****ANOTHER POST TO MAKE YOU THINK****

[Arkana]

As most of you who have read my posts on this subject, I'm taking Bioethics this semester at Providence College, and my prof is a nice guy, but he has the unfortunate quality of being a conservative Catholic anti-choicer. Anyway, this week's topic is surrogate motherhood--not the most hot-button of issues, but it makes for good reading anyway.

Our discussion today was on the case of "Baby M"--one of the most pivotal rulings on the subject.

The case of Baby M is as follows:

--The Stern family, William and Elizabeth, want to have a child, but Elizabeth has MS and does not want to go through pregnancy and the risk associated with having MS and being pregnant.

--They sign a commercial surrogacy argument with a surrogate mother, Mary Beth Whitehead. Whitehead agreed, for a fee of $10000, that she would be artificially inseminated with William Stern's sperm and bear a child, which she would give to the Sterns and which would be adopted by Elizabeth Stern. Whitehead was married and had two kids at the time.

--Whitehead became pregnant, and Baby M was born March 27, 1986. Upon giving birth, Whitehead realized she did not want to part with the child, but she turned it over nonetheless to the Sterns on March 30.

--The next day, emotional turmoil compelled her to beg the Sterns to let her keep the baby for another week. Reluctantly the Sterns agreed. When Whitehead subsequently failed to return the baby, William Stern filed a complaint seeking legal enforcement of the surrogacy contract.

--Whitehead and her husband, in response, took Baby M and fled to Florida from New Jersey. They moved around to attempt to avoid authorities, but they were eventually located and Baby M was returned to the Sterns at four months old.

--Eight months later, when Baby M was one year old, the trial court handed down its decision. It upheld the surrogacy contract, ordered the termination of Mary Beth Whitehead's parental rights, and awarded sole custody to William Stern. The baby was subsequently adopted by Elizabeth Stern.

--However, the NJ Supreme Court ruled differently. The court concluded that surrogacy contracts are null and void in NJ, based on four concerns:
1) A surrogate cannot be forced by any contract to give up a child because she is in no position to make an informed choice before birth.

2) Commercial surrogates are tantamount to "baby selling."

3) Commercial surrogacy would allow the rich to exploit the poor.

4) There is a risk of psychosocial harm to the child in question.

The final word? The Court awarded custody to the Sterns, but allowed visitation rights to Mary Beth Whitehead.

My question: What do you think? Do you agree with the trial court or the NJSC, and why? I'm always interested to know what DU thinks.

[Dave Reynolds]

1. I happen to agree with the trial court.

In my simplistic worldview, a contract is a contract. I also think more psychological harm comes to the child by constant upset and uncertainty.

As far as the rich exploiting the poor, that arguably occurs in every employer-employee relationship, service for pay. I realize a baby is not a service, but carrying and delivering it is. Mrs. Whitehead was paid for her services.

[Fleshdancer]

2. The first reason is just insulting

A surrogate cannot be forced by any contract to give up a child because she is in no position to make an informed choice before birth.

__________

I find this line of reasoning absurd and insulting. A woman is more than capable of making an informed choice regarding her reproductive system in any situation...whether it be to go on birth control, have an abortion, give birth, or become a surrogate.

In this specific case, we're talking about a woman who already went through the pregnancy and birth process twice. She may have endured emotional harm, but uninformed? This just simply is not true.

[Left Is Write]

4. I think "uninformed" may not be the best choice of words...

but what they were essentially saying is that a woman can't be expected to know how she will feel about surrendering a child until that child is born.

I agree with that. I have never been in a position where I considered surrendering a baby, so I can't know exactly how I'd feel about it until I gave birth to that baby. Even if I thought I'd have no problem with it, I may change my mind after going through with the birth and seeing/holding the baby.

I don't see it as insulting.

[Rabrrrrrr]

3. I think I have to side with the NJ Supreme Court on this one

I agree with 1, 2, and 3. I don't think 4 is much of an issue, but certainly could be.

I do think that if a mother is willing to be a surrogate, and then backs out, she needs to pay back everything that she has been given.

I give this opinion rather heavy-heartedly, though - neither is really a good option, and by siding with the NJ Supreme Court, I've also disregarded the father's biological claim to the baby.

But I think, having to choose between two evils, I prefer to err on the side of letting the surrogate mother keep the child if she decides after the birth that she wants to; and the biological father should be utterly immune from ever having to pay child support or extortion.


Gods, it's a tough one.

[Left Is Write]

5. I absolutely agree with your stipulation to pay back any money received.

If a surrogate mother changes her mind about surrendering the child, she should pay back everything, including medical bills paid on her behalf.

Where it really becomes sticky is if the child is not biologically hers (if she carried a baby conceived via IVF not using her egg). She can make a legal claim to her own biological child, but could she do the same if it were not?

[Rabrrrrrr]

6. Ooh, now that's a REALLY sticky situation!

Makes me glad I'm not a judge.

There's the part of me that just wants to say "Look, you signed a contract". But the other part of me that agrees with the NJ Supreme Court says "That's a pretty slippery slope to selling babies and abuse of the poor by the rich".

Thankfully, I don't have to decide on the scenario you offered, so I refuse to answer at this point, because no decision is a good one. :-)