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But paradoxes abound throughout the subject of surrogacy, a notion that speaks to the parental instinct and offends it in the same stroke. So that a father can enjoy a blood relation to his child, the surrogate mother is persuaded to treat the same bond as negotiable. For all the complexities, however, surrogacy is one of the simplest and most venerable of the new conception options. Even the Bible offers a parallel (in the Book of Genesis, naturally). When his wife proved unable to conceive, Abraham impregnated her handmaiden Hagar, who bore Ishmael. There were hard feelings in the aftermath of that arrangement too.
Modern contract surrogacy emerged around 1976. Noel Keane, a Dearborn, Mich., attorney who helps run the infertility center that is involved in the Baby M. case, handled one of the first such arrangements. "I know there are thousands of people who want it and need it," Keane once wrote of surrogate motherhood, "including the surrogate mothers."
Statistics on the subject are few and inexact, but Keane estimates that 500 children have been born to surrogate parents since then, 65 of them last year. About a dozen surrogate centers are in operation around the country. The number is small but is likely to grow at a time when as many as 15% of married couples in the U.S. meet the medical definition of infertile.
That potential demand makes some people anxious to see the surrogate practice halted now. "If you regulate it," objects William Pierce, president of the National Committee for Adoption, "that is making a public statement that it's all right. We decided a hundred years ago we didn't want people bought and sold in this country." Some religious groups vehemently oppose the practice. The Roman Catholic Church, which condemns artificial insemination outside of marriage, regards surrogacy as a violation of the biological and spiritual unity of husband and wife. In a joint statement last month, New Jersey's bishops further contended that surrogacy "exploits a child as a commodity and exploits a woman as a babymaker."
Rabbi Moses Tendler, professor of Jewish medical ethics at Manhattan's Yeshiva University, is no less affronted by what he calls the hiring of a "uterus for nine months." He maintains, "In the old days you could buy a whole person -- a slave -- to do with as you wished. Now, if these surrogate contracts are accepted, you'll be able to buy just a specific organ."
One argument for legalization is that forbidding surrogacy will simply drive it underground, ensuring that an unregulated black-market trade will flourish. But if the practice is to be permitted, in what form should it survive? Fearing that conception, the most intimate of functions, might become one more branch of private enterprise, some experts want surrogacy to be conducted like adoption, mostly through nonprofit agencies. "I do not think people should be gestating babies for money," says Arthur Caplan, director of the Bio-Medical Ethics Center at the University of Minnesota. "Entrepreneurs who come into the business are not being screened."