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VOLUME 5 Contents 2 Editor's Column / About the Cover 3 Current Issues 4 Baby M: The Legal System Confronts Conflicting Human Values Katharine T Bartlett 9 Apartheid and the South African Judiciary / Lawrence G. Baxter 16 Advertising and the Ethical Profession / Thomas B. MetzloJJ 22 The Tax Reform Act of 1986: The Impact on Support of Public Goods and Services / Richard Schmalbeck 30 About the School 31 Duke Law School Conference on Career Choices 35 Duke Society of Medical-Legal Affairs: Bridging The Gap Between Law and Medicine 36 The Duke Bar Association 36 BALSA and Duke Law School 37 Duke's Forum for Legal Alternatives: Activism, Education, and Mutual Support 39 The Student Funded Fellowships Program DEAN EDITOR ASSOCIATE EDITOR Paul D. Carrington Evelyn M. Pursley Maria lsikli NUMBER 2 41 The Docket 42 Fulbright Scholars at Duke 45 Duke Law Alumni Pursue Diverse Second Careers 48 Alumnus Profile: Gary Lynch 51 Book Review: Justice et Argumentation 54 Specially Noted 58 Alumni News 67 Upcoming Events Duke Law Magazine is published under the auspices of the Office of the Dean, Duke University School of Law, Durham, North Carolina 27706 © Duke University 1987 STUDENT REPORTERS BUSINESS MANAGER PRODUCfION Robert Nagy Mary Jane Flowers Graphic Arts Services Christopher Petrini David Schwarz DUKE LAW MAGAZINE I 2 Editors Column About the Cover In this issue, the Duke Law members in the Fulbright program, Magazine celebrates the diversity including several faculty members of interests and expertise among who recently received grants to Duke Law School alumni, faculty teach and study abroad. Also fea­ and students. Several faculty mem­ tured are several alumni, including bers share their views on matters of a novelist, an artist and an entre­ topical interest, including the Baby preneur, who continue to practice M case and the surrogate mother­ law while claiming success at other hood issue, attorney advertising, endeavors. Our alumnus proftle fea­ some effects of the new tax law tures Gary Lynch, who is currently and the role of the judiciary under serving as Director of Enforcement South Africa's system of apartheid. at the SEC, and our book review We continue the series of articles reports on a collection of essays on on student organizations currently law and philosophy co-edited by Guy operating at the Law School in the Haarscher, a visiting professor at About the School section. This the Law School. The remainder of issue features some groups which that section focuses on the current show the diversity of interests of activities and accomplishments of our student body. A Significant our alumni and events at the Law The cover reproduces a painting, addition to the Law School calen­ School. Full Moon Behind Clouds, 1987, dar, of importance to students and The Alumni Activities feature by Rick Horton, '80. An article on alumni interested in placing Duke (including Personal Notes and Obit­ Rick's success as an artist since grad­ Law students in compatible jobs, is uaries) is now a regular part of the uating from Law School appears in reported in the article on the Con­ Docket. We have been pleased by the Docket. ference on Career Choices. the response to this feature and en­ The transparency for our use In the Docket, we continue to courage you to continue to send us in reproducing the painting on the highlight the personal and profes­ news of the milestones in your per­ cover was kindly provided courtesy sional accomplishments of Duke sonal and professional careers so of Gimpel & Weitzenhoffer Gallery Law School faculty and alumni. In that we can share the news with (New York and London) and the this issue we report on the involve­ the rest of the Duke Law Alumni Jerald Melberg Gallery, Inc. (Charlotte, ment of Duke Law School faculty family. North Carolina). DUKE LAW MAGAZINE 14 Baby M: The Legal System Confronts Conflicting Human Values Katharine T. Bartlett * aby M 1 focuses for us an irreconcilable conflict between some of our most basic values: the sanctity of motherhood on the one B hand; the powerful human drive for genetic reproduction and the value of keeping one's word on the other. These values play a critical role in how we define ourselves and our purpose on this earth. Most of us have experienced some ambivalence in this area. How courts decide cases like Baby M. becomes part of the background against which we resolve this ambivalence. We want them to come out right. Given these stakes, the trial court's decision in the Baby M case is disappointing. The custodial award of Baby M. to her biological and by then psychological father, William Stern, is supportable taking as given the circumstances of March 31, 1987: Baby M. had, by that time, been in the custody of the Sterns for eight months (since she was four months old) and a change of custody at that point would have been cruel. The delays creating these