A Setback for Surrogate Parenting?

The mood at the Center for Surrogate Parenting Inc. in Beverly Hills was defiant Wednesday in the wake of the New Jersey Supreme Court’s ruling outlawing commercial surrogate mother contracts in that state.

“Couples (who want children) are still coming to us and it’s not going to stop,” said William Handel, the center’s director and an activist attorney in the controversial fields of surrogate parenting and reproductive technologies. Handel added that his organization was “delighted” that the court allowed William Stern, the child’s father, to retain custody of Baby M, now named Melissa Elizabeth Stern.

In its widely anticipated decision on the celebrated case, the New Jersey court unanimously ruled that “Our law prohibits paying or accepting money in connection with any placement of a child for adoption” and that “Baby selling potentially results in the exploitation of all parties involved.”

‘Illegal, Perhaps Criminal’

The court also said that hiring a surrogate mother amounts to illegal “baby selling” and that payment in a surrogacy contract is “illegal and perhaps criminal.”

Although they awarded custody to the 22-month-old child’s biological father, the seven justices also held that the child’s mother, Mary Beth Whitehead-Gould, could not be denied the right to visit her daughter.

The case began when Whitehead-Gould, then known as Mary Beth Whitehead, reneged on a $10,000 contract in which she agreed to be artificially inseminated with William Stern’s sperm and turn the baby over to him.

The high court’s decision overturned a lower-court ruling last March. Then Judge Harvey Sorkow upheld the contract and denied the natural mother all parental rights.

The Beverly Hills center, which has arranged the births of 65 surrogate children without a surrogate mother backing out of the arrangement, has always acted on the assumption that surrogate contracts “may not be enforceable,” Handel said.

The center, one of two surrogate centers in the Los Angeles area, carefully screens potential surrogate mothers for their psychological and medical suitability, he added. For that reason, the attorney explained, he does not anticipate having to modify operations or close the center because of the precedent-setting court ruling.

Handel, acting for the National Assn. of Surrogate Mothers, filed what apparently was the only brief asking the New Jersey Supreme Court to uphold the lower court’s ruling in favor of the contract.

Meanwhile, Jeremy Rifkin, president of the Foundation on Economic Trends in Washington, which examines issues related to new technologies, was taking the opposite view.

The ruling is “the beginning of the end of commercial surrogacy,” said Rifkin, whose group joined with well-known feminists to file a friend of the court brief in the case. “We got exactly what we wanted,” Rifkin said, noting that he was so confident of the decision that he had written a press release hailing the ruling even before it was announced.

National Significance

Rifkin argued that the decision by the generally respected New Jersey high court has national significance. His group planned to mail overnight letters to the attorney generals of all 50 states requesting that they shut down commercial surrogacy centers in their jurisdictions, he said.

Informed of Rifkin’s plan, Handel was skeptical. “I think he’s going to have a hard time doing that . . . I’m not concerned about that at all,” he said, referring to the fact that the New Jersey decision is not binding in California.

Nina Kellogg, a marriage and family counselor who runs the Surrogate Parent Program of Los Angeles, predicted that prohibiting programs like hers would force the process underground.

“I feel sad that (surrogate parenting may) not be given a chance to work. It seems to work for some.”

Among surrogate mothers reaction also was split.

Elizabeth Kane, the first surrogate mother in this country and now an opponent of commercial surrogate mothering, said the court was “recognizing us as mothers, not just breeding machines” and that “you have the right to love your own child and we’re not going to take it away from you . . . you cannot contract for love and emotion.”

Kane, a resident of Appleton, Wis., said she delivered a surrogate son on Nov. 9, 1980 and that “I haven’t seen him since he was two days old.” She is now seeking the right to see the 7-year-old boy, Kane said. In Beverly Hills at the Center for Surrogate Parenting, a 28-year-old surrogate mother identified only as Lori said, “the fact they ruled the contract void surprised me.” Lori, currently pregnant with her second surrogate child, also said she was opposed to Whitehead-Gould visiting her daughter.

“If she (Whitehead-Gould) really cared about that baby and loved that baby, she would let it go,” Lori said.