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Indeed, the sharpest objection to surrogacy is the prospect of watching conception itself go commercial. "Children are not goods or property," says Norman Robbins, a Birmingham, Mich., attorney with a special interest in family law. "Children cannot be bought or sold by parents." While pregnancy can be as much an ordeal as a blessing, sanctioned compensation raises the prospect of some women, especially among the poor, turning to careers as professional breeders. Truly nightmarish prospects of a breeding market may be on the horizon, with greater use of the in vitro procedure, a still uncommon practice, which makes possible the insertion of the laboratory- fertilized egg of one woman into the womb of another. Some fear that the poorest American or even Third World women would become human incubators for prosperous couples who prefer not to gestate their own offspring.
And if surrogacy is acceptable for infertile couples, what about others who want children -- infertile singles, say, or married women who fear that pregnancy will interrupt their careers? The Baby M. case has already touched on the latter issue. It was once presumed that the Sterns resorted to the surrogate process because Dr. Stern was unable to conceive. A different reason emerged in court last week, when William Stern testified that his wife had been diagnosed in 1979 as having a probable mild case of multiple sclerosis. The couple turned to surrogacy, he now says, because they feared that a pregnancy could result in her paralysis or even death. Whitehead's lawyers will be calling medical witnesses to cast doubt on the likelihood of such an outcome, with the implication that Dr. Stern's real concern was to avoid disrupting her career.
"We need to treat these matters in much the same way that we now regulate adoption," says Doris Jonas Freed, chairman of the New York State Bar Association committee on surrogacy. Among other things, she would require comprehensive investigation of potential surrogates and contracts containing cooling-off periods to allow surrogates to change their minds. "In fact," she says, "a surrogacy contract should require the sanction and approval of the courts."
Elizabeth Kane, 44, a mother of three from Pekin, Ill., and one of the nation's first contracted surrogate mothers, firmly believes such women need more legal protection. "I would still give the birth mother first choice," Kane says. If she does give up the child, psychological counseling should be provided for her after delivery. "A woman needs to talk to someone and say, 'I miss my baby.' I had to suppress those feelings for years." During the pregnancy, she says, contracting couples are always solicitous. "But once you've delivered, they are not interested in you. We give up so much to have a child for another woman, and then we don't have any rights."