Solomon's Judgment: Baby M and the Struggle to Define Motherhood And

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Solomon’s Judgment: Baby M and the Struggle to Define Motherhood and Morality in Modern America

Dissertation

Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University

Jeffrey Todd Vernon, J.D.

Graduate Program in History

The Ohio State University

2015

Dissertation Committee:

Judy Tzu-Chun Wu, Advisor

Mytheli Sreenivas

Daniel Rivers

Jeffrey Todd Vernon

2015

Abstract

In 1978, scientists finally succeeded at creating life outside the human body. Dr.

Robert Edwards and Dr. Patrick Steptoe managed to fertilize the eggs of Leslie Brown in a culture media before placing the resulting zygote in her uterus. Louise Brown, the world’s first child conceived outside of the human body was born on July 25, 1978 in

Oldham, United Kingdom. This astonishing accomplishment in medical science earned

Dr. Edwards the 2010 Nobel Prize in Physiology and Medicine. However, the advancement in reproductive technology drew controversy, long before it became a reality. Critics asked, do scientists have the right to control biological reproduction and in a sense play God? Do these advances pave the way for human engineering, a development dangerously close to eugenics? How should the law intervene to ensure ethical practices in the medical field? How are issues of class interconnected with access to fertility treatment?

This study centers on the New Jersey court cases comprising the Baby M litigation. Ultimately, the New Jersey Supreme Court in Baby M concluded that the surrogacy agreement between Mary Beth Whitehead (the surrogate) and the Sterns (the prospective parents) was void due to public policy. Surrogacy agreements, governed by contract, often reflect the social norms of those involved in constructing them. Moreover, the issue of surrogacy agreements, along with in vitro fertilization and other methods of

ii assisted reproductive technologies challenged notions and principles held in family law since the colonial period. These challenges have strained the legal system, pressuring it to adapt, causing it to adopt some previously established legal frameworks while modifying others.

Scholars have long focused on the regulation of the limiting forces acting on human fertility. In other words, existing historical research largely explores fertility regulation through the lens of population control, abortion, sex education and contraception. This project explores the inverse, the way the law and legal institutions sought to define the boundaries of expanding forces on fertility, such as, in vitro fertilization, surrogacy, artificial insemination and other forms of fertility treatment through the monumental judicial decisions in the Baby M case. In doing so, this project investigates the influences and processes by which the legislative and judicial branches in the United States have constructed policy choices and crafted legal solutions to govern the practice of surrogacy.

iii

To my family.

Vita

2000...... Batesville High School

2003...... B.A. History and Political Science, Indiana

University – Bloomington

2007...... J.D. Law, Indiana University –

Bloomington

2008 to present ...... Graduate Teaching Associate, Department

of History, The Ohio State University

Fields of Study

Major Field: History

Table of Contents

Abstract ...... ii

Dedication ...... iv

Vita ...... v

List of Figures ...... vii

Introduction ...... 1

Chapter 1: M is for Money ...... 30

Chapter 2: M is for Motherhood...... 85

Chapter 3: M is for Masculinity ...... 138

Chapter 4: M is for Modernity ...... 198

Chapter 5: M is for Model Regulations ...... 252

Conclusion ...... 308

Bibliography ...... 326

List of Figures

Figure 1. Uniform Parentage Act Enactment ...... 287

vii

Introduction

Then said the king, The one saith, This is my son that liveth, and thy son is the dead: and the other saith, Nay; but the dead is they son, and the living son is my son. Thus they spake before the king…Then the King said, bring me a sword. And they brought a sword before the king. And the king said: Divide the living child in two, and give half to the one, and half to the other. Then spake the woman whose the living child was unto the king, for her bowls yearned upon her son, and she said, O my lord, give her the living child, and in no wise slay it. But the other said, Let it be neither mine nor thine, but divide it. Then the king answered and said, Give her the living child, and in no wise slay it: she is the mother thereof. 1 Kings 3:22-27

The 1970s gave rise to a vast array of groundbreaking technology in the United

States. From a transformation in personal computing epitomized with the release of the

Apple II to the invention of cellular phones, a sense that technology could solve complex problems and alleviate societal evils was growing among Americans. In many ways, rapid advances in technology seemed to be leading to a renewed vision of a technological utopia.1 While Americans marveled at a new wave of technological innovation, a very different form of scientific advancement and discovery was occurring in laboratories, fertility clinics and law offices across the nation. Researchers had been pushing the

1 see Timothy Moy, “Culture, Technology, and the Cult of Tech in the 1970s” in America in the 70s (Lawrence, University Press of Kansas, 2004), 211. This was, of course, a change in American society. The general trend in American society was increasingly dismissive of technology and concerned about its ramifications. For a discussion of the development of the Apple II and personal computers see Walter Issacson, Steve Jobs (New York: Simon and Schuster, 2011).

1 boundaries of medical science, making measurable progress on creating life outside of the human body since the mid-1930s.2 The 1970s witnessed the culmination of decades of medical research with the birth of Louise Brown in 1978. Louise Brown was the world’s first “test-tube baby,” conceived with the help of in vitro fertilization (IVF). Her birth was a triumph of years of scientific research. Yet, it also signaled emerging challenges in the fields of infertility and assisted conception.

Two years before Louise Brown was born, Noel Keane, a young lawyer from

Michigan, drafted the first surrogacy contract in the United States.3 Keane’s use of contract law to negotiate surrogacy services revolutionized the manner in which infertile couples engaged surrogates. Moreover, his work, by challenging conventional legal notions of the family, had the result of reaffirming traditional constructions of family formation in American law. Perhaps none of Noel Keane’s cases is more recognizable or more widely regarded as fundamental to the development of the law controlling surrogacy in the United States than the case of In the Matter of Baby M.

Decided by the Supreme Court of New Jersey on February 3, 1988, the case centered on a custody dispute between a young, professional couple William and

Elizabeth Stern and a surrogate mother named Mary Beth Whitehead. The case captured national attention in ways few modern custody disputes could. At its core, the case of

2 see Robin Marantz Henig, Pandora’s Baby: How the First Test Tube Babies Sparked the Reproductive Revolution (Boston: Houghton Mifflin Company, 2004), 29.

3 Lawrence Van Gelder, “Noel Keane, 58, Lawyer in Surrogate Mother Cases, is Dead,” New York Times, January 28, 1997, http://www.nytimes.com/1997/01/28/nyregion/noel-keane-58- lawyer-in-surrogate-mother-cases-is-dead.html. 2

Baby M involved some of the deepest concerns of modern society: how does the element of class effect judicial proceedings; what does it mean to be a mother or a father; how is technology rapidly remaking human existence; and what moral or ethical framework should be adopted when confronting advances in biomedical technology and innovation?

Utilizing a range of approaches, newspaper columnists, attorneys, activists, and court officials raised these concerns, but ultimately definitive and lasting answers would prove elusive. The very nature of the controversy would lend itself to constant attack by groups with divergent and often irreconcilable positions. Nevertheless, the Baby M case created an intellectual and discursive framework that would be employed by attorneys, litigants, reporters, and activists over the coming two decades in developing legal rules and judicial constructions to resolve many of the issues arising from surrogacy agreements.

In many ways, the parallels between the Baby M case and the biblical story detailing the judgment of Solomon are evident. Contemporary journalists reporting on the controversy, and the subsequent trial, certainly did not overlook the striking similarities. Several commentators compared the dilemma facing the court to that of the predicament facing King Solomon. Both the Baby M case and the biblical account of the judgment of Solomon illustrate the difficulties of determining custody of a minor child.

However, where the judgment of King Solomon has often been heralded as wise, the ruling of the trial court in the Baby M case has often been met with, at best, skepticism and in a number of cases - dismissive derision. Nevertheless, like the judgment of

Solomon, the legal rules set forth in the decision by the Supreme Court of New Jersey have held an impact far beyond the individual case before the court.

Over a quarter-century following this historic ruling, this dissertation explores the legal decisions associated with the Baby M case as reflective of a growing and deepening divide in the political culture of the United States over the meaning of family values.

Moreover, this dissertation examines how traditional legal notions of the family were solidified with the Baby M trial and subsequent rulings, and then expanded to cover newly contested conceptual space created by advancing reproductive technology and innovative uses of legal doctrine.

The Baby M case mirrors the expanding and intensifying political divide over family values in the United States that accelerated during the 1970s. Grassroots conservative activism perceived the family as vulnerable, besieged by threats originating from a wide array of social movements—particularly second-wave feminism and gay rights. Grassroots conservatives pressed more traditional notions of the family, while opposing new formulations running counter to the two-parent, male-breadwinner, stay-at- home mother, nuclear family.4 Moreover, the new reproductive technology, itself, offered an escalating threat to the traditional family. New methods of conception, including surrogacy, changed the dynamics of family formation and allowed children to be conceived outside of the privacy of the marital bedroom. Importantly, the Baby M case represents a new site for contestation over the structure of the family in American society. Technological and legal innovations allowed for another conceptual and physical space to litigate the boundaries and construction of the family.

4 Matthew Lassiter, “Inventing Family Values” in Rightward Bound (Cambridge, Harvard University Press, 2008).

The Baby M case reified and reinforced legal constructs in American society supporting traditional family structures. Even after decades of generally progressive U.S.

Supreme Court decisions, relating to bodily autonomy, marital privacy, and parental control over the family,5 courts still held firmly to long-established notions of family formation and structure. Moreover, following the Baby M decision, jurisdictions across the country reaffirmed the judiciary’s commitment to traditional families by citing the

New Jersey Supreme Court’s decision when limiting surrogacy contracts. This commitment to the traditional family, evident in the Baby M New Jersey Supreme Court opinion, is also established in family law decisions controlling custody, adoption, and parental decision-making emerging in the late 1970s and 1980s.

Finally, scholars have long treated the emergence of the New Right as creating a binary worldview of “family values.” This dissertation demonstrates the need for a more nuanced understanding of the concept of family values in the United States. Baby M illustrates New Right conservatism did not produce a simple dichotomy between competing sets of mores centered on the family. It did not divide family values neatly into conservative versus progressive, prochoice versus prolife or comprehensive versus abstinence-only sex education. Some notions of family values transcended political, ideological and legal perspectives.