circumstances, as well as the "temporary" placement of Baby M. with the Sterns, are more difficult to justify. What I will address here is not the outcome of the case, however, but the basis upon which the case was decided. The court's approach is troubling. Despite its child-focused rhetOric, the court centers on the rights of the respective parents rather than the child. It offers a blunt inter­ pretation of those rights rather than a refmed analysis of their meaning and application. It focuses on reci­ .. Professor of Law, Duke University School of Law. procity of obligations and fairness rather than the Professor Bartlett began teaching at Duke in 1979. promotion of parent-child relationships and on fIxed, Her special areas of interest include child advocacy, stereotypical notions of appropriate parental conduct family law, and public school law. rather than realistic understandings of the wide range This paper includes material from a presentation of ways parents can demonstrate commitment to made by Professor Bartlett at a program on surro­ their children. gate parent contracts sponsored by the Womens Law The heart of the court's opinion was its fInding Society at Duke Law School on March 17, 1987 and that the surrogate parenting contract is enforceable. sections from a piece by Professor Bartlett entitled Under this contract, Mary Beth Whitehead agreed, Courts Not Bound by Parental Agreements, in a col­ for the payment of $10,000, to become inseminated lection of opinions by law professors published in the with the sperm of William Stern; to carry the child to New Jersey Law Journal on Feb. 26, 1987 It is part term after conception; to deliver the child to Mr. Stern; of a larger work-in-progress on claims by women and to have her parental rights terminated. She agreed for exclusive parenthood. also not to form a parent-child relationship with the VOL. 5, NO.2 / 5 child. When, after the birth, she changed her mind Despite its child-focused rhetoric; the and wanted to keep the child, months of procedural wrangling and a six-month trial ensued. The trial court court's approach centers on the rights enforced the terms of the contract giving custody to of the respective parents rather than Mr. Stern and terminating Mrs. Whitehead's parental rights. It also granted the adoption of the child by the child. Mrs. Stern. To hold the contract enforceable, the trial court had to bypass the available New Jersey law. New Jersey, term child, like the services of a farmer who grows like all other states, prohibits agreements involving com, may change the terms of the exchange but it makes consideration paid or promised in connection with a the child (like com) no less an object of commercial placement for adoption.2 Courts are not bound by value than if she were the explicit object of purchase. any agreements made by parents that relieve them of That Mr. Stern is the child's biological father reduces their parental obligations or that determine custody only slightly the indignity and risks of commodifica­ of their children.3 New Jersey law also, again like other tion, for it does not negate the fact that money is states, specifies procedures that must be followed and paid for the purpose of obtaining a child who would findings a court must make before a private adoption otherwise "belong" to another. can be ordered.4 Adoption requires that the rights of Adoption laws are also intended to prevent the exer­ the child's parents be terminated, that the parents fail tion of pressure on and exploitation of women whose to object to the adoption, or that the parents have personal circumstances may make them vulnerable to intentionally abandoned the child or substantially arrangements under which they give up their babies for neglected their parental duties. 5 money: The trial court concluded that women con­ The "surrogate parenting agreement" in this case was sidering surrogacy are not subject to the same kinds drafted in a deliberate attempt to circumvent the baby­ of pressures as already-pregnant women. This distinc­ selling prohibition by characterizing Mrs. Whitehead's tion is also problematic. A legislature that declines to commitment as the performance of services rather authorize the enforcement of surrogacy contracts may than the sale of a product, and by providing for delivery have concluded quite sensibly that legal endorsement of the child only to Mr. Stern, the child's biological of surrogacy contracts will add to the perceived accept­ father, rather than to him and his wife. The court ability and thus frequency of surrogacy arrangements, found this choice of terminology determinative, con­ making pregnancy and childbirth for pay an option cluding that the contract described a transaction that to which women in severe economic straits may increas­ the legislature did not intend to regulate through its ingingly be vulnerable.
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