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The Strange Case of Baby M | The Nation

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The Strange Case of Baby M

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A deal's a deal.

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Katha Pollitt
Katha Pollitt
Katha Pollitt is well known for her wit and her keen sense of both the ridiculous and the sublime. Her "Subject to...

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The law, passed in 1993 with near-unanimous support, has become an excuse for bigotry, superstition and sectarianism.

There’s no telling how far religious exemptions will go under Justice Alito’s ruling.

This is what it's really all about, isn't it? To hear the chorus of hosannas currently being raised to this sacred tenet of market economics, you'd think the entire structure of law and morality would collapse about our ears if one high-school-dropout housewife in New Jersey was allowed to keep her baby. "One expects a prostitute to fulfill a contract," intoned Lawrence Stone, the celebrated Princeton University historian, in The New York Times. (Should the poor girl fall to show up at her regular time, the campus police are presumably to tie her up and deliver her into one's bed.) Some women argue that to allow Mrs. Whitehead to back out of her pledge would be to stigmatize all women as irrational and incapable of adulthood under the law. You'd think she had signed a contract to trade sow bellies at $5 and then gave premenstrual syndrome as her reason for canceling.

But is a deal a deal? Not always. Not, for instance, when it involves something illegal: prostitution (sorry, Professor Stone), gambling debts, slavery, polygyny, sweatshop labor, division of stolen goods and, oh yes, baby selling. Nor does it matter how voluntary such a contract is. So if your ambition in life is to be an indentured servant or a co-wife, you will have to fulfill this desire in a country where what Michael Kinsley calls "the moral logic of capitalism" has advanced so far that the untrained eye might mistake it for the sort of patriarchal semifeudalism practiced in small towns In Iran.

Well, you say, suppose we decided that contract motherhood wasn't prostitution or baby selling but some other, not flatly illegal, transaction: sale of parental rights to the father or some such. Then a deal would be a deal, right? Wrong. As anyone who has ever shopped for a co-op apartment in New York City knows, in the world of commerce, legal agreements are abrogated, modified, renegotiated and bought out all the time. What happens when contracts aren't fulfilled is what most of contract law is about.

Consider the comparatively civilized world of publishing. A writer signs up with one publisher, gets a better offer from another, pays back his advance--maybe--and moves on. Or a writer signs up to produce a novel but finds she'd rather die than see it printed, although her editor thinks it's a sure-fire bestseller. Does the publisher forcibly take possession of the manuscript and print 100,000 copies because it's his property and a deal's a deal? No. The writer gives back the advance or submits another idea or persuades her editor she's such a genius she ought to be given even more money to write a really good book. And, somehow, Western civilization continues.

The closer we get to the murky realm of human intimacy the more reluctant we are to enforce contracts in anything like their potential severity. Marriage, after all, is a contract. Yet we permit divorce. Child-support agreements are contracts. Yet a woman cannot bar the father of her children from leaving investment banking for the less lucrative profession of subway musician. Engagement is, if not usually a formal contract, a public pledge of great seriousness. Yet the bride or groom abandoned at the altar has not been able to file a breach of promise suit for almost a hundred years. What have we learned since desperate spouses lit out for the territory and jilted maidens jammed the courts? That in areas of profound human feeling, you cannot promise because you cannot know, and pretending otherwise would result in far more misery than allowing people to cut their losses.

When Mary Beth Whitehead signed her contract, she was promising something it is not in anyone's power to promise: not to fall in love with her baby. To say, as some do, that she "should have known" because she'd had two children already is like saying a man should have known how he'd feel about his third wife because he'd already been married twice before. Why should mothers be held to a higher standard of self-knowledge than spouses? Or, more to the point, than fathers? In a recent California case a man who provided a woman friend with sperm, no strings attached, changed his mind when the child was born and sued for visitation rights. He won. Curiously, no one suggested that the decision stigmatized all his sex as hyperemotional dirty-dealers.

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