Surrogacy: controversial but often successful

WHEN Tom and Barbara found that they could not have children, they investigated various forms of traditional adoption. But none seemed feasible to this suburban Boston professional couple. Public agencies said they would have to wait up to 10 years for a baby.

And private adoption was an ``unknown quantity,'' says Tom.

So Tom and Barbara turned to an untraditional, highly controversial alternative: surrogacy.

In their case, it worked out. They ended up with Catherine, born in December 1985. And they are extremely happy about the outcome.

``It felt right for us,'' Tom explains.

Obtaining a baby through a surrogate - a third party who is impregnated with the father's sperm - has all at once spurred major social debate in the United States and in many other parts of the world in the light of the Baby M child custody case in New Jersey.

The practice itself is neither new or widespread. Lori Andrews, who studies reproductive technologies for the American Bar Foundation, says that the number of births recorded annually through artificial means far exceeds the 500 estimated surrogacy births.

Dr. Andrews is referring to in-vitro fertilization (producing so-called test-tube babies) and the freezing of embryos for later implantation.

The surrogacy process involves impregnating a fertile woman with the sperm of a man whose wife is unable to conceive. This way a child is produced with a biological link to the infertile couple.

In the Baby M case, Mary Beth Whitehead, a young woman with children of her own, agreed to bear a child in this manner for William and Elizabeth Stern for $10,000.

After the baby was born, however, Mrs. Whitehead was unwilling to give her up. A bitter court battle ensued which focused national attention on surrogacy.

Among the issues: Is this type of reproductive technique legal, and are surrogacy contracts binding? Is surrogacy a type of baby-selling or a new and legitimate form of adoption? What are the religious and moral issues raised by this process?

On March 31, New Jersey Family Court Judge Harvey R. Sorkow answered some of these questions - at least as they pertained to the Baby M dispute - in his ruling.

Judge Sorkow awarded the child to the Sterns - immediately allowing Elizabeth Stern (the wife of the sperm donor) to adopt her. The jurist said that the surrogacy contract was legal and binding. Noting that Stern was the infant's biological father, he rejected the argument that the transaction amounted to baby-selling. Whitehead, in the judge's opinion, was merely performing a service for which she was paid.

Judge Sorkow did not flatly state that surrogacy was covered under existing adoption laws. He did, however, cite that this practice was ``not against public policy,'' particularly at a time when 2 million childless couples are vying for 50,000 adoptable babies.

``It should be apparent that a large segment of our potential childbearing population is unable to bear a child naturally,'' Judge Sorkow pointed out. ``Adoption is not available. These facts oblige many people to turn to alternative methods of reproduction to obtain a family,'' he said.

The Baby M ruling is being appealed. And a state Supreme Court decision is due next fall. The matter could eventually be decided by the Supreme Court of the United States.

Meanwhile, hundreds of infertile couples like Tom and Barbara and the Sterns continue to seek babies through surrogacy and other artificial means.

No state has a comprehensive law regulating surrogacy. Some have statutes that refer to the subject, dealing with related issues such as artificial insemination. Almost all states, however, specifically ban baby-selling. But most of the laws are unclear as to whether surrogacy constitutes an illegal transaction if specific payment is made for the surrogate's services.

Following the widespread publicity surrounding Baby M, most legislatures are at least discussing the matter of surrogacy and the delicate issues that would surround the practice if it were legalized.

Among them: If a surrogate changes her mind, should the law allow her to keep the baby? If the child is born physically or mentally handicapped, must the intended parents still accept the infant? And if there is a serious problem during pregnancy, can the couple insist that the surrogate have an abortion?

Further, some states are grappling with the issue of fees - and trying to decide whether a cap should be placed on payments to the surrogate.

Others are considering mandating that all prospective surrogates be married and have natural children of their own; that couples only be allowed to pursue this means if they are infertile or there is evidence that pregnancy would present physical dangers to the wife; and that all parties concerned be required to undergo psychological counseling before an agreement is entered into.

A proposed New York state law, if passed, could serve as a model for the nation.

It would permit the practice of surrogacy, but strictly regulate it. For instance, contracts would have to be court-approved. The court would investigate the health, finances, and mental stability of the intended parents and receive certification of the wife's infertility.

Also the surrogate would undergo psychological examination to see if she were capable of giving up a child after bearing it.

The most controversial part of this legislation is the requirement that the surrogate relinquish all parental rights at childbirth. Opponents of surrogacy will almost certainly challenge this provision, and perhaps the entire bill.

Meanwhile, the thrust to legalize surrogacy is coming from lawyers who handle such matters and from a loosely formed lobby composed of surrogates and their supporters, the National Association of Surrogate Mothers.

Jan Sutton, a spokeswoman for this California-based group, argues for the right of women to act as surrogates. She insists that few surrogates ``do it for the money.''

``We do not become surrogate mothers to get rich,'' says this mother of two who also performed surrogate duties twice. ``We become [surrogates] to enable infertile couples to enjoy the rewards of parenting, as we do.

``It takes a very special kind of person. ... It's not [for] everybody. We feel it gives us a chance to contribute to society in a unique and special way,'' Mrs. Sutton explains.

But there are naysayers, including some of those who have served as surrogates.

Most outspoken is Elizabeth Kane (not her real name), a former surrogate who now decries the practice. She says she has never recovered from the experience of giving up a child in l980 and thinks of herself as a ``human incubator.'' Mrs. Kane now considers surrogacy tantamount to baby-selling and changes that women are being exploited into ``renting spaces in their bodies.''

The practice is also condemned by some feminists. The founding president of the National Organization for Women, Betty Friedan, says that if a surrogate wants to change her mind, her claim as a carrier of the baby should prevail over that of a man who has merely ``donated sperm.''

Although many surrogates insist that the practice does not challenge their religious convictions, most churches have either opposed surrogacy or called for further investigations into its theological and moral implications.

The Vatican, for example, now officially condemns surrogacy and in-vitro or test-tube fertilization as tampering with human life.

Tom and Barbara found their surrogate through the Kansas-based Hagar Institute. (The name is biblical. Hagar was the handmaiden who bore a child for Abraham when his wife Sarah could not conceive.) The couple praise the institute for helping them make an arrangement that was ``sensitive, ethical, and made sense.''

Kansas laws allowed Tom to gain custody of baby Catherine 24 hours after birth. Barbara then legally became the stepmother through the adoption process.

Next: Adopting the ``special'' child.