Accordingly, this dissertation employs an analytical framework conceptualized by

Alice Kessler-Harris in her fundamental study, In Pursuit of Equity: Women, Men and the

5 See Meyer v. Nebraska, 262 U.S. 390 (1923); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973). 5

Quest for Economic Citizenship in 20th-Century America. Discussing how policy and

‘legislation spoke to economic citizenship,’ Kessler-Harris wrote, “I want here to expand the lens—to see how even seemingly neutral policies like unemployment and old age insurance acted out gendered assumptions and to watch how these assumptions broke down the postwar years.”6 Likewise, I seek to understand how judicial rationale, seemingly neutral on its face with regards to family structure, “acted out” specific assumptions concerning the traditional nuclear family in the United States during the last quarter of the twentieth century. Similar to Kessler-Harris, I am not particularly interested in the sources of the policies themselves. The bases of law governing the family, along with accompanying assumptions of family structure, have been well documented by scholars. Instead, I seek to understand and explain how these policies manifested themselves in the newly created space of surrogacy contracts—as exemplified by the Baby M case.

In addition, this dissertation utilizes the theoretical lens articulated by historian

Marc Stein in Sexual Injustice: Supreme Court Decisions from Griswold to Roe. In evaluating Supreme Court decisions in cases involving sexual freedom, Stein suggests that contrary to ‘revisionists interpretations’ the justices developed “a sexual rights doctrine that was not broadly libertarian or egalitarian; instead, the doctrine affirmed the supremacy of adult, heterosexual, martial, monogamous, private, and procreative forms of sexual expression.”7 Consequently, Stein suggests that the Court’s rulings expressed a

6 Alice Kessler-Harris, In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in 20th-Century America (New York: Oxford University Press, 2001), 16.

6 heteronormative vision of sexual freedom that was much less ‘libertarian’ or ‘egalitarian’ than scholars have previously suggested. Similarly, I argue that the judicial system’s treatment of the Baby M case promoted a very precise vision of the American family – a vision of a married, middle-class, heterosexual couple, biologically related to their child.

Moreover, resembling Stein, I argue that the legal system’s structure and methodology constrained judicial decision-making in the Baby M case, allowing for an eventual legal determination promoting a status quo and largely static vision of the American family.

The Story of Baby M

The story of Baby M begins well before the case ever reached the American legal system. William and Elizabeth (Betsy) Stern delayed starting a family for several years in order to finish their graduate education and to ensure that they had the financial resources to support raising a child. However, by the time the Sterns were ready to start a family, they discovered that Betsy Stern suffered from multiple sclerosis. The Sterns, following the prevailing contemporary medical wisdom, holding that women with multiple sclerosis held a significantly elevated risk for serious medical complications resulting from pregnancy, including paralysis and even death, decided against Betsy carrying a child of their own. In the beginning, the couple searched for a way to have a child completely genetically related to both William and Betsy. However, the Sterns soon discovered that gestational surrogacy was not yet commercially available. As a

7 Marc Stein, Sexual Injustice: Supreme Court Decisions from Griswold to Roe (Chapel Hill: The University of North Carolina Press, 2010), 3. 7 result, the Sterns started to explore possible options for clinics offering surrogacy arrangements utilizing artificial insemination.

Discovering that they would have to pursue a traditional surrogacy arrangement, using artificial insemination to fertilize the surrogate’s ovum, the Sterns called the

Infertility Center of New York (ICNY). ICNY was the same facility that Noel Keane, the leading lawyer in surrogacy contracts, had founded. Keane became famous in the United

States for drafting the first surrogacy contract in 1976.8 During the early stages of his career, Noel Keane operated a quiet private practice in Dearborn, Michigan. Graduating with an undergraduate degree from Eastern Michigan University and a law degree from the University of Detroit, Keane settled around his family home in Dearborn.9 Shortly after drafting the first surrogacy agreement, Keane discovered that many couples were searching for services, such as, the drafting of surrogacy contracts. Moreover, he observed that the shortage of babies available for adoption created an increased demand for alternative solutions to infertility. Recognizing the business potential of the service,

Keane opened infertility centers in California, Indiana, Michigan, New York and

Nevada.10 By 1986, Keane’s practice and facilities generated over $600,000 in revenue.

This figure illustrates the demand and the increasing prevalence of surrogacy agreements

8 Lawrence Van Gelder, “Noel Keane, 58, Lawyer in Surrogate Mother Cases is Dead,” New York Times (New York, NY) January 28, 1997, http://www.nytimes.com/1997/01/28/nyregion/noel- keane-58-lawyer-in-surrogate-mother-cases-is-dead.html.

9 Ibid.

10 Ibid. 8 by the time the Sterns started to examine the possibility of entering into a surrogacy contract.

After receiving a brochure in the mail, the Sterns visited the Center. The brochure was very influential in persuading the Sterns that they had made the right decision in seeking a surrogate. William Stern identified two parts of the brochure that were especially convincing. The first section was located under a caption that read, “What is

Surrogate Parenting.” The brochure material described how a surrogate child was biologically related to the husband of the infertile couple, and the surrogate mother gave up all parental rights to the child at the time of delivery.11 The Sterns found this material comforting and persuasive as it allowed William to have a biological connection to the child, and Betsy would have the ability to adopt the child after it was carried to term. It was this desire to have a biological connection to the child that ultimately led William and Betsy to reject the possibility of adoption.

In addition to the first section of the brochure, a particular portion in the pamphlet entitled, “The Process,” persuaded the Sterns. This section described all of the services provided by the Center during the surrogacy process.12 The Sterns found this section

11 The actual language of the brochure read as follows, “[w]hen the female partner in a couple is unable for medical reasons to conceive and carry a child to term, surrogate parenting is a way for that couple to have a baby, who is a biological child of the husband. The procedure, itself, is straightforward. The couple contracts with a willing fertile female (the surrogate mother) who agrees to be artificially inseminated with the husband’s sperm, carry the pregnancy and at the time of delivery, relinquish all parental rights to the biological child and his father.” Testimony of William Stern, January 5, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 90.

12 The section entitled “The Process” contained the following paragraph, “First inquiry by letter or telephone, first visit the Center, meeting with the administrator and review of the surrogate files, registration, signing of contract with the Center and payment of ICNY fee, selection of surrogate, optional meeting with surrogate, surrogate’s physical examination, meeting with legal 9 informative in assisting their decision to enter a surrogacy contract. Moreover, the section described the possibility of meeting the surrogate mother. The Sterns had already discussed this possibility, and believed that it would be important to meet with any prospective surrogate mother. The Sterns were looking for reassurance that the motivations of the surrogate were well intentioned and that she was healthy.

Finding the Center’s literature appealing, the Sterns made an appointment with

Cheryl Threadgill, the Center’s administrator, in September. They met with Threadgill for about a half-hour to discuss the services provided by the Center and the value of surrogate parenting. Threadgill explained that the child would be biologically related to

William, and that Betsy would be able to adopt the child after its birth. During their meeting, the Sterns asked Threadgill about the women who typically signed up to be surrogate mothers. In particular, the Sterns wanted to know if the women who applied answered their questionnaires truthfully. This was imperative to the Sterns since they wanted to be certain that if they entered into an agreement with a potential surrogate mother, she would be appropriately screened and follow through with her part of the

“bargain.”

Threadgill indicated that the Center had found that most applicants answered their surveys candidly, and were dedicated to helping infertile couples experience parenthood.

representative and signing contract with surrogate, medical arrangements for artificial insemination of surrogate carried out by the Center, counseling for couple, Center’s personnel keep in touch with surrogate and her physicians during pregnancy and report to couple or couple has the option of maintaining direct contact with the surrogate, birth of baby, homecoming, legal adoption by wife.” Testimony of William Stern, January 5, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 91 - 92. 10

Moreover, the Center, Threadgill assured, conducted both medical and psychological testing on potential surrogate mothers after an infertile couple had selected a candidate.

By the end of the meeting with Cheryl Threadgill, the Sterns had decided to work with the Center and initiated a review of the surrogate files.

The costs of the services were expensive. The literature presented to the Sterns contained a dizzying array of expenses associated with a potential surrogacy agreement, including: advertising for a surrogate mother, the surrogate’s attorney’s fees, a medical exam for the surrogate mother, a psychiatric exam for the surrogate mother, a physician fee for semen analysis and six inseminations, maternity clothing for the surrogate mother, an adoption fee and blood tests to prove paternity. The total estimated cost for these services was $3,600. In addition to these charges, the Sterns would need to pay the

Infertility Center of New York the sum of $7,500 to cover services, such as, “legal representation, administration, scheduling and counseling.” Added to this charge was a

$1,000 fee for paternity verification if the surrogate happened to be married. Finally, the

Sterns would be obligated to pay a surrogate fee of $10,000. This fee would be placed in an escrow account until the surrogate (Mary Beth Whitehead) fulfilled her obligations under the surrogacy agreement. The total amount of estimated costs and expenditures for the surrogacy procedure was $22,100.13

13 Exhibit B, Summary of Costs, In the Matter of Baby M, 217 N.J. Super 313 (1987). According to the Bureau of Labor Statistics, the current adjusted value of the procedure is $49,926.43. For more information see http://www.bls.gov/data/inflation_calculator.htm.

After deciding on the Infertility Center of New York (ICNY), the Sterns signed an agreement on December 3, 1984, where the Center agreed to provide the names of potential surrogates, in exchange for, the Sterns paying a $7,500 fee. Following signing the contract, the Sterns spent the next three months looking over applicant folders in the

New York offices.14

Finally, after reviewing a number of applicants the Sterns found a potential suitor the following January. After making the arrangements to meet the prospective surrogate, the Sterns arrived on a Saturday morning only to have the potential surrogate call and cancel the meeting due to a broken pipe at home. It was after this episode that the Sterns became discouraged. They had examined nearly every applicant in the Center’s folder.

Crestfallen, the Sterns inquired with the Center if there were any other women they might consider. After deliberation, the Center suggested they consider a woman that had recently been working with another couple. It was later determined, that the husband from that other couple had a low sperm count and wasn’t a viable candidate for continuing with the surrogacy arrangement.

Following their conversation with the Center, the Sterns waited for the relationship between this new prospective surrogate and the other couple to be officially terminated. After its termination, the Sterns received a five-page dossier, in the mail, outlining candidate number 2037.15

14 Testimony of William Stern, January 5, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 96.

15 William Stern, in particular, found two sections of the dossier enlightening. First, there was the following question, “[w]hy do you want to get artificially inseminated, carry the child and then 12

After discussing the file with each other, the Sterns decided to pursue candidate number 2037. They phoned ICNY and requested the applicant’s name and telephone number, and they were informed applicant 2037 was named Mary Beth. At the time, they were not given a last name. After receiving this information, the Sterns called the telephone number provided by the Center. As William Stern recalled, it was approximately the third week in January 1985 when he connected with Mary Beth.

