The United States legal community is headed back to the drawing boards to try to frame acceptable guidelines for surrogate parenting. Several recent court rulings have deemed the practice bad public policy, but they have not completely banned it.
However, the New Jersey Supreme Court's edict last week in the much-publicized ``Baby M'' case and a Michigan lower court decision just before that place in doubt the validity of future contracts. Both courts condemned the commercialization of the process and struck down surrogacy agreements, in which an infertile married couple hires a woman to become pregnant by artificial insemination of the husband's sperm.
Legal experts say the New Jersey ruling, although not binding outside that state, will have far-reaching influence on surrogacy law in all 50 states.
The New Jersey Supreme Court is ``the bellwether court of the US in family law issues,'' says Robert Arenstein, a New York family-law specialist.
Lori Andrews, an authority in medical law for the American Bar Foundation, points out that the extensive analysis by the high court in New Jersey ``cuts across broader issues,'' such as adoption, child custody, infertility, and new reproductive technologies.
Lawyers and judges joined medical and ethics experts over the weekend at American Bar Association (ABA) sessions to try to craft a framework for future surrogacy legislation.
About half the states have already considered proposals in this area, but to date there are no laws on the books that either detail the validity of surrogacy contracts or flatly ban the practice under all circumstances.
Although sharply divided over the moral implications of surrogate arrangements, many participants at the ABA sessions in Philadelphia said surrogacy should be allowed when there is no payment for the services of the surrogate mother and the arrangement does not preclude the her from changing her mind and keeping the baby.
Other issues triggering controversy involve the legal status of the sperm-donor's wife regarding the child, payment of brokers' fees to lawyers and fertility centers, and use of the adoption model of ``best interest of the child'' when custody is disputed.
In the Baby M case, the New Jersey Supreme Court allowed the natural father, William Stern, and his wife, Elizabeth, to retain custody of the child but invalidated a lower-court ruling permitting a formal adoption.
Eliminating payments in surrogate contracts would in effect end the practice, says Gary Skoloff, a lawyer who represents the Sterns. Mr. Skoloff insists that the surrogate is paid for her services and labor and this does not constitute baby selling, which is illegal in all states.
He also stresses that if a pre-birth agreement is not binding on a surrogate to relinquish her child, few couples would be willing to take the risk of entering into such a contract.
Harold Cassidy, who represents Mary Beth Whitehead-Gould, the surrogate mother in the Baby M case, says the natural mother of a child must have the option to change her mind until a court order seals the placement. Mr. Cassidy calls surrogate parenting ``nothing more than a new trick in an old game'' - the game of pressuring women to give up their babies.
Michelle Harrison, a medical doctor from Massachusetts, insists that there is inherent racism in the surrogacy issue. ``Thousands of black babies need to be adopted. We're talking about creating white infants for white couples,'' she says.
Sheila Taub, a law professor at the University of Bridgeport, says surrogacy ``reduces children to a commodity that can be bought or sold ... and cheapens motherhood.''
Future court tests across the US will almost certainly clarify public policy on the surrogacy issue. Federal legislation is unlikely because the matter is seen as one for state resolution.
The ABA's final recommendations will be announced next summer.