Surrogate Motherhood: A Wrenching Test of Ethics : Infertility: Appeals in the Anna Johnson case will refocus attention on an essentially unregulated practice.

The couple tried in vain to conceive a child. With their deep need for an heir unanswered, they made an anguished decision: The man turned to another woman to bear his baby.

The scenario could have been lifted from stacks of recent newspaper clippings describing the pain of infertility and the choice to employ a surrogate mother. But this story is the one that predated all the others: It’s from Genesis 16.

When Abraham’s wife, Sarah, failed to become pregnant, she begged him to have sex with her Egyptian handmaiden, Hagar, so the couple could become parents. Hagar bore them a son, Ishmael.

Today, many scientific revolutions later, laboratories have replaced bedrooms as the site of procreation for many infertile couples, and surrogate mothers conceive without sexual intimacy.

But despite the joy a baby can bring, the process still produces controversy and heartbreak, marking the chasm that can develop when society has not yet learned to grapple with the newfangled dilemmas spawned by its technology.

As the recent Orange County case of surrogate mother Anna L. Johnson winds its way through the appeals process, observers contemplate the future of surrogate motherhood, wondering whether it will endure into the 21st Century as a viable option for the one in 12 U.S. couples who are infertile.

Scholars, doctors, lawmakers and others note that paid childbearing arrangements are widely criticized as a form of baby-selling, or as degrading and exploitative of women, and that such contracts seem particularly vulnerable to flammable breaches that hurt all parties. And many observe that surrogates themselves also suffer from public prejudice.

Can surrogate parenthood survive? And should it?

Surrogacy burst onto the national scene in 1987, when Mary Beth Whitehead, a New Jersey woman whose own egg was inseminated with the sperm of William Stern, reneged on her contract and fought unsuccessfully to keep Baby M, the daughter she bore for Stern and his wife.

The controversy was renewed last month, when an Orange County judge ruled that Johnson, who delivered a baby made from another couple’s sperm and egg, had no legal rights to the child. Dozens of other surrogacy disputes have reached courts around the country.

Experts estimate that about 4,000 U.S. babies have been born through “traditional” surrogacy, in which a woman is inseminated with the sperm of the male partner of the couple hiring her. In “gestational” surrogacy, the woman is implanted with the infertile couple’s embryo, so she has no genetic relationship to the child she carries. About 80 children have been born through this newer method.

Many critics of surrogate motherhood contend that it degrades women by converting them into reproductive vessels and threatens to create a “breeder class” of poor and minority women, bearing babies for the rich. New York author and feminist Phyllis Chesler calls it “strip-mining the fertility of the poor.”

Andrew Kimbrell, attorney for the National Coalition Against Surrogacy, said poor and minority women are especially vulnerable to the lure of paid surrogacy arrangements.

“You are not allowed to work for less money on account of your race or gender,” he said. “We don’t permit that as a civilized society, thank God. And for the same reasons, you shouldn’t be allowed to have money induce you to give up your child, or have a contract bind you to that.”

Judith Gerberg, a New York psychotherapist who focuses on women and their self-image, said it insults and degrades women “to tell them that a baby they carried for nine months isn’t theirs and that they don’t count.” Many feminists, including writers Gloria Steinem and Betty Friedan, share that view.

But others, such as Linda Joplin, state coordinator of the California chapter of the National Organization for Women, disagree, contending that such an attitude implies that women can’t make their own decisions responsibly.

“A woman has a fundamental right to control her body, and we support her right to be a surrogate if that’s what she chooses,” Joplin said. “The who-will-protect-women attitude sets up women to be second-class citizens.”

Kathy Stovall-Gomez, 30, who bore twins for Glenn and Linda Merkel of Massachusetts two years ago, and is now pregnant with the second of her own two children, resents the idea that surrogates are exploited.

Critics “have some nerve to think I’m so stupid I can’t make up my mind for myself,” she said.

