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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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Fatherhood and motherhood are identical.

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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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It is at this point that one begins to feel people have resigned their common sense entirely. True, a man and a woman contribute equally to the genetic makeup of a baby. But twenty-three pairs of chromosomes do not a baby make. In the usual course of events the woman is then pregnant for nine months and goes through childbirth, a detail overlooked by those who compare maternity contracts to sperm donation. The proper parallel to sperm donation is egg donation.

Feminists who argue that respecting Mrs. Whitehead's maternal feelings will make women prisoners of the "biology is destiny" arguments should think again. The Baby M decision did not disclaim the power of biology at all: it exalted male biology at the expense of female. Judge Sorkow paid tribute to Mr. Stern's drive to procreate; it was only Mrs. Whitehead's longing to nurture that he scorned. That Baby M had Mr. Stern's genes was judged a fact of supreme importance-more important than Mrs. Whitehead's genes, pregnancy and childbirth put together. We might as well be back in the days when a woman was seen merely as a kind of human potting soil for a man's seed.

Speaking as a pregnant person, I find the view of maternity inherent in maternity contracts profoundly demeaning. Pregnancy and delivery are not "services" performed for the baby's father. The unborn child is not riding about inside a woman like a passenger in a car. A pregnant woman is not, as one contract mother put it, "a human incubator"; she is engaged in a constructive task, in taxing physical work. Some of this work is automatic, and no less deserving of respect for that, but much of it is not--an increasing amount, it would appear, to judge by doctors' ever-lengthening list of dos and don'ts.

Now, why do I follow my doctor's advice: swill milk, take vitamins, eschew alcohol, cigarettes, caffeine, dental X-rays and even the innocent aspirin? And why, if I had to, would I do a lot more to help my baby be born healthy, including things that are uncomfortable and wearisome (like staying in bed for months, as a friend of mine had to) or even detrimental to my own body (like fetal surgery)? It's not because I want to turn out a top-of-the-line product, or feel a sense of duty to the baby's dad, or have invested the baby with all the rights and privileges of an American citizen whose address just happens to be my uterus. I do it because I love the baby. Even before it's born, I'm already forming a relationship with it. You can call that biology or social conditioning or a purely emotional fantasy. Perhaps, like romantic love, it is all three at once. But it's part of what pregnancy is--just ask the millions of pregnant women who feel this way, often to their own astonishment, sometimes under much less auspicious circumstances than Mrs. Whitehead's. It makes my blood boil when it is suggested that if contract mothers delivered under anesthesia and never saw their babies they wouldn't get a chance to "bond" and would feel no loss. I suppose the doctor could just tell them that they gave birth to a watermelon.

And so we arrive at the central emotional paradox of the Baby M case. We accept a notion that a man can have intense fatherly emotion for a child he's never seen, whose mother he's never slept with, let alone rubbed her back, or put his hand on her belly to feel the baby kick, or even taken her to the hospital. But a woman who violates her promise and loves the child she's had inside her for nine months, risked her health for, given birth to... She must be some kind of nut.

Women need more options, not fewer.

To suggest that female poverty can be ameliorated by poor mothers selling their children to wealthy fathers is a rather Swiftian concept. But why stop at contract motherhood when there's still a flourishing market for adoptive babies? Let enterprising poor women take up childbearing as a cottage industry and conceive expressly for the purpose of selling the baby to the highest bidder. And since the law permits parents to give up older children for adoption, why shouldn't they be allowed to sell them as well? Ever on the reproductive forefront, New Jersey recently gave the world the sensational case of a father who tried to sell his 4-year-old daughter to her dead mother's relatives for $100,000. Why he was arrested for doing what Mary Beth Whitehead was forced to do is anybody's guess.

Even leaving aside the fact that maternity contracts involve the sale of a human being, do women need another incredibly low-paying (around $1.50 an hour) service job that could damage their health and possibly even kill them, that opens up the most private areas of life to interference by a pair of total strangers, that they cannot get unless they first sign an ironclad contract forgoing a panoply of elementary human rights? By that logic, working in a sweatshop is an option, too--which is exactly what sweatshop employers have always maintained.

But people are going to do it anyway. Shouldn't they be protected?

There are some practices (drinking, abortion, infidelity) so entrenched in mass behavior and regarded as acceptable by so many that to make them illegal would be both undemocratic and futile. Contract motherhood is not one of them. In ten years only about 500 women have signed up. So the argument that we should legitimize it because it's just human nature in its infinite variety is not valid--yet.

Now, it's probably true that some women will bear children for money no matter what the law says. In the privacy of domestic life all sorts of strange arrangements are made. But why should the state enforce such bargains? Feminists who think regulation would protect the mother miss the whole point of the maternity contract, which is precisely to deprive her of protections she would have if she had signed nothing. If the contracts were unenforceable, the risk would be where it belongs, on the biological father and his wife, whose disappointment if the mother reneges, though real, can hardly be compared with a mother's unwilling loss of her just-born child. The real loser, of course, would be the baby-broker. (Noel Keane, the lawyer who arranged for Baby M, made about $300,000 last year in fees for such services.) And that would be a very good thing.

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