope is that the Baby M case will prod action by legislatures that have wrestled reluctantly with surrogacy proposals for half a dozen years.

A committee of 16 national experts on legal and moral aspects of reproduction technology that convened in Lansing, Mich., at the request of Michigan legislators last weekend recommended a law banning commercialized surrogacy, arguing that surrogate contracts are contrary to public policy.

Such bans have been proposed previously without success in Michigan and three other states.

In the last six years, 15 other states, including California, have vainly attempted to pass laws legalizing and regulating surrogacy.

Numerous Bills

Now at least 12 jurisdictions are considering more than 20 bills on surrogacy, according to William Pierce of the National Committee for Adoption, which represents 138 nonprofit adoption agencies in 45 states and advocates laws banning surrogate arrangements.

According to his survey and interviews with legislators, the states of Connecticut, Delaware and Maine are considering bills to establish commissions to study the issue; Connecticut, Maryland, Nebraska, New York and Pennsylvania have pending bills to allow surrogacy, and Iowa, Maryland, Missouri, Nebraska, New York and Pennsylvania are considering bills to prohibit it.

California has two bills pending that would permit a surrogate mother to change her mind about relinquishing the child after birth, and the District of Columbia is working on a bill to ban payment--both of which Pierce believes would effectively prohibit surrogacy. Oregon is considering bills with mixed goals.

The process is no easy task, with several sticking points that must be dealt with in proposed laws, including:

- Whether money can be paid to a surrogate mother beyond expenses.

“Our committee said yes,” said Illinois attorney H. Joseph Gitlin, chairman of the ABA Adoption Committee that is working on developing a model surrogacy law. “The initial distinction is that it is services rather than the baby that she is selling.

“We have statutes in all states that say you cannot sell a baby. The reason is that in adoption, a woman becomes pregnant unintentionally and may be tempted for financial reasons to give up her child,” Gitlin said. “But in surrogacy the woman is not pregnant at the time she enters into the agreement. She knows it is a commercial transaction for the purpose of carrying the child.”

But Pierce, of the National Committee on Adoption, said payment of any fee is flat out baby-selling and is contrary to state laws and the anti-slavery 13th Amendment of the Constitution.

“If you can pay a woman $10,000 to turn over the child in surrogacy,” he said, “it is a very short step to say pay $10,000 to turn over your child in adoption.”

Careful Distinction

In between is the careful line drawn by the American Civil Liberties Union and described by ACLU Women’s Rights Project co-chair Toni Cordero:

“If there were truly a contract where you pay for rental of the womb, not contingent on turning over the child, we have no objection. If payment is contingent on turning over the child, that is basically baby-selling.”

- Whether the mother retains parental rights after the birth or forfeits all claims to the child when she signs the pre-conception contract.

The ACLU and others argue that, because of baby-selling laws and the 13th Amendment, no woman can sell her parental rights to her child and, as in adoption laws, must be given 30 days or so following birth to recover her health and make a rational decision about relinquishing those rights.

Surrogacy advocates counter that giving a mother post-birth time to change her mind would unfairly leave the would-be parent couple to the mother’s mercy.

‘Anti-Feminist Idea’

“It is a non-contract if she could change her mind. That doesn’t make sense,” the ABA’s Gitlin said. “There is no way I would enter into a contract not knowing whether the child would be mine. That is an anti-feminist idea. They are saying a woman giving birth to a child is somehow inferior, that her emotions cannot be trusted. It is going back to saying women are idiots, and I refuse to relegate any woman to that.”

- The mother’s constitutional right to control her own body.

Nobody argues strongly that a surrogate mother cannot terminate her own pregnancy, a constitutional interpretation outlined in the 1973 U.S. Supreme Court decision legalizing abortion.

But staunch advocates of surrogacy contracts believe that the would-be parents can also authorize abortion, and more particularly can require the mother to take steps to produce a healthy baby, such as having medical checkups and refraining from smoking and consuming alcohol or caffeine.

Opponents, including the ACLU’s Cordero and her co-chair, Meir Westreich, say no.

