Baby M Meets Solomon's Sword

By Richard Lacayo

Approaching the case of Baby M the New Jersey Supreme Court might have wished for the sword of Solomon -- not to divide the child, but to cut through the Gordian thicket of paradox, bad faith and conflicting feelings that has surrounded the matter from the start. As it turned out, in a unanimous ruling last week the court sliced the issue in a way that gave important concessions to both the parents, but cut to the quick the practice of surrogacy for pay.

The seven justices voided the 1985 contract by which Biochemist William Stern and his pediatrician wife Elizabeth had arranged to pay Mary Beth Whitehead $10,000 to bear a child fathered by him through artificial insemination. Under state adoption law and public policy, the court concluded, paying women to be surrogate mothers was "illegal, perhaps criminal, and potentially degrading to women." Wrote Chief Justice Robert Wilentz: "There are, in a civilized society, some things that money cannot buy."

Even so, the justices gave custody of 22-month-old Melissa Elizabeth to her father. The Sterns, the court decided, could provide a more stable home: "Their household and their personalities promise a much more likely foundation for Melissa to grow and thrive." Last November Whitehead divorced her first husband to marry Dean Gould, and the couple is now expecting a child of their own. But the justices also restored the parental rights of Whitehead- Gould, which the trial judge had terminated, and invalidated last year's adoption of Melissa by Elizabeth Stern. By instructing a lower court to decide the question of Whitehead-Gould's visitation rights, they also opened the way * for her to maintain contact with her daughter for many years to come.

The court said surrogate arrangements would not be illegal if the mother were not paid and if the agreement allowed her to change her mind after the birth of the child. But in practice that concession may not amount to much. How many women would be likely to bear a child without compensation? And how many infertile couples would be as willing to go through the process, faced with the possibility that the mother might renege? Though the ruling applies only to New Jersey, that state's supreme court is one of the nation's most influential, especially in matters of bioethics. "This ruling deals a death blow" to the practice, says Jeremy Rifkin of the National Coalition Against Surrogacy. About 27 states have considered legislation on surrogacy, ranging from regulation to outright prohibition. Last July Louisiana passed a law voiding surrogate contracts, and last week the Nebraska legislature voted to do the same.

Supporters of surrogacy have managed some lesser court victories in the past. Two years ago, for example, the Kentucky Supreme Court ruled that surrogate arrangements in themselves did not violate that state's public policy. "We're getting different decisions in different jurisdictions," says Michigan Attorney Noel Keane, one of the nation's chief surrogacy brokers and the man who helped arrange the birth of Baby M.

States that legalize the practice could become magnets for infertile couples from other states where commercial surrogacy is banned. And where the practice is prohibited entirely, say some, it will merely be driven underground. "There is so much infertility," observes Feminist Attorney Lynne Gold- Bikin. "Desperate people will resort to desperate methods."

Meanwhile, the once desperate people in the Baby M case are likely to find themselves tied together for some time by the common bond of the child they all claim. Whitehead-Gould declared herself "delighted to know my relationship with my daughter will continue for the rest of our lives." That prospect left the Sterns considerably less than delighted. They plan to try to block or limit the visits.

With reporting by Jeanne McDowell/New York