During the resulting phone call they agreed to meet at Victoria Station – a restaurant in

New Brunswick, New Jersey.

On a blustery, wintery Thursday in January, Bill and Betsy Stern set out to meet

Mary Beth and Richard (Rick) Whitehead in New Brunswick. During their previous telephone conversation, Bill and Mary Beth agreed that Mary Beth would wear either a red or brown sweater so that they could find each other in the restaurant. However, as it turned out, Mary Beth did not wear the sweater, and after a considerably longer search than they had anticipated they found each other after scouring the restaurant. During an approximately hour-long dinner, the Sterns and the Whiteheads discussed the surrogacy arrangement. As Bill Stern would later recollect, “[t]here was small talk and, if we introduced ourselves, at this point we hadn’t given our full names.”16 This omission, the

after delivery give the child to the biological father? To what extent is payment for services a necessary requirement for you? The applicant responded, “I would like for other human beings to experience the gift of life and the joys of parenthood. The payment will help subsidize my children’s college education. The second question read, “do you foresee any possible emotional reaction or problems to the surrogate mother procedure, which would be most likely to happen to you? Why?” Candidate 2037 responded, “I have been blessed with two happy, healthy children and a loving husband. I am content with my life and would not have any emotional problems.” Testimony of William Stern, January 5, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 111.

Sterns decision not to be open about their last name, would later become very important to Mary Beth Whitehead as she would connect it to a disparity in power between the parties.17

At the meeting in Victoria Station, the couples discussed the urgency of the situation if they wanted to pursue an agreement with each other. Mary Beth conveyed to the Sterns that “her time of the month when she would be fertile would be coming up in the next two weeks.”18 Later, during the trial, Bill Stern testified, “and so, in the early part of February—I don’t know, February 1st or 2nd, anyways Mary Beth had called and indicated that her temperature had dropped or risen, I don’t know how it works anymore.”19 Shortly thereafter, knowing that they wanted to start working with Mary

Beth Whitehead as soon as possible, the Sterns finalized the surrogacy agreement with her and made the final arrangements to begin the artificial inseminations.

The first artificial insemination took place on February 6, 1987. Over the next several months, Bill Stern traveled to New York City to have IDANT fertility services artificially inseminate Mary Beth Whitehead with his sperm. On ten of those occasions,

16 In the Matter of Baby M, 217 N.J. Super 313 (1987), 116.

17 Bill Stern would claim during his testimony that Mary Beth Whitehead “felt that that was unfair that they would know her last name, but she didn’t know their last name, so there was an unequal relationship there and she felt that anybody who she gave her child to, it was only fair that she knew who she was working with and she was disappointed.” Testimony of William Stern, January 5, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 117. The Sterns agreed that it was unfair.

18 Testimony of William Stern, January 5, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 124.

19 To which his own attorney replied, during direct examination, “[a]nd you’re a scientist?” Ibid., 124 – 125. 14

Bill Stern met Mary Beth halfway in between her house and the location of the artificial insemination. After approximately six artificial inseminations, Mary Beth Whitehead and

Betsy Stern concluded that with no success they were not impressed with IDANT’s facilities. Moreover, they had discovered that IDANT had miscalculated Mary Beth’s peak fertility on, at least, one occasion. As a result, Betsy and Mary Beth agreed that

Whitehead would start using the office of Doctor Mary Wilson – whom was familiar to

Whitehead.20 Betsy and Mary Beth held more confidence in Doctor Wilson. For one,

Wilson informed them that a product existed on the market called Ovu-Stick Kit, which was more useful than attempting to use Mary Beth’s temperature to determine ovulation.

For another reason, colleagues in the medical profession gave Betsy positive recommendations concerning Doctor Wilson.

Eventually, the switch in facilities and persistence paid off. The artificial insemination of July 2, 1985 was successful and Mary Beth Whitehead became pregnant with Bill Stern’s child. The Sterns were delighted. Quickly after the Stern’s were informed that Mary Beth was pregnant, they began preparing for the new baby. The

Sterns swiftly sought out an Englewood Cliff’s attorney, named Bruce Morrissey, to change their wills.21 New provisions would provide for the yet-to-be-born child in the event that anything should happen to either Bill or Betsy Stern.

20 Testimony of William Stern, January 5, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 142.

21 Ibid., 144. 15

The child Mary Beth Whitehead conceived was born on Thursday, March 27,

1986. Betsy Stern called Bill at work to inform him that the baby had been born and that it was a girl. Bill recounted during the trial, “I hung up the phone, and I was stunned. I didn’t know what to say next. I was so excited. And then all of a sudden I just yelled out

‘I’m a father. It’s a girl.’”22 The Sterns were elated with the birth, but Mary Beth

Whitehead was more conflicted. If the Sterns were more vocal about the birth of the child, born of a surrogacy contract, Mary Beth Whitehead was more reticent. Prior to the birth, Mary Beth had asked the Sterns to keep the fact that the child was to be given up to the Sterns a secret – even from hospital staff.

That afternoon, the Sterns drove to Monmouth Hospital, in Long Branch, New

Jersey, to see the newborn child during visiting hours. When the Sterns arrived at the hospital, Mary Beth was in the hallway walking with some of her friends. She directed the Sterns to the nursery and a bassinet, where the Sterns viewed for the first time the baby girl they named Melissa. The Sterns had previously agreed with Mary Beth that they would pick up Melissa from Mary Beth’s home, since she did not want the surrogacy arrangement to become “well-known.”

That Saturday, the Sterns once again visited Mary Beth and Melissa in the hospital. Along with William and Betsy Stern, Mary Beth was joined by her husband

Rick. The four talked about the new baby. When the subject of the child’s name came up, Betsy said to Mary Beth, “[w]e finally decided on a middle name for Melissa. . .

22 Testimony of William Stern, January 5, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 13.

16 we’re going to call her Elizabeth.” It was at this moment that Mary Beth broke down and started to sob, telling the Sterns, “I don’t know if I can do this. . . she looks just like

Tuesday.”23 Betsy tried to comfort Mary Beth, telling her that she would be able to visit the baby. After Mary Beth had composed herself, the Sterns then arranged to pick up

Melissa the following day.

The following day, March 30th, the Sterns picked up the baby girl and headed for home. When Bill and Betsy arrived, friends had already found their way over to the

Stern’s home and started taking pictures of the newly formed family. It was a celebratory day for the Sterns. Yet, no one celebrating with the Sterns could have foreseen the events set to transpire in just under twenty-four hours.

The next day, the Sterns received a phone call at 7:30 in the morning. It was

Mary Beth, and she wanted to come and visit Melissa. Arriving around 11:00 a.m., Mary

Beth and her sister quickly went back to the room the Sterns had redecorated. When

Mary Beth returned, she was crying. As Bill Stern would later remember, “Mary Beth was talking about how she during the night was screaming for the baby. She was telling us how she couldn’t touch Tuesday anymore; how she couldn’t live without her.”24 Bill

Stern would portray the conversation as focusing on Mary Beth’s feelings of grief and loss. The Sterns, along with Mary Beth’s sister Joanne, again tried to comfort her, relaying Bill’s struggle with losing his father when he was only twelve and Joanne’s own

23 Testimony of William Stern, January 5, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 21.

24 Ibid., 26. 17 experience with a miscarriage.25 Little consoled Mary Beth, and she grew more upset and despondent as the day wore on.

After considering their options, the Sterns agreed to let Mary Beth take Melissa home with her and Joanne. Mary Beth would later write in her memoir that she felt badly for Bill Stern, knowing already that she would not be able to turn over the child she was so attached to. She wrote that she told the Sterns, “[g]ive me a week, just a week.”26

Mary Beth would later recall that she believed the Sterns would view this as reasonable.

At the same time, according to Mary Beth, Betsy Stern did not respond well to the emerging situation. In continuing to describe the proceedings, Mary Beth wrote, “Betsy picked up the baby’s clothes and angrily handed them to me. ‘I won’t be needing these anymore,’ she said as she put them in my car.”27

Over the next twelve days, the Sterns tried multiple times to have Mary Beth return Melissa. Unbeknownst to the Sterns, Mary Beth had already telephoned her parents informing them of her decision to keep the child. Mary Beth would tell her parents, “I explained that genetically Sara (Mary Beth’s name for Melissa) was my daughter and not the product of Betsy’s egg, as I had originally thought.”28 Moreover, the following day, April 2, Mary Beth boarded a flight to Florida to visit her parents in

25 The Sterns would later describe Mary Beth as inconsolable and possibly suicidal. See Testimony of William Stern, January 5, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 28.

26 Mary Beth Whitehead, A Mother’s Story: The Truth About the Baby M Case (New York: St. Martin’s Press, 1989), 31.

27 Ibid.

28 Ibid., 32. 18 person. On two specific occasions, during this period, Bill Stern spoke directly to Mary

Beth. Finally, on Saturday, April 12, 1986, the Sterns called Mary Beth Whitehead at

6:00 a.m. and were able to set up a time to meet her in her home – Mary Beth having previously returned to New Jersey after visiting with her parents.29 It was at that meeting, later in the day, that Mary Beth finally informed the Sterns that she could not part with her daughter, and would not be able to return Sara to the Sterns.30

Over the next several weeks the Sterns did not contact the Whiteheads. Yet, the

Sterns, without the Whitehead’s knowledge, started to move the dispute into the legal system. On May 2, 1986, a Florida court approved Bill Stern’s petition to be named

Melissa’s legal father.31 This order would later become extraordinarily relevant to Mary

Beth as the case unfolded.

On May 5th, the Sterns arrived at the Whitehead residence with police officers. At first, Mary Beth was sitting, on her couch, nursing the newborn child. Upon seeing the

29 Testimony of Mary Beth Whitehead, January 8, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 74.

30 Testimony of William Stern, January 5, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 29. In Mary Beth’s memoir, she writes, “First, the color drained from Betsy’s face. Then she became violently angry. It was my first taste of Betsy Stern when she didn’t get her way. ‘I’m calling Noel Keane,’ she shouted. ‘I’m going to make you talk to him.’ ‘Noel Keane is your attorney, not mine,’ I answered as calmly as I could, referring to the fact that Noel Keane always represented the couple’s interests. ‘Besides,’ I added, ‘I’ve already called the lawyer from the Center, and he’s assured me that nobody can take my baby away.” Mary Beth Whitehead, A Mother’s Story: The Truth About the Baby M Case (New York: St. Martin’s Press, 1989), 35. This account seems misleading as it portrays Mary Beth as very assertive and conflicts with Mary Beth’s later assertions that she didn’t know what to do and was too upset to think. She also claims that Betsy Stern physically attacked her. Moreover, she claimed that it was only after she threatened to call the police that the Sterns left.

