The Strange Case of Baby M
This article originally appeared in the May 23, 1987 issue.
I think I understand Judge Harvey Sorkow's ruling in the Baby M case. It seems that a woman can rent her womb in the state of New Jersey, although not her vagina, and get a check upon turning over the product to its father. This transaction is not baby selling (a crime), because a man has a "drive to procreate" that deserves the utmost respect and, in any case, the child is genetically half his. The woman he pays for help in fulfilling that drive, however, is only "performing a service" and thus has no comparable right to a child genetically half hers. Therefore, despite the law's requirements in what the layperson might think are similar cases (women who change their minds about giving up a child for adoption, for example), a judge may terminate a repentant mother-for-money's parental rights forever without finding that she abused or neglected her child--especially if he finds her "manipulative, exploitive and deceitful." In other words, so-called surrogacy agreements are so unprecedented that the resulting human arrangements bear no resemblance to adoption, illegitimacy, custody after divorce, or any other relationship involving parents and children, yet, at the same time, bear an uncanny resemblance to the all-sales-final style of a used-car lot.
The State Supreme Court will hear Mary Beth Whitehead's appeal in September and has meanwhile granted her two hours of visiting time a week--a small sign, perhaps, that in jettisoning the entire corpus of family law, Judge Sorkow may have gone a bit too far. (The New York Times had trouble finding a single legal scholar who supported the judge's reasoning in full.) Maybe not, though. Despite the qualms of pundits, the outrage of many feminists and the condemnation of many religious leaders, every poll to date has shown overwhelming approval of Judge Sorkow's ruling. Twenty-seven states are considering bills that would legalize and regulate bucks-for-baby deals. What on earth is going on here?
Some of this support surely comes from the bad impression Mrs. Whitehead made every time she opened her mouth--most damningly, in her tape-recorded threat to kill Baby M and herself. And some comes from the ineptitude of her lawyer. (Where was the National Organization for Women? Where was the American Civil Liberties Union?) The Sterns said they would drag the Whiteheads through the mud, and they did. We learned as much about the Whiteheads' marital troubles, financial woes and quarrelsome relatives as if they were characters on All My Children. Distinguished experts testified that Mrs. Whitehead, who has raised two healthy, normal kids, is a bad mother and emotionally unbalanced: she was "overenmeshed" with her kids, disputed the judgment of school officials, gave Baby M teddy bears to play with instead of pots and pans (pots and pans?) and said "hooray" instead of "patty-cake" when the tot clapped her hands. I know that, along with two-thirds of the adult female population of the United States, I will never feel quite the same about dyeing my hair now that Dr. Marshall Schechter, professor of child psychiatry at the University of Pennsylvania, has cited this little beauty secret as proof of Mrs. Whitehead's "narcissism" and "mixed personality disorder." Will I find myself in custody court someday, faced with the damning evidence of Exhibit A: a half-empty bottle of Clairol's Nice 'N' Easy?
Inexplicably, Mrs. Whitehead's lawyer never challenged the Sterns's self-representation as a stable, sane, loving pair, united in their devotion to Baby M. And neither did the media. Thus, we never found out why Dr. Elizabeth Stern claimed to be infertile on her application to the Infertility Center of New York when, in fact, she had diagnosed herself as having multiple sclerosis, which she feared pregnancy would aggravate; or why she didn't confirm that diagnosis until shortly before the case went to trial, much less consult a specialist in the management of MS pregnancies. Could it be that Elizabeth Stern did not share her husband's zeal for procreation? We'll never know, any more than we'll know why a disease serious enough to bar pregnancy was not also serious enough to consider as a possible bar to active mothering a few years down the road. If the Sterns' superior income could count as a factor in determining "the best interests of the child," why couldn't Mary Beth Whitehead's superior health?
The trial was so riddled with psychobabble, class prejudice and sheer callousness that one would have expected public opinion to rally round Mrs. Whitehead. Imagine openly arguing that a child should go to the richer parent! (Mr. Whitehead drives a garbage truck; Dr. Stern is a professor of pediatrics, and Mr. Stern is a biochemist.) And castigating a mother faced with the loss of her baby as hyperemotional because she wept! But Mrs. Whitehead (who, it must be said, did not help her case by perjuring herself repeatedly) made a fatal mistake: she fell afoul of the double standard of sexual morality. Thus, in the popular mind, Mrs. Whitehead was "an adult" who "knew what she was doing," while Mr. Stern, presumably, was not an adult and did not know what he was doing. Mrs. Whitehead was mercenary for agreeing to sell, but not Mr. Stern for proposing to buy. That victim-as-seducer mentality hasn't got such a workout since a neighborhood matron decided to stop for a drink at Big Dan's bar in New Bedford, Massachusetts.
The personalities of the Whiteheads and the Sterns, so crucial during the custody phase of the trial, will soon fade from public memory. The extraordinary welter of half-truths, bad analogies, logical muddles and glib catch phrases that have been mustered in defense of their bargain are apparently here to stay. If we are really about to embark on an era of reproductive Reaganomics--and most Americans seem to be saying, Why not?--we at least ought to clear away some of the more blatantly foolish things being said in support of it. For example:
Mary Beth Whitehead is a surrogate mother.
"Mother" describes the relationship of a woman to a child, not to the father of that child and his wife. Everything a woman does to produce her own child Mary Beth Whitehead did, including giving it half the genetic inheritance regarded by the judge as so decisive an argument on behalf of William Stern. If anyone was a surrogate mother, it was Elizabeth Stern, for she was the one who substituted, or wished to substitute, for the child's actual mother. (Note: In this artlcle I will use the terms "contract mother," "maternity contract" and their variants, except where I am indirectly quoting others.)
What's in a name? Plenty. By invariably referring to Mrs. Whitehead as a surrogate, the media, the courts and, unwittingly, Mrs. Whitehead herself tacitly validated the point of view of the Sterns, who naturally wanted to render Mrs. Whitehead's role in producing Baby M as notional as possible, the trivial physical means by which their desire--which is what really mattered--was fulfilled. And if Mrs. Whitehead was the substitute, then Dr. Stern must be the real thing.
Oddly enough, Mr. Stern, whose paternity consisted of ejaculating into a jar, was always referred to as the father or natural father or, rarely, biological father of Baby M, except by Mrs. Whitehead, who called him "the sperm donor." Although that is a far more accurate term for him than "surrogate mother" is for her (let alone "surrogate uterus," which is how the distinguished child psychologist Lee Salk referred to her), her use of it was widely taken as yet another proof of her irrational and cruel nature. Why was this harpy persecuting this nice man?