“I wanted to share my fertility with someone,” she said. “It was too wonderful to keep all to myself. It made me feel like a heroine, like I saved a child from a burning building. If I didn’t risk my body, Glenn and Linda would never have a child.”

Stovall-Gomez, who operates a day-care center in her West Los Angeles home, said caring for other couples’ children in her uterus ought to be just as acceptable--and worthy of monetary compensation--as caring for them in her living room.

Linda Merkel, who found Stovall-Gomez through the Center for Surrogate Parenting in Beverly Hills, said she suspects that the surrogates who feel exploited were not properly counseled and clear about their motives.

“Perhaps they exploited themselves,” Merkel said.

But for some surrogates, it’s not that simple. A Northern California woman who wants to be identified only by her first name said she regrets every day that she gave up the child she bore for another couple 18 months ago.

Donna, 27, said being a surrogate appealed to her need to help others, built self-esteem and gave “my life meaning.” But she now realizes that she was too emotionally fragile for it and believes that the process should be outlawed.

Even the staunchest supporters of surrogacy said it must be regulated to require extensive screening and counseling. The Center for Surrogate Parenting, for instance, has a long list of rigorous requirements for its surrogates, including economic stability (to guard against a purely monetary motive) and psychological and medical soundness.

Many doctors who perform the procedures agree to do so only if couples are medically incapable of bearing children. One such physician, Dr. Joel Batzofin, co-director of the Huntington Reproductive Center in Pasadena, said that requirement guards against a widely feared outcome: that rich couples could hire surrogates to spare themselves the inconvenience of pregnancy and childbirth.

Still, surrogacy is essentially unregulated in most areas of the country. California, like most states, has no law on the topic. Lori B. Andrews, an expert on reproductive law at the American Bar Foundation, said 10 states have made some kinds of surrogate contracts unenforceable in court, including two that have also outlawed surrogacy for pay. Three others have laws permitting and regulating some forms of the practice, she said.

Susan M. Wolf--an attorney at the Hastings Center, a medical ethics research institute in Briarcliff Manor, N.Y.--said she would be surprised if all states barred surrogate contracts because “there is no clear consensus on the issue.”

Even California lawmakers who favor laws condoning surrogacy admit that it will be a tough if not impossible task to win support in Sacramento. Assembly Speaker Pro Tem Mike Roos (D-Los Angeles) sponsored ill-fated legislation in 1982 to regulate surrogacy but said he would not carry such a measure again because he senses even more opposition to the idea now.

“It was an uphill battle to convince my colleagues that (surrogacy) is never going to go away, so we’d better deal with it,” Roos said.

Sen. Diane Watson (D-Los Angeles) acknowledged that there is “not a majority” of legislators in favor of giving surrogacy their legal blessing. But a bipartisan committee established by a measure she introduced will begin exploring the issue during this legislative session, Watson said.

But Harold J. Cassidy, the New Jersey attorney who represented Whitehead, said he believes that surrogacy will--and should--ultimately be prohibited across the country.

“It’s a radical departure from the form of family our culture has endorsed,” he said. “It’s inherently incompatible with existing laws, with all the policies underlying those laws and what most people feel is moral.

“Surrogacy has as its central concept the destruction of the mother-child relationship. How can a society endorse that?”

Infertile couples and the doctors who assist them tend to believe that while surrogate motherhood may have its pitfalls, it offers some couples the only hope of having children who are genetically related to them.

Batzofin of Pasadena’s Huntington Reproductive Center said women who had to have their uteruses removed or who have severe heart and kidney problems cannot carry children, but their ovaries still produce eggs. Such women should not be denied the opportunity to have a genetically related child with their mates by way of a surrogate, he said.

For some, that reasoning misses the point. Angela R. Holder, clinical professor of pediatrics and law at Yale University’s School of Medicine, said the emphasis on having a genetically related child reveals an unfortunate societal view of children.

“People want babies to satisfy their selfish needs, as hostages to fortune, to carry on their names,” she said.