31 The Florida courts were used by Keane, claims Mary Beth, because of the lax procedures. See Mary Beth Whitehead, A Mother’s Story: The Truth About the Baby M Case (New York: St. Martin’s Press, 1989), 41. 19

Sterns approaching, she jumped up and bolted out of the back door. Mary Beth would later view those events quite differently, testifying that she was standing, in her backyard, when she was first approached by, as many as, five police officers. As Mary Beth recalled, “I begged to Bill, ‘[p]lease, don’t do this, please Bill, stop it, Bill, please stop it.” A critical fact, unknown to Mary Beth at the time was that the Sterns had already obtained a court order32 for the temporary custody of the child partially based on a

Florida paternity petition granted on April 2nd.

The scene was chaotic. Whitehead wrote later, “[b]y this time there were four cars on my lawn. Strangers were standing on the curb; they probably thought someone had been murdered.”33 The show of force did seem disproportionate to the controversy at issue. The court order referred to the child as Melissa; however, the Whiteheads produced a valid birth certificate for the officers with Sara Elizabeth Whitehead neatly printed under the heading “name.” In the midst of the confusion, the Whiteheads sought the comfort of their bedroom. While Mary Beth stayed in the Whitehead’s bedroom,

Rick walked around the outside of the house. As officers were discussing the confusing details in the Whitehead’s living room, Mary Beth handed Rick the child through an open window. Rick Whitehead quickly left the property. With the child now missing and as a

32 The court order was an ex-parte application to “show cause why this court should not issue an order for a summary judgment to enforce a surrogate parenting contract.” Also a verified complaint was filed seeking to enforce. In the Matter of Baby M, 217 N.J. Super 313 (1987), 326

33 Mary Beth Whitehead, A Mother’s Story: The Truth About the Baby M Case (New York: St. Martin’s Press, 1989), 46. 20 result of Mary Beth refusing to turn over the baby, the police officers decided to detain her, placing her in handcuffs in the backseat of a squad car.34

The following day, Mary Beth again left New Jersey for her parents’ home in

Florida – flying out of the Philadelphia airport for fear the police were watching Newark.

As she described it, she was looking to try to find a way to “settle this up.”35 Later describing this period of her life as living as a “fugitive,” Mary Beth indeed went into hiding. Not long after the Whiteheads arrived in Florida, a neighbor of Mary Beth’s parents telephoned to let Rick and her know that private investigators were looking for them.36 At the same time, Whitehead complained of feeling physically weak, but she ignored the physical symptoms due to the confusion generated from all of the emotional turmoil surrounding the surrogacy. In addition, in the days following her departure from

New Jersey, Mary Beth started searching for a lawyer to handle her case. Few would even entertain the idea of taking her as a client, and the remaining attorneys were charging too much for their services. Desperate, Mary Beth also contacted political representatives, but none could offer her help. As she would explain, “I felt like I needed somebody legally to tell me what my rights were, and I couldn’t find anybody. I tried, I just couldn’t.”37

34 Testimony of Mary Beth Whitehead, January 8, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 85.

35 Testimony of Mary Beth Whitehead, February 9, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 24.

36 Mary Beth Whitehead, A Mother’s Story: The Truth About the Baby M Case (New York: St. Martin’s Press, 1989), 52.

Finally, with the help of her friend, Barbara Andersen, Mary Beth was able to secure an attorney, Alan Cornblatt, to assist her. The Whiteheads already were preparing to return to New Jersey when they first contacted Mr. Cornblatt. Following their conversation, the Whiteheads travelled to the west coast of Florida to say goodbye to some “old friends.”38 They were planning on traveling back to New Jersey, following their short visit. It was at that time that Mary Beth became very ill. After finding Mary

Beth’s temperature to be an astounding 105 degrees, Rick Whitehead rushed his wife to

Martin Memorial Hospital in Steward, Florida.39 Mary Beth would then struggle to remain conscious. She was diagnosed with toxic encephalopathy with pyelonephritis.

Mary Beth Whitehead was in the hospital for eight days, much of the time in intensive care. While Mary Beth lay recovering in the hospital, the Sterns were able to secure another court order on July 30, 1986. This new order permitted Florida law enforcement to turn the child over to the Sterns. On July 31, 1986, police officers entered the home of Mary Beth Whitehead’s parents through an open garage door. While Rick was sleeping, after being up late with Mary Beth at the hospital, the officers grabbed

Baby M (Melissa/Sara) and hurried her outside to a waiting car. Since the parties often referred to the child by the respective parents’ chosen name, this dissertation will refer to

37 Testimony of Mary Beth Whitehead, February 9, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 25.

38 Mary Beth Whitehead, A Mother’s Story: The Truth About the Baby M Case (New York: St. Martin’s Press, 1989), 57.

39 Ibid., 60. 22 the child by its court appointed pseudonym “Baby M,” even as the parties referred to the child as either Sara or Melissa.

In her memoir, Mary Beth recalled, “that evening an article appeared in the St.

Petersburg Times.”40 Even as Mary Beth had pleaded for intervention in the weeks before, it was only after the incident in Florida that the media and news outlets started paying attention to the case. As Mary Beth would describe, “[r]eporters were calling from all over the country. TV crews began to arrive at the hospital. NBC came first, then ABC and CBS.”41 It took Mary Beth several weeks to recover. When she was finally able to return to New Jersey, she took a flight with her daughter Tuesday. As soon as she arrived, she went straight to court and met with her new attorney, Alan

Grosman. The meeting in the courtroom would establish little for either the Sterns or the

Whiteheads. After scolding a cameraman for filming the parties in the courtroom, Judge

Harvey Sorkow only addressed one issue – the appointment of a guardian ad litem to look after the interests of the disputed child. Mary Beth Whitehead would later admit to being confused and distressed about the quickness of the relatively non-substantive proceeding. She would write,

[w]e couldn’t have been in the courtroom for more than five minutes when suddenly, before I had a chance to speak or realize what was happening, the judge dismissed us and walked out of the courtroom. He never even addressed the issue of when I would see Sara.42

40 Mary Beth Whitehead, A Mother’s Story: The Truth About the Baby M Case (New York: St. Martin’s Press, 1989), 62.

41 Ibid.

42 Ibid., 99. 23

It would take several more weeks after that original court appearance for Mary Beth

Whitehead to visit with her daughter. The first visit took place at the Conklin home – a facility for trouble youth. As Mary Beth remembered during trial, “[a]t the first time I think I went, there w[ere] four guards, Lorraine Abraham, Mrs. Miller and I think that’s it.”43 It was a setting unlike anything Mary Beth Whitehead had ever experienced, and unlike anything she could have ever have imagined.

In the following months and years, the Sterns and the Whiteheads would engage in a fierce legal battle over the custody rights to Baby M. However, the litigation would influence more than just the lives of the Sterns, the Whiteheads and Baby M. As this dissertation illustrates, the Baby M trial and accompanying legal decisions had a far greater impact than simply the case law and public policy choices of the State of New

Jersey. The Baby M controversy captured the nation’s attention, and the issues involved in the case highlighted broader societal problems and concerns. The Baby M litigation demonstrated the ways American families were changing. Moreover, it provided a lens through which to view evolving definitions regarding the meaning of motherhood and fatherhood in the United States. While Americans were increasingly aware and concerned with changes to the American economy and labor force, the Baby M case demonstrated a growing class divide in modern America. Finally, the Baby M case showed the tensions between biomedical advance and social constructions of morality.

The rapid advances in reproductive technology outpaced the capacity of legal institutions

43 Testimony of Mary Beth Whitehead, February 9, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 38 – 39. 24 and policymakers to construct workable regulatory regimes. The Baby M trial demonstrated the lack of regulatory control, and the struggle to impose some form of governing structure on fertility research.

Chapter 1, M is for Money, explores how issues associated with assisted reproductive technology (ART) highlighted a growing class divide in the United States.

As major networks and newspapers carried news of the Baby M controversy across the country, many Americans took notice of the differences in opportunity afforded by wealth. For many, what made Baby M different from the ability to afford luxury goods was its connection to family formation. Unlike the purchasing of luxury automobiles, the notion that some Americans were able to use their wealth to receive medical treatment and ultimately conceive children, while others were left to struggle with sterility and infertility was seen as a violation of morality rather than mere economic inequality. M is for Money studies how the issue of class was discussed in connection to the Baby M case in broader society through public opinion polls, newspaper editorials and scholarly articles. Moreover, this chapter explores how both the trial and appellate courts struggled to account for perceptions of economic inequality.

Chapter 2, M is for Motherhood, discusses changing understandings of what constituted motherhood in the United States, and how these changes influenced the court proceedings in the Baby M litigation. Anchored by the stories of both Mary Beth

Whitehead and Elizabeth Stern, M is for Motherhood utilizes newspaper coverage, trial transcripts, archival materials, and judicial opinions to demonstrate the evolutionary and changing opinions associated with motherhood in the United States, particularly in the

25 context of surrogate motherhood. Moreover, M is for Motherhood investigates how changes to social perceptions of motherhood came into tension with existing interpretive frameworks employed by courts. Finally, this chapter illustrates how the Baby M decision, along with its associated publicity, reified public opinion regarding the conceptual boundaries of motherhood in the United States.

Chapter 3, M is for Masculinity, is biographically centered on the lesser-known figures of the Baby M litigation – William Stern and Richard Whitehead. While scholars have more thoroughly explored the impact of Baby M on feminist theory and the legal rights of women, few have studied how the decisions influenced men in relationships with children resulting from assisted reproductive technologies. The Baby M case provides a valuable opportunity to study and assess how masculinity is interpreted in

American society in relation to fatherhood and assisted reproductive technology.

Newspapers and editorials across the United States raised questions regarding Richard

Whitehead’s masculinity. Why would a husband allow his wife to be impregnated by another man? What does fertility treatment say about William Stern? Activists and newspaper columnists openly posed these questions during the Baby M trial. This chapter explores how the trial process was influenced by these debates. Moreover, M is for Masculinity examines how the Baby M case spurred public debate concerning fatherhood, American society and the law.

Chapter 4, M is for Modernity, places the Baby M controversy in a longer struggle in American society to come to terms with modernity. For decades, scholars have been studying the challenges posed by scientific advance. M is for Modernity explores the

26 origins of American society’s attempts to exert greater controls on medical research.

