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?