Holder opposes legalized surrogate contracts because she believes that they turn babies into commodities “by promising them and paying for them, like cars.”

Rather than engaging in surrogacy to create new life, more couples ought to adopt needy children, she said.

The government should also help subsidize research into other solutions to infertility, Holder said.

Nadine Taub, a professor who specializes in reproductive law at Rutgers University’s law school, said infertile couples are “torturing themselves” to conform to the traditional stereotype of parents with genetically related children.

“We are failing to explore other alternatives of family that would broaden our minds and enrich our relationships,” Taub said. “We need to maximize our options for love.”

Although Taub supports surrogacy as one option, she advocates that more infertile couples consider forming other kinds of family bonds with children, such as adoption or “honorary kin” relationships, in which unrelated adults such as close friends help rear a child.

Chesler, the New York author, said an increasing reliance on surrogacy ignores other problems that need solving. She suggested devoting more resources to replacing birth control methods such as the intrauterine device, which can lead to infertility, and to solving workplace dilemmas that pressure women to delay childbearing until their less-fertile years.

Some view surrogacy as particularly risky emotionally, because the contracting couple is vulnerable to a surrogate’s change of heart, so they wonder whether the practice will ever flourish.

But Dr. Richard Levin, who runs Surrogate Parenting Associates Inc. in Louisville, Ky., said marriage and adoption are much riskier than being involved in a surrogate contract.

“Marriage itself has a high failure rate,” Levin said. “A married woman can walk away pregnant. Adoption has just as much emotional risk. A couple gets a kid, then loses it because the birth mother asserts her right to revoke consent, or a court finds the natural father wasn’t notified properly. These are the risks of life.”

Many detect a public prejudice against surrogate mothers. Chesler said the notion that a woman can contract to have a baby in order to surrender it threatens people’s belief that while men might not be counted on to “stick around” to care for children, women always will.

Taub and Andrews both said women who manage to surrender their surrogate babies without feeling much conflict topple society’s desire to believe that women are deeply and equally attached to each child they bear.

“There is a romance to motherhood that we want to keep,” said Taub of Rutgers. “We want to pretend that it’s love, not just work.”

Marty Sochet, who was the staff psychologist at the now-defunct Center for Reproductive Alternatives of Northern California, said he suspects that many people condemn surrogates as morally suspect.

“When a woman gives up something as sacred as a baby that’s been in her womb, and she conceived that baby with the intent to give it up, the suspicion is that these women are prostituting themselves for money,” he said.

But Levin said he believes that the negative attitude stems not from the act of surrogacy itself, but from any effort to renege on the contract and keep the baby.

“It’s because she welshed on the deal,” he said. “People don’t like a welsher, and even more, someone who promised a baby to a couple trying so hard to have one and then backed out.”

Wolf of the Hastings Center predicted that some couples who have heard the painful accounts of surrogates trying to keep their babies will be “appropriately discouraged” from choosing surrogacy. The publicity could also help screen potential surrogates by making them more aware of the emotional risks involved, Wolf said.

But many sound the alarm of inevitability: Whatever the problems of surrogacy, they say, the tide of infertile couples desiring genetically related children will mount, and they will turn to surrogacy as their only option.

James B. Boskey, a professor at Seton Hall University Law School in Newark, N.J., and a specialist on parental rights, said surrogacy poses all kinds of chilling ethical and legal dilemmas, such as what to do if the contracting parents die. Is the surrogate then obligated to keep a child she never intended to rear and that might not even be genetically related to her?

The questions go on: What happens if the contracting parents back out when they learn that their child has a severe deformity? And there is the persistent question, as in the Anna Johnson case, of whom to call parents: those who physically bear the children or those who donate genes to produce them?

Uncharted as those waters might be, Boskey said, avoiding them is not a solution.

“Backing away will only hurt us,” he said. “This is happening and will continue to happen. The best thing we can do is get ready for it and try to set it up so fewer people get hurt.”