Ethics: Whose Child Is This?

Baby M. and the agonizing dilemma of surrogate motherhood

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In the crowded courtroom in Hackensack, N.J., listeners heard repeated last week the now familiar outlines of the story. William Stern, 40, a biochemist, and his wife Elizabeth, 41, a pediatrician, contracted with Whitehead early in 1985 for her to conceive a child through artificial insemination and carry it on their behalf. The three were brought together through the Infertility Center of New York, a for-profit Manhattan agency. The Sterns chose Whitehead, now 29, after reviewing and rejecting the applications of 300 women. Some drank. Some smoked cigarettes or marijuana. Some just did not look the part. The Sterns wanted a candidate "who might have looked like us," said Elizabeth Stern.

Mary Beth Whitehead seemed perfect. A housewife with two school-age children by her husband Richard, she had wanted to become a surrogate mother to help a childless couple. She claimed to want no more children of her own. After she met the Sterns for the first time at a New Jersey restaurant, the three became friends, trading phone calls back and forth. Whitehead signed a contract, promising among other things that she would not "form or attempt to form a parent-child relationship" with the resulting infant. The Sterns promised to pay her $10,000, plus medical expenses. They paid the center $10,000. But during delivery, Whitehead told the court last week, she decided she could not go through with it. "Something took over," she said. "I think it was just being a mother."

Whitehead, who did not accept her fee or sign over custody, took the child home with her. Three days later the Sterns collected the baby from the Whitehead home, but next morning Whitehead came by to beg for the infant's temporary return. After a two-hour encounter that both sides say was punctuated by emotional outbursts, the Sterns reluctantly agreed. "We thought she was suicidal," William Stern said. Two weeks later, when the Sterns came to her home, Whitehead told them she would not give up the child.

The following month, after obtaining a court order that required the infant to be handed over to them, the Sterns returned, accompanied by five policemen. In the confusion, Richard Whitehead slipped away with the child through a bedroom window. The Whiteheads then fled with the baby to Florida, where they were tracked down by a private detective hired by the Sterns. Authorities took the infant and returned her to New Jersey. Last September, Judge Sorkow gave temporary custody to the Sterns, but he allowed Mary Beth Whitehead to spend two hours twice a week with Baby M. on the neutral turf of a local children's home.

The judge, who is hearing the suit without a jury, will have little to guide him as he makes his decision. There have been at least four other instances in which a surrogate mother has decided to keep the child. The cases either were settled out of court or produced no guiding precedent. In the past few years, at least 21 states have groped toward legislation on surrogacy, without success. Laws defining and regulating the practice must somehow be distinguished from statutes in all 50 states against baby selling. Further, in the 29 states that have laws covering artificial insemination, the consenting husband of a woman who is artificially inseminated is deemed the legal father. The opposite is proposed under potential surrogacy legislation in which the semen donor is considered the father.

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