The contract’s basic premise, that the natural parents can decide in advance of
birth which one is to have custody of the child, bears no relationship to the
settled law that the child’s best interests shall determine custody.
The surrogacy contract guarantees permanent separation of the child from one
of its natural parents. Our policy, however, has long been that to the extent
possible, children should remain with and be brought up by both of their
natural parents. The impact of failure to follow that policy is nowhere better
shown than in the results of this surrogacy contract. A child, instead of starting
off its life with as much peace and security as possible, finds itself immediately
in a tug-of-war between contending mother and father. And the impact on the
natural parents, Mr. Stern and Mrs. Whitehead, is severe and dramatic.
The depth of their conflict about Baby M, about custody, visitation, about the
goodness or badness of each of them, comes through in their telephone
conversations, in which each tried to persuade the other to give up the child.
The potential adverse consequences of surrogacy are poignantly captured
here—Mrs. Whitehead threatening to kill herself and the baby, Mr. Stern
begging her not to, each blaming the other. The dashed hopes of the Sterns,
the agony of Mrs. Whitehead, their suffering, their hatred—all were caused by
the unraveling of this arrangement.
The surrogacy contract violates the policy of this State that the rights of natural
parents are equal concerning their child, the father’s right no greater than the
mother’s. The whole purpose and effect of the surrogacy contract was to give
the father the exclusive right to the child by destroying the rights of the mother.
Here there is no counseling, independent or otherwise, of the natural mother,
no evaluation, no warning. Under the contract, the natural mother is
irrevocably committed before she knows the strength of her bond with her
child. She never makes a totally voluntary, informed decision, for quite clearly
any decision prior to the baby’s birth is, in the most important sense,
uninformed, and any decision after that, compelled by a pre-existing
contractual commitment, the threat of a lawsuit, and the inducement of a
$10,000 payment, is less than totally voluntary. Her interests are of little
concern to those who controlled this transaction.
Worst of all, however, is the contract’s total disregard of the best interests of
the child. There is not the slightest suggestion that any inquiry will be made at
any time to determine the fitness of the Sterns as custodial parents, of Mrs.
Stern as an adoptive parent, their superiority to Mrs. Whitehead, or the effect
on the child of not living with her natural mother. This is the sale of a child, or,
at the very least, the sale of a mother’s right to her child, the only mitigating
factor being that one of the purchasers is the father. Almost every evil that
prompted the prohibition on the payment of money in connection with
adoptions exists here.
The differences between an adoption and a surrogacy contract should be noted,
since it is asserted that the use of money in connection with surrogacy does
not pose the risks found where money buys an adoption.
First, and perhaps most important, all parties concede that it is unlikely that
surrogacy will survive without money. Despite the alleged selfless motivation of
surrogate mothers, if there is no payment, there will be no surrogates, or very
few. That conclusion contrasts with adoption; for obvious reasons, there
remains a steady supply, albeit insufficient, despite the prohibitions against
payment. The adoption itself, relieving the natural mother of the financial
burden of supporting an infant, is in some sense the equivalent of payment.
Second, the use of money in adoptions does not produce the
problem—conception occurs, and usually the birth itself, before illicit funds are
offered. With surrogacy, the “problem,” if one views it as such, consisting of
the purchase of a woman’s procreative capacity, at the risk of her life, is
caused by and originates with the offer of money.
Third, with the law prohibiting the use of money in connection with adoptions,
the built-in financial pressure of the unwanted pregnancy and the consequent
support obligation do not lead the mother to the highest paying, ill-suited,
adoptive parents. She is just as well-off surrendering the child to an approved
agency. In surrogacy, the highest bidders will presumably become the adoptive
parents regardless of suitability, so long as payment of money is permitted.
Fourth, the mother’s consent to surrender her child in adoptions is revocable,
even after surrender of the child, unless it be to an approved agency, where by
regulation there are protections against an ill-advised surrender. In surrogacy,
consent occurs so early that no amount of advice would satisfy the potential
mother’s need, yet the consent is irrevocable.
In the scheme contemplated by the surrogacy contract in this case, a middle
man, propelled by profit, promotes the sale. Whatever idealism may have
motivated any of the participants, the profit motive predominates, permeates,
and ultimately governs the transaction. The demand for children is great and
the supply small. The availability of contraception, abortion, and the greater
willingness of single mothers to bring up their children has led to a shortage of
babies offered for adoption.
The point is made that Mrs. Whitehead agreed to the surrogacy arrangement,
supposedly fully understanding the consequences. Putting aside the issue of
how compelling her need for money may have been, and how significant her
understanding of the consequences, we suggest that her consent is irrelevant.
There are, in a civilized society, some things that money cannot buy. In
America, we decided long ago that merely because conduct purchased by
money was “voluntary” did not mean that it was good or beyond regulation
The long-term effects of surrogacy contracts are not known, but feared—the
impact on the child who learns her life was bought, that she is the offspring of
someone who gave birth to her only to obtain money; the impact on the natural
mother as the full weight of her isolation is felt along with the full reality of the
sale of her body and her child; the impact on the natural father and adoptive
mother once they realize the consequences of their conduct. Literature in
related areas suggests these are substantial considerations, although, given
the newness of surrogacy, there is little information.
The surrogacy contract is based on principles that are directly contrary to the
objectives of our laws. It guarantees the separation of a child from its mother;
it looks to adoption regardless of suitability; it totally ignores the child; it takes
the child from the mother regardless of her wishes and her maternal fitness;
and it does all of this, it accomplishes all of its goals, through the use of money.
A sperm donor simply cannot be equated with a surrogate mother. The State
has more than a sufficient basis to distinguish the two situations—even if the
only difference is between the time it takes to provide sperm for artificial
insemination and the time invested in a 9-month pregnancy—so as to justify
automatically divesting the sperm donor of his parental rights without
automatically divesting a surrogate mother.
This case affords some insight into a new reproductive arrangement: the
artificial insemination of a surrogate mother. The unfortunate events that have
unfolded illustrate that its unregulated use can bring suffering to all involved.
Potential victims include the surrogate mother and her family, the natural
father and his wife, and most importantly, the child. Although surrogacy has
apparently provided positive results for some infertile couples, it can also, as
this case demonstrates, cause suffering to participants, here essentially
innocent and well-intended.