The second half of the 20th century has been full of uneasy trade-offs and Faustian bargains. One after another, life's most intimate and privileged matters -- sexual relations, conception, birth and death -- have been delivered to the unsanctified ground of science and commerce. The results may be welcome: the laboratory study of sex leads to treatments for sexual dysfunction; technologies of fertility give hope to the childless; mechanical organs offer the chance of longer life. But even as the gains are counted, the reservations mount. Even when the mind assents, the heart sometimes shivers.
For anyone but the central figures, and perhaps for them as well, mixed emotions are the only kind that seem fitting to bring to the New Jersey courtroom where a landmark case involving custody of a 9 1/2-month-old infant is being heard. Mary Beth Whitehead thought she knew herself in 1985, when she contracted, as a surrogate mother, to bear a child for William and Elizabeth Stern. But her certainties crumbled when she gave birth last March to the girl she calls Sara, the Sterns call Melissa and court papers call Baby M. In hours of emotional testimony last week, Whitehead told the court that the experience of childbirth "overpowered" her. Her husband said that after handing over the child to the Sterns, his wife cried hysterically, asking, "Oh God, what have I done?"
The court battle over Baby M. will answer only a part of that question. In deciding the case, New Jersey Superior Court Judge Harvey Sorkow becomes the first judge in the U.S. asked to enforce a surrogate agreement. He could treat the case mainly as a contract dispute, rule that the contract is valid and award the child to the Sterns. Or he could opt to treat it basically as a custody battle; then the best interests of the child would be the guiding principle. Custody is often awarded to mothers, but since Baby M. has been living with the Sterns at the judge's order for most of the time since she was born, that approach may favor them too.
Any decision is almost certain to be appealed. Yet even when the final court has its final say, the echoes of Whitehead's anguished question will still hang in the air. If a society legitimates surrogacy, what has it done? Has it imperiled its most venerable notions of kinship and the bond between mother and child? Has it opened the way to a dismal baby industry, in which well-to-do couples rent out the wombs of less affluent women, sometimes just to spare themselves the inconvenience of pregnancy? Yet if surrogacy is prohibited, has a promising way for childless couples to have families been denied them? And what if the truest answer to those questions is also the most problematical -- yes to all the above?