Tracing the relationship between fertility, medical science and the law to the progressive period, this chapter examines the growing body of law governing medical research through the genesis of bioethics following the Second World War and the revelations of

Nazi experimentation at Nuremberg. M is for Modernity then explores the relationship between legal institutions and biomedical advances in the postwar period – institutions and policies often struggling to keep pace with rapid medical advances. The Baby M case illustrates how the law was often employed through judicial decisions as an attempt to rein in existing practices exceeding society’s expectations of acceptable policy choices.

Finally, this chapter concludes where it begins, examining how current policies, influenced by the Baby M case, fail to regulate the very same problems originating in the crucible that formed modern bioethics – eugenics. Today, dozens of fertility treatment centers and sperm banks fall outside the scope of meaningful regulatory control. As a result, through marketing, targeted donors and market forces the vast majority of donors are white and Anglo-Saxon, producing a wider eugenic effect on contemporary fertility treatment.

Chapter 5, M is for Model Regulations, examines the regulatory environment fashioned by the Baby M litigation. In this regard, M is for Model Regulations studies the evolutionary process of regulating surrogacy in the United States. The chapter traces the law’s attempt to regulate fertility treatment by examining attempts at model law formation and limited legislative development in the United States. An example of how the law has been forced to engage with this evolutionary process, redefining familial

27 relationships and adapting previously established doctrine may been seen in the Uniform

Parentage Act (UPA). The National Conference of Commissioners of Uniform State

Laws (NCCUSL) originally drafted the UPA in 1973. State legislatures were subsequently free to adopt these model statutes designed to craft state policy when defining and litigating parental rights. The establishment of parental rights raises a host of family law issues – many issues that include previously established doctrine that must be modified to account for the changes wrought by biomedical advance. For example, issues of child custody, child support, visitation rights, social security benefits and inheritance may all be impacted by parental determinations. As the Uniform Parentage

Act of 2000 illustrates, issues in family law have been greatly impacted by the growing use of assisted reproductive technologies as changes were adopted to account for the vast advances that had occurred. M is for Model Regulations examines how the Baby M decision influenced subsequent debate within regulatory agencies and drafters of model legislation by examining committee notes, published reports, published comments and final versions of drafted legislation. Moreover, to complement these sources, M is for

Model Regulations utilizes legislative conferences summoned in the months following the Baby M decisions. These conferences often were organized by state legislators seeking to draft legislation confronting the new reproductive technologies and their implications.

In an environment of societal unrest and a dynamic array of social movements in the 1960s and 1970s, issues involving control over human reproduction became linked with the stability of American society and the formulation of legislation, administrative

28 rules and judicial decisions governing not only methods of preventing pregnancy, but also new technologies promising to reduce infertility. In the chapters that follow, this dissertation examines this swiftly advancing knowledge, particularly in the area of surrogate motherhood, and the fresh moral dilemmas it created. Moreover, the structure of the American family was changing. White middle-class families still predominately envisioned a married couple, a male breadwinner and a homemaker. However, this vision of American family life was challenged by the introduction of different means to control and even engineer fertility. The Baby M case, at its most fundamental level, allowed Americans to consider and challenge their existing definitions of motherhood, fatherhood and the American family.

Chapter 1: M is for Money

Until recently, sex, marriage and childbearing all went together, bonded by the glue of biological necessity and stern social sanctions. During the past 25 years, the twin forces of sexual liberation and advances in reproductive technology have pried the sides of the triangle apart. One result has been that parenthood has become something that science can manufacture and money can buy. Courts in the future may not be able to resist the aching desires of infertile couples for children at any cost.1 Charlotte Allen, The Wall Street Journal

By the mid to late 1980s, as the Baby M litigation started working its way through the American legal system, the New Deal order, long under attack, was in full retreat.2

The economic stability enjoyed by large numbers of Americans in the postwar period had all but completely disappeared. As the Baby M trial commenced, the gap between the wealthiest and poorest Americans neared record levels. Left behind in the wake of the high tide of New Deal liberal reforms was a working class with stagnating or declining incomes. Factories that had once littered the steel belt, now lay rusting. Moreover, the

1 Charlotte Allen, “When Motherhood is for Sale,” Wall Street Journal, January 8, 1991.

2 Scholarship on the changing postwar American economy is substantial. For some notable examples, see Steve Fraser and Gary Gerstle, The Rise and Fall of the New Deal Order, 1930 – 1980 (Princeton: Princeton University Press, 1989); Melvyn Dubofsky, The State and Labor in Modern America (Chapel Hill: University of North Carolina Press, 1994); and Robert Zeiger, The CIO, 1935 – 1955 (Chapel Hill: University of North Carolina Press, 1995).

30 union jobs that had lifted so many Americans to middle class prosperity were disappearing.3

It is at this moment, when the middle-class lifestyle was threatened for many, that the Baby M case captured the nation’s attention. Why was a legal controversy from New

Jersey reported in news outlets from New York City to Los Angeles? After all, at its heart, the Baby M case was largely concerned with the parental custody rights of a minor child. Further, with rising divorce rates, custody battles were commonplace in towns and cities across the country. Without question, the nature of the dispute in a surrogacy contract case, in other words the buying and selling of a child, elevated Baby M to national attention in ways other custody disputes simply did not capture. Another reason, however, is that the case called attention to the growing divide in income and economic opportunity in the United States. Just as the high paying union jobs were disappearing,

Baby M demonstrated exactly how far apart the gap in economic opportunity had truly become in the United States. Not only were jobs, income and education affected, but

Baby M revealed that even family formation could exist for those in the wealthiest income brackets, while eluding those subsisting at the lowest.

3 Scholars have long documented the decline of unionized employment and the geographical shift in manufacturing jobs. For some examples, see Jefferson Cowie, Capital Moves: RCA’s Seventy- Year Quest for Cheap Labor (New York: The New Press, 1999); Barry Bluestone and Harrison Bennet, The Deindustrialization of America: Plant Closings, Community Abandonment, and the Dismantling of Basic Industry (New York: Basic Books, 1982); James Cobb, The Selling of the South: The Southern Crusade for Industrial Development, 1936 – 1990 (Urbana: University of Illinois Press, 19930; Ruth Milkman, Farewell to the Factory: Auto Workers in the Late Twentieth Century (Berkeley: University of California Press, 1997); and Bruce Schulman, From Cotton Belt to Sunbelt: Economic Development, and the Transformation of the South, 1938 – 1980 (New York: Oxford University Press, 1991). 31

This chapter explores the ways that money influenced the Baby M case. Money, and the ability that one’s economic class provides, affected the course of the litigation.

While it is impossible to demonstrate the degree to which the Stern’s or the Whitehead’s economic class dictated the overall result of the lawsuit, the record clearly suggests that it occupied the minds of the attorneys, litigants, and judges working on the case, as well as, the journalists and public that consumed it. Moreover, this chapter illuminates how the

Baby M case focused the attention of journalists and the public on broader problems associated with surrogacy and economic inequality. Prior to the litigation, few

Americans were even aware of the practice of paid surrogacy, let alone the potential that existed for exploitation from contractual reproductive labor. In this sense, Baby M provided the catalyst for a broader examination of the relationship between women, class and reproduction. Finally, this chapter examines the debate over how and if society should regulate the practice of compensated surrogacy. The publicity involved in the

Baby M case created an intense public discussion centering on how American society should determine the boundaries of the practice. Some believed that legal institutions should be minimally involved in the regulation of paid surrogacy. For those advocating this position, market forces would determine how, and if, the practice would be restricted in the United States.

These themes are studied under the umbrella of how rapid changes in reproductive technology changed the way American’s viewed the relationship between money, class and parenthood. As Charlotte Allen stated in a Wall Street Journal article published a few years after the Baby M case was decided, “[o]ne result has been that

32 parenthood has become something that science can manufacture and money can buy.”4

The influence of money on the Baby M case, and more broadly on paid surrogacy, in the years surrounding the Baby M litigation is at the very heart of this chapter.

Almost from the moment the litigation hit the court system, class politics became injected into the Baby M case. In many ways, the facts of the case were appropriate for a larger discussion by the opposing parties, the media and social activists of economic class and exploitation. The economic and educational differences between the two parties could not have been greater. The Sterns were highly educated, both holding graduate degrees in the sciences, with Elizabeth Stern also possessing a medical degree. In contrast, Mary Beth Whitehead dropped out of high school at the age of fifteen.

Furthermore, the Sterns held high paying jobs, William Stern as a research chemist and

Elizabeth Stern was employed as a professor of pediatrics at the Albert Einstein School of

Medicine, with a combined annual income approaching $100,000.5 In contrast, Mary

Beth Whitehead was a stay-at-home mother, and her husband was a unionized sanitation worker. The Whitehead’s annual income only approached one-third of the Stern’s yearly salaries. Accordingly, the very difference in the Sterns and Mary Beth Whitehead’s education and employment history created a case well-suited to demonstrating modern issues associated with class disparity.

4 Charlotte Allen, “When Motherhood is for Sale,” Wall Street Journal, January 8, 1991.

5 According to the Bureau of Labor Statistics, the Stern’s annual income of approximately $100,000 would be the equivalent of a joint income of $205,728 in 2015. See http://www.bls.gov/data/inflation_calculator.htm.

Furthermore, the surrogacy contract itself demonstrated a wide divergence in income, reflecting the dynamics of class in America. According to the contract signed by the Sterns and Whitehead, Mary Beth was to be paid $10,0006 to carry the child to term and deliver it to the Sterns. To many, the arrangement signaled nothing less than class exploitation. William and Elizabeth Stern were capable of spending $10,000, a sum slightly less than half of the Whitehead’s annual income, in order to pay an unrelated woman to undertake nine months of pregnancy and give birth to their child. Surely, many argued, a woman would be unlikely to undertake such a dramatic and potentially hazardous health decision if the money did not induce her to do so. Moreover, what woman with financial means would agree to such a contract if she did not need the income? Succinctly, the issue of class exploitation became central to the public debate surrounding the Baby M case.