“You cannot sell yourself into bondage, or sell or give away basic human rights,” Westreich said. “It is like an employment contract--you may have to pay if you cause damage, but you can walk out of it. The parent couple can discuss health measures with the surrogate, but they cannot bind her. That is just not enforceable under the 13th Amendment.”

- The couple’s First Amendment right to privacy, including the right to procreate.

Those who would ban surrogate parenting argue that that right does not extend to surrogacy.

“Our committee felt that there is a right to seek different reproduction methods, but not a constitutional right,” said Dr. Judianne Densen-Gerber, the lawyer-psychiatrist who convened the Michigan conference last weekend. “We felt the right of privacy is superseded by the right to be free of slavery.”

But Cordero countered that the ACLU “would never urge banning surrogacy, because we recognize that surrogate parenting arrangements are one way of exercising your (First Amendment) procreating rights.”

- The child’s rights.

As in adoption cases, those rights are normally considered by courts and legislators to be the baby’s “best interests,” meaning the right to be supported and cared for, even if he or she is born handicapped.

The ACLU policy would extend that to include the baby’s 13th Amendment right not to be sold, and rights to financial support from all three parents--biological father, his wife who planned to adopt the child, and gestational mother--or even four if a third woman donated the egg.

Arkansas Law

Only one state, Arkansas, has ever passed a law having anything to do with surrogacy, said the American Bar Foundation’s Andrews, who has written a book on surrogate mothers. She described it as “a one-line law” that establishes that the child of an unmarried surrogate mother is legally the child of the would-be mother.

The law also gives courts discretion to place that adoptive mother’s name on a substitute birth certificate, but does not say they must do it.

Pierce conceded that the Arkansas statute “is the only damn law that even mentions the word” but insisted that it does not qualify as a surrogate parenting law.

“To legalize surrogacy,” he said, “you must have three things--wipe out the current artificial insemination by donor laws that say that the husband of the pregnant woman is presumed to be the father; provide that the birth certificate can list biological father and adoptive mother as parents, and repeal baby-selling laws. The Arkansas statute doesn’t do it.”

Proposed laws have ranged from simplistic proposals in Alaska and Rhode Island that would have simply stated that surrogate contracts are legally enforceable, to detailed ones such as California’s 1982 bill that provided for a step-by-step approach akin to adoption, including court approval prior to a surrogate contract.

Moderate approaches such as California’s 1985 version, developed by the State Bar and passed by the Assembly only to die on the Senate floor, have obviated prior court approval and adoption-type procedures but carefully regulated screening, medical care and other conduct of the surrogate mother.

Unpalatable Bills

No bills so far have been politically palatable enough for passage because of the small constituency demanding laws and the large risk of doing something considered unusual. The number of children already born under surrogate arrangements is uncertain, but most estimates total 500 to 600 nationally, with 100 in New York and at least 69 in the Los Angeles area.

“There is no up side for legislators to push for these bills because infertile couples do not get together and form PACs (fund-raising political action committees),” said William Handel, attorney and director of Los Angeles’ Center for Surrogate Parenting Inc., who added that legislative regulation is “desperately needed” to prevent abuses by some surrogate brokers.

“All our bill said was that this is going on and we need to regulate it to protect the parties,” said attorney Judy Harper, California State Bar legislative representative who helped draft the 1985 legislation. “But the climate has just not been right. We had the ACLU saying it is baby-selling, and conservatives saying it’s ‘Brave-New-World’ stuff that goes against the Christian ethic.”

The State Bar has decided not to press for passage of a new bill, she said. “My gut feeling is until we have some horror stories in this state, it is not going anywhere.”

Freshman Assemblyman Richard Longshore (R-Garden Grove), unaware of failed past efforts on surrogacy bills and “real moved” by stories on the Baby M case, said he believes that the Baby M court battle has made legislators more receptive to surrogacy legislation this year.

2 Bills Introduced

He recently introduced two companion bills in Sacramento that would follow adoption laws by allowing a surrogate mother to retain parental rights to her child for a period after birth, relinquishing them only in court, and would nullify any contract that controlled her behavior during pregnancy.

