Death without dignity for commercial surrogacy: the case of Baby M.

Death Without Dignity for Commercial Surrogacy: The Case of Baby M Both advocates and opponents of "surrogate motherhood" have eagerly awaited the opinion of the New Jersey Supreme Court in the case of Baby M. [1] Because the opinion was unanimous and written by the Chief Justice, like the decision involving Karen Ann Quinlan,[2] its influence is likely to be even greater than originally anticipated. The decision in Baby M will set the legal agenda for future discussion of surrogate motherhood. This highly publicized case involves a custody dispute between a father and a mother. The father, William Stern, had contracted with the mother, Mary Beth Whitehead, to bear him a child through artificial insemination. The contract, among other things, provided that she would receive a fee of $10,000 upon terminating her parental rights and giving up the child to him. A lower court held that the contract was enforceable; and that custody of the child, known as "Baby M," should be awarded to Mr. Stern on the basis of the child's best interests. In addition, the lower court terminated Mrs. Whitehead's parental rights, and granted Elizabeth Stern's request to adopt Baby M. Mrs. Whitehead appealed, asking the court to determine "surrogacy contracts" unenforceable and void, to reinstate her parental rights, and to grant her custody of Baby M. The opinion of the lower court reflected bias towards favoring the rich over the poor, and was "filled with contradictions, double-standards, inapt analogies and unsupported conclusions."[3] The Supreme Court's unanimous opinion remedies many of these flaws by invalidating surrogate contracts, applying existing law to determine custody, and restoring Mrs. Whitehead's parental rights. Surrogacy Terminology The most powerful and well-reasoned portions of the opinion deal with "surrogacy contracts." The court is not impressed by attempts to sanitize the surrogacy procedure by mislabeling it. It notes simply, "the natural mother [is] inappropriately called the 'surrogate mother.'" Mary Beth Whitehead is not and was not a "surrogate mother"; she is Baby M's natural mother. The opinion also highlights the deceptive nature of the claim by supporters of surrogacy that the practice is family building. The court clearly understands that this method of reproduction can help one family only at the expense of another. The dissolution of the marriage of the natural mother is not necessary to the success of the contract, but a severing of the mother-child bond is: the "surrogate mother" arrangement creates a family bond only by destroying a family bond. The court also recognizes that the common assertion that surrogacy involves new science and medical technology is nonsense. The only technology involved is donor insemination, an already well-established procedure. The novelty in the method is legal: a contract drafted by lawyers to define the legal relationships between a mother, a father, and their child in an attempt to circumvent state laws regarding custody, adoption, termination of parental rights, and baby selling. Fooled by broker publicity touting the innovative and beneficial aspects of such arrangements, Superior Court judge Harvey R. Sorkow saw surrogacy as so modern and marvelous that it could not possibly be subsumed under any existing laws. The Supreme Court saw through surrogacy and focused on the contract's reality and the body of applicable existing law. The Surrogacy Contract The court determined surrogate contracts invalid because they conflict with (a) statutes that prohibit the payment of money to a woman to induce her to give her child up for adoption; (b) the state's adoption laws that permit irrevocable surrender of a child only after birth; and (c) laws requiring proof of abandonment or unfitness prior to termination of parental rights or adoption without consent. Like most states, New Jersey law prohibits paying or accepting money in connection with any placement of a child for adoption (fees to an approved nonprofit entity and certain childbirth expenses are excepted). …