In addition, the news coverage of the Baby M trial quickly picked up on the differences depicted by the attorneys and expert witnesses. Yet, the manner in which the core issues of the case were discussed often deflected and concealed the underlying divisions separating the parties. The economic disparity between the Whiteheads and the

Sterns was rarely mentioned directly. Instead, the attorneys and psychologists utilized legal constructions along with legal terms of art as a means of discussing the importance that economic differences had on the case without overtly discussing the Sterns and the

Whiteheads socioeconomic position in open court. Ellen Goodman discussed the role

6 In terms of comparison, the $10,000 fee for Mary Beth Whitehead would be roughly $20,572.80 in 2015. For more information on adjustment of costs to reflect inflation, see the Bureau of Labor Statistics at http://www.bls.gov/data/inflation_calculator.htm. 34 played by money and socioeconomic background in the Baby M case in an article for the

Washington Post,

[a]s this test case on surrogate mothering shifts from contracts to custody, from the conflicting rights of the parents to the best interest of the child, there is barely even a veiled message about the role money may play in its outcome. People are testifying and behaving as if class—a dirty word in the American language—or socioeconomic background, if you prefer, is irrelevant.7

Of course, Ellen Goodman’s assertion wasn’t entirely true. Class was not treated as irrelevant; rather attorneys, Judge Sorkow, and even the media used coded language to obscure the true nature of the courtroom discussion. Class was playing a leading role in the Baby M litigation – it just went by another name. Goodman would concede, in the same article, “[i]t is the one unmentionable word. The lawyers don’t talk about it directly. The parents behave as if it has no bearing. The media refer to it only obliquely.

But in the Baby M trial, M stands for money.”8 In many ways, “M” did stand for money.

Attorneys, Judge Sorkow and commentators often used a pseudonym for the discussion of money – “the best interest of the child.”

In this regard, the media coverage of Baby M reflected the trial’s reliance on expert witness testimony. Additionally, the careful construction of a judicial decision devoid of class started to unravel in the reporting of the trial and associated news commentary. Journalists and commentators started pulling at the socioeconomic threads exposed by courtroom proceedings. Ellen Goodman observed, “[t]he lawyers do not

7 Ellen Goodman, “Baby M-M for Money,” The Washington Post, February 17, 1987.

8 Ibid. 35 bring in economists to describe the difference between the Whiteheads and the Sterns.

That would be too crass. They bring in psychologists.”9 Indeed, the foundation of “best interest of the child” standard in the Baby M case rested on socioeconomic status. Many of the variables articulated by the lawyers, experts and Judge Sorkow were, in some capacity, a reflection of the Sterns and Mary Beth Whitehead’s socioeconomic background. Goodman continued, “[i]n a courtroom that is inundated with lawyers and judges, MDs and PhDs, the Whiteheads [were] simply outclassed.”10 In this manner, the public clearly saw evidence of how class now could determine the ability to access alternative means of family formation.

White working class anxiety over declining incomes and scarce employment opportunities was projected into the media’s coverage of the Baby M case. If Ellen

Goodman would describe the Whitehead’s as “outclassed,” others would reference the disparity in terms of a contest where the odds were decidedly in favor of one party. As one columnist wrote, “[i]t is no contest on paper between the two couples. William Stern is a biochemist, Richard Whitehead is a garbage-collector; Elizabeth Stern is a pediatrician who has asserted control over her life.”11 Again, the reference to the Sterns and Whitehead’s type of employment spoke to the differences associated with economic class and the privileges, or lack thereof, associated with it.

Class and Custody:

9 Ellen Goodman, “Baby M-M for Money,” The Washington Post, February 17, 1987.

10 Ibid.

11 Mary McGrory, “Dispensing Pain in the Baby M Case,” The Washington Post, March 17, 1987. 36

How Money Shaped the Baby Litigation

If the news media understood the case as a reflection of class disparity in the

United States, the general public likewise read class into the Baby M controversy. During the trial, an engaged public wrote letters to editors referencing the class differences between the Sterns and Mary Beth Whitehead. Additionally, Mary Beth Whitehead would write shortly after the case concluded that class played a large role in the Stern’s portrayal of her during the trial, and in her mind, the ultimate resolution of the case.

Moreover, readers of newspapers quickly distilled the ways in which economic opportunity and class in the United States informed the Baby M litigation. As Joan Seaz, a retired flight attendant from Tenafly, New Jersey said, “[f]rom the viewpoint of having read the articles in the paper I felt very sorry for Mary Beth Whitehead. I had the idea that the Sterns, you know, were highly educated and affluent, and that this wasn’t such a big deal, that they could always do it again.”12 Seaz not only understood that a stark contrast existed between the Sterns and Mary Beth Whitehead, but that this economic disparity was legally meaningful. In many ways, the Baby M lawsuit, and the public controversy surrounding it, provided a site of contestation to debate economic

(in)equality and class in America. Average citizens, removed from the culture of daily discussions of public policy and legal actions, were made aware of the groundbreaking case arising in New Jersey and how class was encapsulated in the law governing families.

12 Elizabeth Mehren, “New Jersey’s Baby M Trial – The View from the Bleachers,” The Los Angeles Times, February 12, 1987. 37

The issue of class was plainly embedded in the trial phase of the Baby M litigation. While the trial was divided into two primary areas of legal dispute, the enforceability of the contract itself and the eventual custody of the child, the question of class was a central factor in the attorneys’ discussions and the testimony of expert witnesses. The debate surrounding these issues was often masked by the language employed by attorneys in an attempt to elevate the class differences between the Sterns and the Whiteheads into a discussion of legally significant questions pertinent to the eventual outcome of the case. Accordingly, when discussing the class distinctions between the Sterns and the Whiteheads, attorneys would formulate the discussion in terms of the “best interest” of Baby M. In doing so, it allowed counsel for the Sterns to paint the picture of two very different lives for the child. One life would be filled with opportunity and exploration. The child could be afforded the financial means to succeed.

She would have a home with stability. The other life would be less certain. The financial support for her wellbeing wouldn’t be as strong, and the ability of her parents to afford education and give her the same opportunities as the Sterns would be in question. In arguing their case concerning the best interest of the child, attorneys for both parties utilized psychologists and expert witnesses to portray the living conditions of the Sterns and the Whiteheads, as well as, their views on money and education.

Class and money were of particular emphasis in the custody phase of the trial. As referenced above, several psychologists testified about the households of both families.

A central concern for many of the expert witnesses was the stability of the home.

Concerns regarding stability ranged from the number of times a family might need to

38 move or relocate to the ability of the couple to financially afford to provide basic levels of care for their children. As such, attorneys arguing for the Sterns utilized the language of the “best interest of the child” to portray the Whiteheads as members of an economic class whose financial position created instability in the home. In discussing the permanence and strength of the Whitehead’s household, Dr. Lee Salk described the stability issues in the following manner,

[t]hey certainly seem to surround the Whitehead family, concerning Mr. Whitehead’s difficulties with drinking, driving while intoxicated, his problems with alcohol; the fact that Mrs. Whitehead herself has had difficulties and has in many ways surmounted some of these obstacles, but it seems to me, that even the current situation is one where there is a great deal of instability and where the social environment seems to be affected by things that are not settled.13

In this manner, Dr. Salk portrayed a picture of the Whitehead home as unstable and one with an increased likelihood of rupturing as a result of the family’s problems. These problems were often characterized as financial or originating from the Whitehead’s economic class. Dr. Salk’s portrayal of the Sterns, however, provides a stark contrast to how he viewed the Whiteheads. In describing the Sterns, Dr. Salk stated,

I find no such evidence in the lives of the Sterns. I think the Sterns demonstrate professional and – not professional is not an issue, but the fact that they do have professions which were hard to come by, involved a great deal of planning, a great deal of the kind of behavior that I think demonstrates stability.14

13 Testimony of Lee Salk, February 10, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 29.

14 Ibid., 30. 39

As these two statements demonstrate, the stability of the home for Dr. Salk was very much tied to the professional lives of the families. Dr. Salk viewed the Sterns more favorably because, like himself, they possessed advanced and professional degrees. He associated this level of education with economic prosperity and an orderly and grounded family environment.

Indeed, Dr. Salk translated the Sterns professional and advanced education into a broader assessment of their “fitness” to be parents. Dr. Salk continued his testimony by describing the report of fellow psychologist Dr. Judith Grief. Reading from Grief’s report, Salk concurred in many of its findings that described the Sterns as better equipped to raise the child. Dr. Salk stated, “[i]n summary, Bill Stern impresses me as an intelligent and emotionally mature individual, who nevertheless is vulnerable to feelings of abandonment and loss.”15 In Dr. Salk’s appraisal, Bill Stern’s emotional and intellectual maturity was a product of his education and professional position. His intelligence was a principal reason that Dr. Salk believed he was in a better position to raise and financially provide for Baby M. Likewise, Dr. Salk said of Betsy Stern, “[o]n personality measures and in clinical interviews, Mrs. Stern presented a picture of a warm, emotionally stable, sensitive, accommodating, and achievement oriented individual.”16

Similar to Bill, Dr. Salk’s view of Betsy Stern was driven by his perception of her academic achievement. The Sterns could provide a brighter future for the child because

15 Testimony of Lee Salk, February 10, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 44.

16 Ibid., 45.

40 they were intelligent, emotionally mature and goal-oriented. Dr. Salk further clarified his observation of the Stern’s intellectual capacity and educational achievement, as paired with, their ability to financially support Baby M. Furthermore, while describing the

Sterns as a couple, Dr. Salk quoted from Dr. Grief’s report, stating, “Bill and Betsy Stern have a stable and financially secure household. Their marital relationship appears to be a warm and loving one. There is evidence of mutual respect, empathy and support for one another.”17 This overall portrait of a highly educated, loving, emotionally mature couple is a direct result of Dr. Salk’s impression of their professional success. Their economic and class position drives his beliefs on what home would ultimately be better for Baby M.

This perception that the child’s best interest is partially defined by the economic class background of the families is clearer when examined in connection with Dr. Salk’s assessment of the Whiteheads. Dr. Salk compared the Whitehead’s attitude toward education with the Sterns’ approach. He said, “I think that Mr. Whitehead’s attitude about education is not exactly strong . . . and I guess, perhaps, the best indicator was that

I – about education, is in part your achievement, academically, and I would say both the

Sterns have done that.” In this instance, Dr. Salk was indirectly referencing Richard

Whitehead’s employment as a sanitation worker. Again, even in attempting to describe the Whiteheads, Dr. Salk turned to referencing the Stern’s educational background. He continued,

I can attest to how difficult it is to get a PhD from the University of Michigan. It’s no small matter, and both of them each got a PhD there, and

17 Testimony of Lee Salk, February 10, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 45.

Mrs. Stern went on to receive her medical degree, and that, too, involves a strong motivation and positive attitude toward education.18

As Dr. Salk’s discussion of the Stern’s educational background demonstrates, he was very impressed with their credentials. Moreover, it allowed him to view the Sterns in way similar to his own background. He was able to identify with the rigor of working toward and receiving a PhD. Moreover, it was an important component in how Dr. Salk viewed their ability to raise a child. It showed they could not only foster intellectual drive in their children, but they were driven and structured in their own lives.