Surrogacy advocates believe that the Baby M case has also ripened possibilities for passage of what they consider the best bill now before legislatures, a New York proposal by state Senate Deputy Majority Leader John R. Dunne.

“If one state passes a comprehensive act, it is always easier to be the second,” said the American Bar Foundation’s Andrews. “You can defer a lot of the pressure.”

Dunne, a Catholic, believes that the recent Vatican recommendation that surrogacy be banned will make the going difficult--but not impossible--for his bill. The proposed legislation provides that a surrogate mother surrender her rights to the child when she signs the contract, allowing it to become the “legitimate, natural child” of the biological father and his wife at birth, and requires judicial approval of both the contract and “just and reasonable fees” prior to conception.

“I can’t say there is a great constituency out there demanding something be done. It is a very, very small fraction of the community,” said Dunne, who introduced his bill after a judge complained that he had to rule in surrogacy cases with no case or statutory law to guide him.

“But the Baby M case was a dramatic result of not knowing what the ground rules are. So that precipitated it this year. ‘Joisey,’ as we say, is just across the river,” Dunne said.

Ironically, the sponsor of a 2-year-old bill to regulate surrogacy in New Jersey, where the Baby M case occurred, thinks that although Judge Sorkow’s ruling will prompt bills both to outlaw and legalize surrogacy, the only passable legislation there this year will be a bill to establish a study commission. The Vatican message urging a ban on surrogacy, he said, would make anything else difficult in the heavily Catholic New Jersey Legislature in this election year.

“This will be another example, probably, where courts act in the absence of the Legislature. It is just too controversial to move quickly through the Legislature,” New Jersey Sen. Donald de Francesco said. “It is not something politicians want to take a look at if they don’t have to.”

Constitutional Question

Just how to draft surrogacy legislation--for or against--that passes constitutional muster has baffled legal experts as well as legislators.

Sacramento Deputy County Counsel Reynaldo Carboni, chairman of the State Bar Adoptions Committee, said after the bar’s ill-fated attempt with the 1985 bill, bar leaders continued to debate the matter but have virtually given up trying to suggest a law.

“The consensus of our committee is that it is just too difficult an area to reach consensus on,” Carboni said.

The ACLU of Southern California, after more than two years of debate, last month adopted a “policy” declaring that a surrogate mother cannot contract away her constitutional rights to control her own body or contract to sell or give away her child.

The policy also states that, while payment for pregnancy services is permissible, conditioning payment of any fee on turning over a live baby is illegal baby-selling.

But even ACLU officials disagree on whether new laws are necessary.

No Laws Needed

Cordero of the ACLU Women’s Rights Project said no laws are necessary because constitutional rights are enough.

Westreich, her co-chair who is drafting the ACLU’s friend-of-the-court brief on behalf of surrogate mother Mary Beth Whitehead in the Baby M appeal, said laws should be enacted to “clarify” the constitutional rights.

The Los Angeles County Bar Assn.’s Bioethics Committee has never tried to suggest a perfect law because its members cannot agree on whether any legislation is necessary or what it should say.

The Adoption Committee of the ABA Section on Family Law has been working on a model surrogacy law for nearly two years and does not expect to present a completed version to the full ABA until 1988.

However difficult or long the process, most legal observers are convinced that laws will be passed governing surrogate parenting. But not everyone believes that will forestall more Baby M trials.

“People like to say that if we had good legislation, we could avoid more Baby M cases, but we felt that wasn’t the situation at all,” said Vicki Michel, co-chair of the Los Angeles County Bar Assn.’s Bioethics Committee.

“If there were truly a custody dispute, it would not be resolved by just legitimizing the contract or saying a contract existed. None of these bills should be passed without proper public debate. They shouldn’t just slip by and they shouldn’t be oversimplified. Complexity is the key word.”

And, although science has, so far, outdistanced law in surrogacy parenting, many legal experts quietly want science to sprint even faster.

“My hope,” Michel said, “is that reproductive technology improves so that alternatives materialize for infertile couples and the need for surrogacy just goes away.”