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- February 15, 1988LAWBaby M Meets Solomon's Sword
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- The New Jersey Supreme Court says no to surrogacy for pay
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- Approaching the case of Baby M, the New Jersey Supreme Court
- might have wished for the sword of Solomon--not to divide the
- child, but to cut through the Gordian thicket of paradox, bad
- faith and conflicting feelings that has surrounded the matter
- from the start. As it turned out, in a unanimous ruling last
- week the court sliced the issue in a way that gave important
- concessions to both the parents, but cut to the quick the
- practice of surrogacy for pay.
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- The seven justices voided the 1985 contract by which Biochemist
- William Stern and his pediatrician wife Elizabeth had arranged
- to pay Mary Beth Whitehead $10,000 to bear a child fathered by
- him through artificial insemination. Under state adoption law
- and public policy, the court concluded, paying women to be
- surrogate mothers was "illegal, perhaps criminal, and
- potentially degrading to women." Wrote Chief Justice Robert
- Wilentz: "There are, in a civilized society, some things that
- money cannot buy."
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- Even so, the justices gave custody of 22-month-old Melissa
- Elizabeth to her father. The Sterns, the court decided, could
- provide a more stable home: "Their household and their
- personalities promise a much more likely foundation for Melissa
- to grow and thrive." Last November Whitehead divorced her first
- husband to marry Dean Gould, and the couple is now expecting a
- child of their own. But the justices also restored the parental
- rights of Whitehead-Gould, which the trial judge had terminated,
- and invalidated last year's adoption of Melissa by Elizabeth
- Stern. By instructing a lower court to decide the question of
- Whitehead-Gould's visitation rights, they also opened the way
- for her to maintain contact with her daughter for many years to
- come.
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- The court said surrogate arrangements would not be illegal if
- the mother were not paid and if the agreement allowed her to
- change her mind after the birth of the child. But in practice
- that concession may not amount to much. How many women would
- be likely to bear a child without compensation? And how many
- infertile couples would be as willing to go through the process,
- faced with the possibility that the mother might renege? Though
- the ruling applies only to New Jersey, that state's supreme
- court is one of the nation's most influential, especially in
- matters of bioethics. "This ruling deals a death blow" to the
- practice, says Jeremy Rifkin of the National Coalition Against
- Surrogacy. About 27 states have considered legislation on
- surrogacy, ranging from regulation to outright prohibition.
- Last July Louisiana passed a law voiding surrogate contracts,
- and last week the Nebraska legislature voted to do the same.
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- Supporters of surrogacy have managed some lesser court victories
- in the past. Two years ago, for example, the Kentucky Supreme
- Court ruled that surrogate arrangements in themselves did not
- violate hat state's public policy. "We're getting different
- decisions in different jurisdictions," says Michigan Attorney
- Noel Keane, one of the nation's chief surrogacy brokers and the
- man who helped arrange the birth of Baby M.
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- States that legalize the practice could become magnets for
- infertile couples from other states where commercial surrogacy
- is banned. And where the practice is prohibited entirely, say
- some, it will merely be driven underground. "There is so much
- infertility," observes Feminist Attorney Lynne Gold-Bikin.
- "Desperate people will resort to desperate methods."
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- Meanwhile, the once desperate people in the Baby M case are
- likely to find themselves tied together for some time by the
- common bond of the child they all claim. Whitehead-Gould
- declared herself "delighted to know my relationship with my
- daughter will continue for the rest of our lives." That
- prospect left the Sterns considerably less than delighted. They
- plan to try to block or limit the visits.
-
- --By Richard Lacayo. Reported by Jeanne McDowell/New York
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