While addressing the custody issue, Dr. Salk testified to the views on education held by both the Sterns and the Whiteheads in relation to the “best interests of the child.”

In other words, he attempted to construct a framework that demonstrated why the education and class backgrounds of both parties mattered in determining the custody of the child and resolving the litigation. Accordingly, Dr. Salk asserted that “familial attitudes towards education and their motivation to encourage curiosity and learning” were an important component to defining the best interest of the child.19 As such, he had harsh criticism of Mary Beth Whitehead’s educational background, and the likelihood of her fostering healthy intellectual development for Baby M later in life. He stated, “[w]ell the facts are that Mrs. Whitehead – I can find the specifics – Mrs. Whitehead dropped out of school against parental advice.”20 He continued, “[w]e all know that we try to keep

18 Testimony of Lee Salk, February 10, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 80.

19 Ibid., 79.

20 Ibid.

42 young people in school. We know they become high risks for problems later on if they are dropouts.”21 This statement by Dr. Salk was an unspoken condemnation of Mary

Beth Whitehead’s decision to leave school before she graduated. Moreover, it is suggestive that Mary Beth Whitehead is herself someone who has problems as a result of her decision to leave school. Dr. Salk concluded,

[y]ou know, one can[‘t] conclude everything from that, but its certainly an indicator that her attitude toward education is not perhaps as strong as the Sterns. I think the same is true of at least one of her children [who] has a negative attitude toward school, and I can understand that because he seems to have a learning disability.22

Dr. Salk’s assessment of the Whiteheads’ attitude toward education is influenced largely by Mary Beth’s decision to drop out of school before graduating. However, Dr. Salk never considered the motivations that drove Mary Beth to make that choice. While Bill and Betsy Stern had families capable and willing to support their future education, Mary

Beth’s childhood was very different. As such, her decisions were strongly influenced by those economic realities. Her attitude toward education might have been very different had she been able to have the same support the Sterns received.

In addition, Dr. Salk was not the only expert witness to reference or emphasize the amount of education attained by both couples involved in the litigation. The

Whiteheads’ failure to obtain a college education was referenced by other psychologists, too. With respect to Mary Beth’s own perceptions of the educational differences, Dr.

21 Testimony of Lee Salk, February 10, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 79.

22 Ibid.

Brodzinsky testified, “I think . . . that she felt her education put her at a disadvantage in comparison to both of the Sterns, and also. . . she indicated that she didn’t see a reason for it because she was the mother and that in itself should have determined the decision about custody.”23 In other words, Mary Beth Whitehead understood that the experts were evaluating her and taking her education into consideration when determining who would provide the best home for Baby M. In Mary Beth’s assessment, the educational differences between herself and the Sterns shouldn’t be a factor. The fact that she was the genetic and gestational mother of the child should be the sole determining element on the issue of custody.

Similar to Dr. Salk, Dr. Brodzinsky also utilized a number of “tests” in evaluating the fitness of the couples to parent Baby M. When Dr. Brodzinsky described the battery of tests he conducted on Mary Beth Whitehead, education was referenced in multiple instances when describing her success or failure. He reported, “[o]verall I would say this

[is] a woman in the low average to average range of intelligence. She had a lot of variables from retarded range in one area all the way up to average . . . her [scores were] clearly lower because of her lack of education.”24 As with the Sterns, Mary Beth

Whitehead’s intellectual capacity was being utilized to assess her potential for parenthood. Unlike the Sterns, however, her intellectual and educational background counted against her. Dr. Brodzinsky continued, “[b]y her own report she did not really

23 Testimony of Dr. Brodzinsky, January 20, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 67.

24 Ibid., 69.

44 keep an interest with current news either through the newspaper or on television so that’s one sub-test I think she really was at a disadvantage because of her background.”25

Again, this reflects how the differences in the economic class affected the Baby M litigation. The Sterns with a different educational and economic background were well read. They kept up-to-date with the news and issues of the day. The fact that the

Whiteheads did not, and perhaps couldn’t afford to purchase multiple newspapers or magazines to examine contemporary issues helped define them negatively in the minds of the expert witnesses.

To the expert witnesses and psychologists that examined the Sterns and the

Whiteheads, the difference in education had very real consequences in their ultimate recommendations as to which couple represented the best future for Baby M. When asked to describe the characteristics that would be needed to support Baby M, Dr.

Brodzinsky stated,

[s]he needs an environment which will promote growing autonomous as she moves into [her] toddler and preschool years. [An] environment which can help her move beyond the parenting figures and others who care for this child, into the world to explore who she is, to find out her own unique skills and needs and so forth. This will become more important as she moves into preschool and school age years.26

Under this construction, Dr. Brodzinsky creates a criterion where education is used to determine a child’s best interests. Under such a measure, a couple that possesses a high

25 Testimony of Dr. Brodzinsky, January 20, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 69.

26 Ibid., 95.

45 degree of education and the means to provide a more complete education is likely to prevail. Dr. Brodzinsky continued, “[s]he needs an environment which will provide her support for her educational achievement. [An] environment which will optimize whatever abilities she has.”27 Only the Sterns could possibly be assessed as the couple better suited to care for the child; the economic and class background of the Whiteheads weighed heavily against them.

The Whiteheads’ and the Sterns’ educational backgrounds was not the only factor utilized by the parties in order to probe the financial security and ability of both couples to provide for Baby M. The attorneys for the Sterns made the future financial security of the Whiteheads a central component of the litigation. They not only utilized the past financial struggles of the Whiteheads, but they also used the financial drain of the litigation against them. The cost of the litigation had become difficult for the Whiteheads to bear. It caused the Whiteheads to leverage their home and eventually declare bankruptcy. Moreover, the financial problems partially led to troubles within the

Whiteheads’ marriage. These struggles and the Whiteheads’ separation provided further fuel for arguments made by counsel pertaining to the best interests of Baby M.

During the trial, Mary Beth Whitehead was asked about Richard moving out of the home for several months. Mary Beth and Richard’s separation was not just about the stability of the marriage and the family unit; it was also linked to the financial stability of the family. While Richard was not living at home, Mary Beth filed an application for

27 Testimony of Dr. Brodzinsky, January 20, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 95 - 96. 46 welfare.28 The fact that Mary Beth resorted to government assistance to support her family was a negative consideration for the experts enlisted to evaluate the Whiteheads’ ability to provide a home for Baby M. Moreover, it demonstrated a further lack of stability. The home was subject to fracture, and Mary Beth didn’t possess the experience or the skills to easily obtain a job to support the children if it was required.

In addition, the Whitehead’s financial position was further evaluated in light of revelations that Rick inherited some property from his parents. Rick’s inability to manage the property and the profits resulting from its sale was portrayed by the expert witnesses as another example of the Whitehead’s financial instability. Moreover, during the litigation the Whiteheads faced a foreclosure action involving their own home, and were forced to file a petition for bankruptcy. These actions were partly driven by the financial costs of the events related to the surrogacy agreement. Certainly, the litigation costs were substantial, but it cost the Whiteheads in other ways too. When Mary Beth fled to Florida to avoid the police handing over custody of Baby M to the Sterns, the costs of the travel expenses were substantial for a couple that had little income. The result was a weak financial situation, further destabilized by the surrogacy related events.

The expert witnesses testimony regarding the intellectual capacity of the

Whiteheads, their financial position and their education converged when attorneys discussed their ability to manage their personal finances. At different points in their marriage, the Whiteheads relied on the assistance of family members to balance the

28 Testimony of Mary Beth Whitehead, February 18, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 76. 47 books. This included both paying the Whitehead’s bills and managing the Whitehead’s accounts. Attorneys questioned Mary Beth during the trial about the times her own father had helped her and Richard financially. Attorneys for the Sterns asked, “[d]id he (Mary

Beth’s father) in anyway become involved in the payment of bills for you and your husband Rick?”29 Mary Beth responded, “[w]hen we lived with him but not any other time.”30 Upon further questioning, it became clear that there were different times when

Mary Beth’s father provided further assistance to the Whiteheads.

The discussion of the Whitehead’s current financial position wasn’t limited to

Mary Beth Whitehead’s direct testimony or counsel’s cross-examination. Even the expert witnesses employed by the guardian ad litem commented on the financial issues experienced by the Whitehead family. In his testimony, Dr. Schechter discussed expansively the financial troubles the Whiteheads experienced throughout their marriage.

He stated in open court, “[y]es. There had been financial difficulties before and, at one particular point in time when the parents separated, Mrs. Whitehead and the children went on welfare. So, there were financial difficulties early on in the marriage.”31 The continuous nature of the financial difficulty, coupled with the fact that Mary Beth had filed for welfare greatly influenced the way Dr. Schechter perceived the Whiteheads. Her time on welfare demonstrated to him a lack of motivation, compared with the Sterns, and

29 Testimony of Mary Beth Whitehead, February 18, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 126.

30 Ibid.

31 Testimony of Dr. Schechter, February 24, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 24.

48 an inability to provide for her children. Even taking into consideration the nature of how the debts were accruing later in the Whitehead marriage, which was a result of the Baby

M litigation, Dr. Schechter believed this reflected poorly on the Whiteheads. He testified that not only did they incur significant debt, but that they “would . . . incur expenses that would take them the rest of their lives to be able to pay off and [they would] continue on into the Supreme Court in case the New Jersey courts rule against them.”32 When asked to elaborate, he stated, “I didn’t say that I thought that this would be beyond their capabilities. I indicated that I thought that this would be incurring unusual debts that might effect not only them, the parents, but effect the children as well.”33

Again, the portrait that emerged was a financially incompetent couple, from a working class background, with poor education. This portrayal, as demonstrated above, became intertwined with the litigation’s legal analysis by its inclusion as an element of the “best interests of the child” standard.

For some of the psychologists, the financial problems encountered by the

Whiteheads were a reflection of the psychological issues of Mary Beth Whitehead. Dr.

Schechter testified,

[t]he interpersonal exploitativeness [sic] and disregard of others, which is part of the narcissistic personality, the fact that she ignores her husband’s wishes when he says no to . . . becoming pregnant, the involvement in issues which lead to financially draining them. And, my understanding at the time of writing this report was that their financial situation was such that it might

32 Testimony of Dr. Schechter, February 24, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 172 - 173.

33 Ibid., 173.

result in the foreclosure either of the first or second mortgage on the, their home.34

In this regard, Dr. Schechter suggests that Mary Beth Whitehead’s psychological issues and disregard for others helped facilitate the Whitehead’s financial problems. Moreover, it was those financial problems that made her home less suitable for raising Baby M.

