Bernard Axelrad Scholarship Fund

The other day, I was listening to a personal problem faced by someone very dear to me. In groping vainly for solutions to his dilemma, I blurted out, "It seems to me that some problems just have no answers."

There are situations where one individual is not necessarily right and the other wrong. There just are insoluble problems for which one seeks an "answer"; but, all too often we can only do our best with it, even if the resolution is far from perfect.

The recent "Baby M" custody case, fought out in a New Jersey courtroom between the natural mother and the father whose sperm was used to impregnate her, is a good example of a problem without an ideal solution. From the range of diverse reactions that greeted the decision to award sole custody to the father (William Stern) and his wife (Elizabeth), rather than to the surrogate (Mary Beth Whitehead) who bore Baby M, it was obvious that for all who were gratified by the decision, there were an equivalent number of dissenters.

The court, in the person of Judge Harvey Sorkow, was faced with a situation similar to the legendary quandary confronting King Solomon. Two women, each of whom claimed to have given birth to the same infant, asked for adjudication. As the story goes, King Solomon, after hearing each of their stories of mothering the infant and unable to decide between the two conflicting versions, offered to cut the child in half with each of the putative mothers getting an equal share.

The spurious mother quickly accepted this solution, while the actual mother demurred and insisted that the King turn the child over to the other woman. Of course, this provided King Solomon with his answer as to who the real mother was. And that's how he earned a reputation of being a wise man.

In these more sophisticated times the judge had unavailable to him a "fairy tale" solution, and was required to decide a similarly sensitive question at the end of a protracted and bitter trial. Both parties were represented by capable legal counsel assisted by social workers, psychiatrists and other experts.

Judge Sorkow's decision to award sole custody of the child to the natural father and his barren wife brought forth numerous critical commentaries.

He conspicuously based his decision on simple contract law, namely, that the surrogate, Mary Beth Whitehead, had contracted to carry the baby during gestation and deliver it at birth to the natural father and his wife in exchange for the sum of $10,000. Unfortunately it was anything but a simple contract matter. The subject matter — a baby — precluded that.

The trial captivated the public. Voraciously the media covered the court questioning of the natural father and surrogate mother, as the lawyers delved into the most intimate details of their finances and personal lives. The trial and ultimate decision were the subject of public speculation, and were copiously analyzed and dissected by columnists, commentators, legal scholars and the clergy.

During the gestation period, Whitehead apparently developed overwhelming motherly instincts which she claimed didn't allow her to give up the child; and, she did refuse the $10,000 payment that was coming to her. Still, she backed out only after being impregnated with Stern's sperm.

Testimony indicated that Mary Beth's husband had a drinking problem and she herself had episodes of instability in her history. Yet no finding of lack of fitness was lodged against her except by implication.

The Sterns came across as upper middle class professionals, better able financially to support the child; and, by any objective standards, they had to be deemed the more fit, conventional parents. It also was revealed that Stern was the last survivor of Holocaust victims and wanted to perpetuate his line and name by means of this infant. Furthermore, William Stern had supplied his sperm, and had contracted for the services of Whitehead (who had willingly entered into this agreement initially).

From the hue and cry that greeted the decision in the media, it was apparent that this was not only a controversial issue but also a noticeable example of a case in which there are no perfect solutions. Whoever "won" would do so at the expense of heartache to the other blameless litigant.

Nobody involved in this contest wore a black hat.

How to reconcile and resolve the disparate and antagonistic interests that were involved here would have tested not only the skills of legal scholars but of ethicists and philosophers as well.

It seems to me that there were four distinct interests involved in this case, namely the surrogate mother, the natural father, the child, and the state.

I would propose several general areas of inquiry that I think are germane in reaching an acceptable solution to this type of problem.

Does this case smack of baby buying, or was the $10,000 payment merely for the surrogate's services in carrying the child?

Service rendered: renting her womb

If it was a matter of 'buying' a baby, then obviously it would be reprehensible and unconstitutional. However, there is no prohibition against contracting for someone else's services provided the law doesn't ban the particular subject matter. As far as I know, New Jersey law did not forbid surrogate mother contracts, and Mary Beth Whitehead could be deemed to be selling the service of renting her womb for nine months to carry the child for Stern.

