THE CASE OF "BABY M" AND THE NEW REPRODUCTIVE TECHNOLOGIES

Gifts of Life

By the 1980s parents who wanted children but were unable to conceive had a bewildering variety of new procreative possibilities available to them. There was in-vitro fertilization (IVF), the results of which are popularly known as "test-tube babies." Scientists retrieved an egg (ovum) from the mother and mixed it with the father's sperm in a glass container called a petri dish so that the ovum could be fertilized. Once the zygote was created, a doctor was able to place it in the woman's uterus to develop, as in a normal pregnancy. In July 1978 the world's first "test-tube baby/' Louise Brown, was born in Great Britain. With in-vitro fertilization, excess embryos could even be frozen for later pregnancies. In the GIFT procedure (gamete intrafallopian transfer) zygotes were created when prepared sperm and three to four harvested ova were injected a short distance into the end of the woman's fallopian tube rather than united in a petri dish. Surrogate motherhood—bearing a child for another woman, often for payment—also evolved, using technologies related to IVF. Instead of a child having two parents, a mother and a father, there could be as many as five different "parents": two genetic parents who contributed sperm and ova for in vitro fertilization or artificial insemination; the birth mother who accepted the transferred zygote, gestated the fetus, and gave birth; and the social parents who reared the child. All of this became news to most Americans in 1986 when the notorious case of "Baby M" made head-lines.

Surrogate Motherhood

The Baby M court case in 1987 was one of the first to generate public debate about the issue of surrogate pregnancy. Typically in the mid 1980s, surrogacy was based on a formal legal agreement between the would-be parents and the woman who agreed to serve as a surrogate. During the pregnancy the usual agreement called for restrictions on the surrogate mother's behavior and authority to make medical decisions about her and the fetus. There were often large sums of money involved, and a growing industry of surrogate-mother brokering began to make the formal practice more common. In other cases surrogacy was a private arrangement with no legal contracts involved. In 1985 Maty Beth Whitehead signed a contract agreeing to act as a surrogate mother for William and Elizabeth Stern for a payment of $10,000. The following year she broke her contract and decided to keep the baby. Her decision led to a widely publicized court battle and many legal and ethical questions. For Whitehead the arrangement required her to undergo artificial insemination, to gestate the fetus, and to give the child up at birth to the genetic father and his wife, who was not biologically the child's mother.

Baby M

When the baby (who came to be known to the public as Baby M) was born, Whitehead felt she had made a terrible mistake. Although she first turned over the baby to her contractual parents, she later asked to have her for a visit. She then fled to Florida with the baby, her other two children, and her husband. The FBI investigated and the child was returned to the Sterns. After a well-publicized and prolonged custody battle, the New Jersey Superior Court upheld the legal contract, giving the child to the Sterns. In 1988 New Jersey's Supreme Court reversed the ruling and banned surrogate contracts for pay. It gave custody to William Stern, invalidated Elizabeth Stern's adoption of Baby M and gave Mary Beth Whitehead broad visitation rights.

Troubling Questions

Most legal problems in the United States fall under state laws, so cases must be resolved in several jurisdictions before legal precedents can be established. Many other state legislatures began to regulate surrogate arrangements because of the large sums involved and the growing industry of surrogate-mother brokering. Legal regulations for the behavior of the surrogate mother, such as requiring her to exercise, seek regular medical attention, or to refrain from drugs, alcohol, and tobacco, created issues of potentially dangerous precedents for regulating all women during pregnancy and standardizing the behavior and medical care of pregnant women. The Baby M case raised other troubling questions. What makes a mother or father suitable to be a parent, and who should decide? Should surrogacy be abolished? Who was qualified to determine a child's "best interest?" Was a surrogate-mother contract baby-selling? Mary Beth Whitehead was not well educated. She and her family lived on a low income and needed the funds paid for her service. The Sterns were well educated and upper middle class. Was surrogacy becoming a blue-collar "occupation?" At the end of the decade the answers were still being explored, and commercialized surrogate brokering had decreased. Commercial surrogacy was banned in some states, while others legalized it, passing laws that made couples who contracted for surrogacy services the legal parents of the children produced. Voluntary arrangements for surrogate mothering did not pose the same threats as the commercial ones and were likely to continue in all their different forms. Still unanswered by 1989 was the question of how the children of these surrogate arrangements and other new reproductive technologies would fare. Most children conceived by the new technologies were not yet adolescents by 1989, and evaluating the psychological costs of surrogacy and other reproductive technologies on children would have to wait until the next decade.