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A standard contract currently used in many such arrangements does not provide the surrogate mother with many rights, but puts a good number of restraints on her. She agrees to abstain from smoking, alcohol and drugs as well as sexual intercourse during the period around insemination. Most agreements forbid her to abort without consent of the father, though some require it if amniocentesis reveals fetal abnormalities. And while the mothers are screened, though not always with sufficient diligence, the contracting couples often are not. What are the ethical dilemmas of a surrogate mother who delivers her child into a home she knows little about?
In September a committee formed by the American Fertility Society of Birmingham issued a 100-page volume of ethical guidelines relating to the host of new reproductive technologies. Because of the risks to the mother, the committee pronounced itself "not favorably disposed to the use of surrogate mothers for nonmedical reasons." But the members declined to issue an across-the-board condemnation. And they deplored the absence of reliable data from which to draw conclusions. Mary Beth Whitehead is a high school dropout who married at 16. Is that typical of surrogate mothers? Are they more likely % to be exploited or fulfilled, altruistic or driven by dark motives?
The American principle is ever an active one: to set to work on a problem and be done with it. In an area with so much potential for exploitation and grief, that impulse is easily understood. But to shape lasting solutions now -- whether to legitimate surrogacy or prohibit it -- may be premature when so little is known. "We have real concerns about the widespread use of surrogacy until more study is done," says Dr. Richard Marrs of Cedars-Sinai Hospital in Los Angeles and a member of the committee that drew up the fertility society's guidelines. "We have to reserve our ethical judgment until we see the data."
Still, one question must be answered. Whose child is Baby M. to be? Sympathies can be divided, the infant cannot. Solomon's threatened sword will no longer bring a simple answer. Deciding her fate will require all of Judge Sorkow's compassion, sense and ability to appraise clearly the issues involved. In March the baby will have her first birthday, almost certainly before she has her last name. It is unconscionable, unacceptable for her, but the questions her case raises are painful and daunting. When the opportunities that technology provides bring dilemmas in their wake, technology rarely provides answers to them. In the end, only people bear children. People will have to bear the consequences too.