Apparently there have been over 500 of these contracts that have been carried out, and only three of them have resulted in litigation.

Ancillary to this issue of contracting for such services is the potential problem of what to do if the surrogate miscarries or unilaterally decides to abort her pregnancy. Or, most important of all, gives birth to a defective (and unwanted) infant.

Is the surrogate mother any more entitled to custody of the child she carries than the father whose sperm impregnated her?

More and more in divorce cases the courts are inclined to grant joint custody to a former husband and wife. While this may satisfy advocates of equal treatment of the sexes, it cannot be denied that women play a unique role in reproduction that no male can match. Moreover, neither joint or split custody solutions are feasible in a surrogate mother arrangement, nor is that what the parties bargained for.

To what extent should contract law govern in a situation as emotional as this and involving the welfare of an infant?

Joint custody is not feasible

Judge Sorkow appeared to give a great deal of weight to basic contract principles in his decision awarding the child to the Sterns, as provided in their agreement with Whitehead. Perhaps it would have been better if he had not emphasized the sanctity of contract as much as other factors in coming to his decision.

The judge could have handled the case as a routine matter and assigned custody to one of the biological parents relying upon traditional standards in gauging the character and suitability of rival parents. His decision could have been premised on which set of parents would most likely assure the best interests of the infant. By not focusing on contract law he could have avoided the rankling connotation of enforcing a contract where a child was the subject matter of the agreement.

Should the state's ultimate decision rest purely on what's best for the infant?

I have little quarrel with the proposition that the welfare of the child should be the primary consideration of any tribunal faced with this problem. Where antithetical claims are asserted, as in the "Baby M" case, society's paramount concern should be in safeguarding the interest of the infant.

Both Stern and Whitehead had choices, acted volitionally, and assumed the very risk which occurred, while Baby M — innocent and helpless — merits public protection.

In these days of great technological advances, where we have human organ transplants, transplants from animals, test tube babies, artificial engineering of genes, removing life-sustaining treatment and such, it seems that decisions require a more profound and encompassing wisdom than judges normally are endowed with. Perhaps cases like this should be decided by special tribunals composed of lawyers, ethicists, scholars and philosophers.

This was a case that was predestined to raise more questions than answers. We must be prepared for other similarly disquieting problems and evolve a social policy consensus, either through the legislature preferably or by way of the judiciary, to assure some guiding ground rules for the public.

Is it socially beneficial to encourage surrogate mother contracts as one way of increasing the number of happy families and wanted children?

Is it in society's interests to satisfy the yearnings of sterile couples, unable to conceive after years of embarrassing, painful and expensive infertility testing?

If so, then we must be prepared to suffer through an occasional "Baby M" spectacle to remedy the situation.

Even as I write about this "new" problem for society to face, I am struck by some truly ancient precedents. There really is nothing new under the sun!

Really nothing new under sun

It's rather interesting that surrogate mother arrangements go back as far as Genesis in the Bible and the time of Sarah and Abraham; "Now Sarah, Abram's wife, bore him no children: and, she had a hand maid, an Egyptian whose name was Hagar. And Sarah said unto Abram:

'Behold now, the Lord had restrained me from bearing: go in. I pray three, unto my hand maid; it may be that I shall be budded up through her....' And he went in unto Hagar and she conceived." (Genesis, XVI:1-4)

For those who recall the story in the Bible, Hagar gave birth to Ishmael as a result of this request on the part of Sarah, who wanted Abraham to have a child even if it was with someone else.

And still among the Patriarchs and Matriarchs, we have another instance of surrogate mothering:

"And when Rachel saw that she bore Jacob no children... she said: 'Behold, my maid, Bilhah, go in unto her; that she may bear upon my knees, and I also may be builded up through her.' And she gave him Bilhah, her hand maid, to wife; and Jacob went in unto her. And Bilhah conceived and bore Jacob a son. And Rachel said: 'God... had heard my voice, and path give me a son." (Genesis, XXX:1-6)

So, while the surrogate mother issue dates back to the early days of Jewish history, I'm not so sure that the answers are any easier to come by now than they were then.