Baby M. --

By Roger Rosenblatt

Regardless of what the judge may decide this week in the Baby M. surrogate- mother trial in New Jersey, the case bequeaths a straightforward question that ought to be answered before the next such trial proves necessary: Are there any ethical limits on what one person may pay another to do? It is a question that rarely arises in the world of normal commerce, even in the modern service economy (of which the contract drawn between William Stern and Mary Beth Whitehead for her to bear his baby may stand as the oddest example). Problems of conscience do not crop up when you pay someone to deliver your paper or your pizza, or to answer your phone. Something is sought, someone is compensated, and if the bargain is just, so seem the ethics.

But the bargain struck in the Baby M. case seems to have been wrongheaded from the start because it involved a set of emotions, mainly on the part of Whitehead but Stern's as well, that were either unanticipated or uncomprehended.

On the surface, Whitehead was paid to incubate another family's child. In fact, she was paid to experience maternal love, the forced cessation of that love, and a whole range of feelings in the process that are not ordinarily put up for sale. Those emotions, not Baby M., were the real, if hidden commodity in the transaction. And the transaction fell through because neither buyer nor seller had a grasp of the commodity in the first place.

The Baby M. case may be unique in the buying and selling of emotions, but there are other arrangements that come close and thus may illustrate the case's uniqueness by contrast. The business of prostitution offers the trappings of emotions without the genuine article, and perhaps it has endured for the reason that it touches all parts of the body but the heart. The practice of hiring substitute soldiers to take one's place in the military, common to the armies of Napoleon, Washington and the Czars, theoretically involved a transfer of patriotism. But patriotism proved untransferable. Ranks were filled with the poor who needed the pay or mere mercenaries, not citizens inspired with love of country. Armies suffered; the practice stopped.

Up into the 19th century the emotions of parenthood were hypothetically involved when children were abandoned to baby farms, workhouses and, most frequently, to wet nurses, who assumed the duties of motherhood for two to five years of a child's life. In Dickensian realities, the only emotion expended by institutions like workhouses was greed. The relationship that probably comes closest to the Baby M. case was that between a governess and her charges, whom she was technically hired to tutor and discipline, but for whom, more often than not, she provided tenderness and affection as well. Rochester paid Jane Eyre to love his child for him.

Whitehead's employment was the opposite of Jane Eyre's in that she was engaged not to nurture a growing child but simply to produce the entity so that her employer might enjoy the nurturing. Curiously, her work was not unlike a substitute soldier's, since it involved a potential risk of life for pay and provided a service to enhance a collective (a family instead of a country) of which she could not feel a part. Purely in terms of fair labor practices, her provision of nearly a year's work for $10,000 raises an issue of equity. But the real issue lies in the nature of the service; and seeing the mess where their bargain has lead, one wonders if Stern or Whitehead even considered consequences that in hindsight seem inevitable.

Picture Whitehead at the outset of the bargain. She has a body to sell or to rent, a mobile incubator, and she could use the money. She weighs benefits against discomforts, and she goes ahead with the deal.

What she does not take into account is that sudden surge of delight in the middle of the night that every pregnant woman knows when the baby swivels, or the depression brought on by the puffiness in her face, or any of the temperamental swings that arc throughout the pregnancy. She does not take her dreams or reveries into account, her imagining what the baby will look like or grow up to be. Most acutely, she fails to anticipate that onrush of inexpressible satisfaction when the baby is laid across her breast in the delivery room. For all such moments she was paid a fee, yet her reactions not only lie outside the business deal but are shadowed by that deal, as if her instincts had been hawked in the marketplace.

Picture Stern at the outset of the bargain. He and his wife want a baby, and here is the clean, modern, technologically miraculous way to get one. What he does not take into account is that he is engaging someone to feel sensations on behalf of him and his wife that properly belong only to him and his wife. What seems so easy mechanically turns out to be an impossibility, yet the sanctioning by contract obfuscates the reality. Instead of a simple deal, he has swung a deal whose complications are infinite, and infinitely surprising; they are not in anyone's control.

For a deal like that, no terms make sense. They are bound to be violated (as Whitehead wound up violating them) because they apply to a realm of human conduct that is biological, erratic and deeply mysterious. If Whitehead had volunteered her pregnancy as an act of generosity to the Sterns, the matter would have involved the same ambiguities, puzzlement and pain. Money made matters considerably more difficult, since money imposed a legal cast on a service not reasonably regulated by laws, not reasonably regulated at all; but all such bargains are unwise, and when they work, more is owed to luck than contracts.

In a way, neither Stern nor Whitehead had a claim to the service they were dealing with, any more than Faust had a claim to the soul he dealt the Devil. Stern is certainly not the Devil, and Baby M. is not Whitehead's soul. But the emotions that were being traded have a soul-like sanctity in the sense that they belong to the mysteries of the species and are commonly shared. This is what the Vatican suggested when it recently condemned all artificial practices regarding birth, and one does not have to agree with that blanket condemnation to appreciate its basis. Whatever Stern and Whitehead thought their pact was about, they were trafficking in goods too elusive to package and too universal for personal property. What you do not own, you cannot sell.