Title: Surrogate Motherhood as Prenatal Adoption

Author: Bonnie Steinbock

Publishing Information: Law, Medicine and Health Care, Vol. 16, no. 1 (1988) 44-50 Reprinted by permission

Summary by Jason Chirichigno ( SCCC 2002)

There are two major areas that Steinbock explores in this article. She begins with a detailed explanation of the Baby M case then she moves on to explore the claims that surrogacy is ethically unacceptable because it is exploitive, inconsistent with human dignity, or harmful to the children born of such arrangements. Steinbock's ultimate conclusion is that surrogacy should be heavily regulated to ensure protection of all those involved, not prohibited. She begins with a factual account of the Baby M case and relays the facts as follows.

Mary Beth Whitehead was inseminated with the sperm of William Stern. An agreement was made whereby Mrs. Whitehead shortly after birth would surrender the baby to the Stern's for a fee of $10,000. Needless to say, Mrs. Whitehead changes her mind and escapes to Florida with Baby M to avoid being captured by the police due to the warrant that the Stern's had obtained. After Mrs. Whitehead is caught the case eventually goes to court in New Jersey. There are two crucial court decisions which affect this case. The first ruling is given by Judge Harvey S. Sorkow who rules on March 31, 1987, that the surrogacy contract is valid, and that Dr. Stern (Mr. Stern's wife) can legally adopt the child. Upset with the decision Mrs. Whitehead appeals the case all the way to the New Jersey Supreme Court, which on February 3, 1988 overturn the decision. "The court held that a surrogacy contract which provides money for the surrogate mother and which includes her irrevocable agreement to surrender her child at birth, is invalid and unenforceable" (p. 696). However, the court was ultimately concerned with the best interest of the child, hence a ruling that the child should stay with the Stern's but Mrs. Whitehead still had full visitation rights to the child as she is the legal biological mother. Steinbock argues that maybe this was not the best decision for the child but then she explores the fact that neither family was completely desireable. Mrs. Whitehead was going through turmoil in her married life at the time, ending in divorce and Dr. Stern was ambivalent about having children from the outset.

Although Dr. Stern had the early signs of a possible degenerative disease, she was not infertile and may have been able to conceive on her own. She never consulted an expert about her condition and having a child was completely a function of her husband's desire to have offspring bearing his name. Steinbock points out that Dr. Stern was a successful physician who might not have wanted to put her career on hold in order to have a baby. "This possibility conjures up many people's worst fears about surrogacy: That prosperous women, who do not want to interrupt careers, will use poor and educationally disadvantaged women to bear their children" (p. 697). Steinbock concludes that the only person who has truly lost in this scenario is Baby M who will live her life with two sets of parents continuing to fight over her. At this point Steinbock moves onto the question of, "Should surrogacy be permitted?", by exploring the arguments which claim, "surrogacy is intrinsically unacceptable" (p. 698).

Steinbock opens this part of the discussion by clearly stating that surrogacy should be carefully regulated, not prohibited. She explores both the paternalistic arguments against surrogacy and the moral objections. As for the paternalistic arguments, Strinbock claims that they attempt to protect a woman (surrogate mother) from making a decision now that they might regret later, however, "respect for individual freedom requires us to permit people to make choices which they might later regret" (p. 695).

As for exploitation, the author feels that surrogacy is not exploitive simply because it is risky. She cites the example of stuntmen as no one would say that they are exploted, (they love their job). In addition, with surrogacy, " Some mothers may derive a feeling of self-worth from an act they regard as highly altruistic" (p. 699). As for human dignity Steinbock dispels the notion that surrogate motherhood is akin to being sold into slavery. "The child born of a surrogate is not treated cruelly or deprived of freedom or resold" (p. 699). However, Steinbock still has a problem with a market value being assigned to a child and makes the recommendation to, "limit the payment to the medical expenses associated to the birth or incurred by the surrogate during the pregnancy" (p. 700). With the right to privacy Steinbock points out that this argument is usually used in favor of surrogacy and she ultimately uses this argument to propose a waiting periond (as in ordinary post-natal adoption) that will, "help protect women from making irrevocable mistakes, without banning the practice" (p. 700).

As for the moral objections, Steinbock claims that they seek to make four main points: 1) It is inconsistent of human dignity that a woman should use her uterus for financial profit. 2) To deliberately become pregnant with the intention of giving up the child distorts the relationship between mother and child. 3). Surrogacy is degrading because it amounts to child-selling. 4) Since there are some risks attached to pregnancy no woman should be asked to undertake pregnancy for another in order to earn money. (Moral objections, p. 699). In response to these four moral objections Steinbock explores the notions of exploitation, human dignity, the right of privacy and harm to others.

In relation to harm to others, Steinbock claims that such an argument does not seem to, "justify an outright ban" (p. 700) of surrogacy. For Steinbock any harm that might come to a child as a product of a surrogate agreement are the same as those for any normal adoption or children of divorce. In conclusion, Steinbock claims that surrogacy should be regulated, not prohibited. "It would be better for the state to regulate the practice, and minimize the potential for harm, without infringement on the liberty of patients" (p. 701).