ONCE Baby M was started on the path to human life, in her surrogate mother's womb, the potential for the emotional, legal, social, and philosophical dispute just carried out in a New Jersey courtroom was also created. And when Judge Harvey R. Sorkow decided to grant permanent custody to William Stern, whose sperm was used to inseminate artificially the surrogate mother, Mary Beth Whitehead, he would also have had to declare the surrogacy contract itself valid, as he did.
Once a child is conceived and born, it generates new circumstances that must be addressed. But backing up a moment, it can fairly be asked whether individuals, couples, or society ought deliberately to encourage surrogate births that lead to such controversy. We think not.
Apart from the competing claims of a natural father, the biological mother, contract law, and so forth, a child needs to have confidence in the enduring care, affection, and devotion of both its natural parents.
That cases of adoption or divorce also may burden youths with heartache or confusion over their niche in the world is not an argument for widening their class with surrogate offspring.
Nonetheless, the longing of childless couples for children ``at least half their own'' combines with advances in medical technology and a modern penchant for contractualizing human relationships to generate a surrogacy movement that will have to be addressed further in legislatures and courtrooms. It may take years before a satisfactory public policy is reached. Judge Sorkow's words are among the first, not the last, on the subject.
Is surrogacy, or carrying a child under contract, simply a business arrangement? Can personal services contracts, if that is what surrogacies are, be enforced? Judge Sorkow declared one portion of the Stern-Whitehead contract invalid - that which would have allowed Stern to demand an abortion if the fetus were deemed defective. But if a surrogate retains the right to abort, which likely follows from US Supreme Court positions on abortion, at what point does she lose authority over the child's place in the world? Adoption laws generally allow a mother a period of time after delivery to reconsider placement.
Is surrogacy a form of slavery, as critics starkly phrase their objection, with women having to subject their bodies to testing and delivery procedures dictated by contract? Does it tend toward a two-class system of affluent child-acquirers and poorer child-bearers?
Is it appropriate to charge $10,000 or more to arrange surrogate contracts? If some 600 contracts are in effect, this means a $6 million enterprise for their promoters. Other countries either ban surrogacy outright or ban any payment for it, relating it to child-selling.
Apart from the child and its biological mother and father, addressed in the courtroom, what about the emotional security of siblings or the nonparticipating husband in the surrogate's household? Should an intimate portion of family life be subject to outside commerce?
On the positive side, the desire to have and raise children inherent in the surrogacy dispute reflects the natural impulse of the human species to participate in its own perpetuation and elevation. This is a proper motivation. Many childless people find ways, either through adoption, through nurturing professions, or through personal acts of kindness and support, to promote the advance of individuals and the species, without regard to a genetic or biological tie. This may not be adequately comforting to those who want children ``of their own,'' but it does indicate how many can in large measure overcome what they perceive as a void in their existence.
By the same token, a child born under surrogacy, indeed any child, should be encouraged to realize the wholeness of her or his identity - as a child of God with total capacity for human achievement and satisfaction - without regard to human parentage.