The family’s economic problems colored much of the psychological evaluations by the expert witnesses. When asked about Mary Beth’s relation with her children and her husband, Dr. Schechter brought it back to his statement on the family’s finances. He stated, “the factor of finances, the factor of what does it mean to have a child and then give it up as part of the surrogate parent agreement has grave effects on what the personality development may be on the two children existing in the family.”35 He continued, “I think that this is something that all of us as adults need to consider, how much we are willing to spend for any item that, that we feel is of importance to us and what its effect is going to be on everybody else in our family that we care for.”36 In this instance, Dr. Schechter makes an interesting twist in his analysis. The fact that the

Whiteheads would “sell” a child is more concerning to him than the reality that the Sterns were “buying” theirs. In other words, the analysis only applied in one direction, and to the disadvantage of the Whiteheads who were in the economically disadvantaged position. Moreover, it is illustrative of how the perceptions formed by the psychologists

34 Testimony of Dr. Schechter, February 24, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 14.

35 Ibid., 15.

36 Ibid. 50 of both the Sterns and the Whiteheads, perceptions heavily influenced by class and educational attainment, shaped their views on whose actions in the transaction were more detrimental to the child.

When asked to voice an opinion on which family would be a better fit for the child, Dr. Brodzinsky stated that he felt the Sterns would be better for the child in the long-term. When prompted to explain his reasoning, Dr. Brodzinsky said,

[t]he home environment is a stable one. It is financially secure and I’m going to emphasize finance in my opinion plays a minimum role in this, but nevertheless they are financially secure and unlikely to be moving from environment to environment which can be disruptive.37

While Dr. Brodzinsky suggested that finances were only playing a minimum role in his analysis, he continued with a number of other comments that suggested that they played a much larger role than he was willing to admit. Later in his testimony he elaborated on his assessment of the Whiteheads. He said,

[t]his is a family also that has had difficulty at this time. Finances don’t play much of a role in and of themselves but when you consider this is a family that has moved 6 or 7 times prior to coming to their current home I’m very much concerned about the impact of that kind of residential instability on the child in terms of continuity of education and it’s quite likely that played a role with Ryan (the Whitehead’s daughter) and continuity of peer relationship.38

Again, while continuously affirming that he was not basing his recommendation on the

Whitehead’s finances he suggested rationales connected to the Whitehead’s economic

37 Testimony of Dr. Brodzinsky, January 20, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 100 - 101.

38 Ibid., 106.

51 class. Dr. Brodzinksy attempted to characterize this analysis in terms of stability, yet stability often seemed to be linked to financial security. He summarized his opinion as,

“in terms of having enough money to meet their needs then finances are irrelevant as far as I’m concerned. It’s that instability factor which worries me.”39 The Whitehead’s problem, during trial, was that most expert witnesses portrayed them as not having enough money to meet their needs. Moreover, their financial troubles were depicted as leading to instability, and thus unlikely to provide the best home for Baby M.

The descriptions of the Sterns and Whiteheads by attorneys and witnesses did impact the course of the litigation and the ultimate outcome. Ultimately, the classification of the Sterns and Whiteheads, by their economic class, influenced the ruling of Judge Sorkow. In Judge Sorkow’s opinion, the issue of class was most evident in his determination of the custody of Baby M, and his analysis of the “best interest of the child” test. At the time of the Baby M decision, the “best interest of the child” standard was a relatively new legal development. In previous decades, courts had employed a more inflexible standard, a standard that nevertheless yielded consistent outcomes in custody disputes. The “tender years doctrine” operated under the assumption that children would be best served by spending their developmental years in the care of their mother, who was viewed as the more capable parent and nurturing caregiver.40 However, beginning in the 1960s courts in the United States slowly started utilizing alternative

39 Testimony of Dr. Brodzinsky, January 20, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 107.

40 Robert Hanley, “Baby M’s Best Interests May Resolve a Puzzling Case,” New York Times, February 2, 1987. 52 standards to determine custody. The first articulation of a new standard, in determining custody, was expressed as the “better fit parent” standard, which was also the first expression of resistance toward essentially de facto grants of custody to the mother. By the time the Baby M case arrived in Judge Sorkow’s courtroom, courts had started using the “best interest of the child” doctrine focusing on awarding custody, by utilizing a range of considerations, to the guardian best suited to advance the child’s welfare. In many ways, it was a reflection of changing societal currents, responding to pressure by feminist activism, attempting to make the law gender neutral.

In writing his opinion, Judge Sorkow relied heavily on the analysis and judgments of trial experts regarding the ‘best interests’ of Baby M. After briefly establishing the legal foundation for applying the ‘best interest’ standard, Sorkow proceeded to quote the testimony of several expert witnesses. He was particularly impressed with the testimony of Dr. Salk. During trial, Dr. Salk identified nine separate criteria, to be applied in this case, for determining the “best interest of the child.”41 While many of the individual criteria could be viewed, on their face, as impartial and class neutral, upon further examination it is apparent that many are permeated with class preferences. Certainly, as

41 Dr. Salk’s definition consisted of the following criteria: was the child wanted and planned for; what is the emotional stability of the people in the child’s home environment; what is the stability and peacefulness of the families; what is the ability of the subject adults to recognize and respond to the child’s physical needs; what are the family attitudes towards education and their motivation to encourage curiosity and learning; what is the ability of the adults to make rational judgments; what is the capacity of the adults in the child’s life to instill positive attitudes about matters concerning health; what is the capacity of the adults in the baby’s life to explain the circumstances of origin with least confusion and greatest emotional support; which adults would better help the child cope with her own life? In the Matter of Baby M, 217 N.J. Super 313 (1987), 394 – 395.

53 discussed above, the most class-biased of Salk’s criteria was his fifth factor in defining the child’s ‘best interest.’ – “family attitudes towards education and their motivation to encourage curiosity and learning.”42 Under this requirement, individuals or couples with resources and access to education are favored over households that cannot afford similar resources. However, a family’s commitment toward education and learning was not

Salk’s only factor that clearly tilted in favor of the wealthy. In many of the other criteria,

Salk crafts requirements based on “emotional stability” and aiding the child with his/her physical and emotional needs. Judge Sorkow heavily favored Dr. Salk’s characterization of the Sterns and the Whiteheads. Moreover, he largely adopted Dr. Salk’s, and the other expert witnesses, application of the facts surrounding the homes of the Sterns and the

Whiteheads.

Judge Sorkow, however, did not merely rely on Dr. Salk’s analysis for determining the best interest of Baby M’s custody arrangement in making his decision.

He also wrote his own analysis of the criteria involved in determining the best interest of

Baby M. Similar to Dr. Salk, Sorkow used the Whitehead’s financial position as a proxy in calculating the direction each factor ultimately weighed. In the following passage,

Sorkow relates the Whitehead’s finances with a stable home.

The court also evaluates the climate in which the child may be exposed with the Whiteheads. In addition to a history of economic and domestic instability with another house move imminent, the reduced level of importance given to education in the Whitehead home and the character trait problems defined by almost all the mental health professionals, including Mrs. Whitehead’s own chosen experts, Mrs. Whitehead has a genuine problem in recognizing and reporting the truth.43

42 In the Matter of Baby M, 217 N.J.Super. 313 (1987), 395.

As the above-referenced passage demonstrates, the Whitehead’s finances were very much a factor in Judge Sorkow’s rationale for determining the custody of Baby M. While a number of factors were considered, ultimately the Whitehead’s financial position was prominent in determining which party would have custody of Baby M.

While a large amount of public debate surrounded the Baby M trial, the appeal and ultimate decision of the New Jersey Supreme Court is also worth considering. While the Supreme Court of New Jersey agreed with Judge Sorkow concerning the ultimate custody of Baby M, the court’s decision was based on a slightly different rationale. In particular, the New Jersey Supreme Court felt Judge Sorkow privileged the Stern’s education and financial status in evaluating the “best interests” of Baby M.44 Instead, the

Supreme Court’s decision focused on emphasizing the happiness of child. The court wrote, “‘[b]est interests’ does not contain within it any idealized lifestyle; the question boils down to judgment, consisting of many factors, about likely future happiness of a human being.”45 Yet, interestingly, the Court still referenced the Whitehead’s troubled finances, the Stern’s education and training, and Richard Whitehead’s lack of job security as “strongly persuasive testimony” concerning the custody determination. At a

43 In the Matter of Baby M, 217 N.J.Super. 313 (1987), 395 – 396.

44 In somewhat of a harsh rebuke, the Court wrote, “[w]e have a further concern regarding the trial court’s emphasis on the Stern’s interest in Melissa’s education as compared to the Whiteheads’. That this difference is a legitimate factor to be considered we have no doubt. But it should not be overlooked that a best-interests test is designed to create not a new member of the intelligentsia but rather a well-integrated person who might reasonably be expected to be happy with life.” In the Matter of Baby M, 109 N.J. 396 (1988), 460.

45 In the Matter of Baby M, 109 N.J. 396 (1988), 460. 55 fundamental level, the very class analysis defining the trial court’s decision and woven into the “best interest of the child” analysis also informed the Supreme Court’s decision.

Employing Exploitation: Baby M’s Impact on the Debate of Fairness in Surrogacy Contracts

Questions of how class related to the Baby M case were not contained to the litigation itself. Certainly the difference in economic class permeated the trial and subsequent appeal. However, the case highlighted the ways the Sterns and the

Whiteheads were only an illustration of broader problems that pervaded the industry. At the time the Baby M trial commenced, Noel Keane had already made an enormous amount of money by profiting from surrogate motherhood. As journalists covered the

Baby M case, they soon exposed just how much was at stake for lawyers, doctors and social workers involved in surrogacy agreements. In an effort to understand the profitability of the surrogacy practice for Noel Keane, Anne Taylor Fleming visited

Keane’s offices in Dearborn, Michigan. Fleming wrote,

[Keane] was doing business as usual, which meant that his comfortable two- story offices in Dearborn, Michigan were full of prospective surrogate mothers, often with husbands and babies in tow, and infertile couples who had come to check out the candidates for surrogacy. The well-groomed couples, who had come from as far away as New York and Texas were each assigned a private office, through which the surrogates were rotated, to proffer their fertility and show off the living, gurgling proof thereof.46

As Fleming describes, Noel Keane’s offices were full of prospective surrogate mothers and desperate couples, hoping to find any way to conceive a child. Keane’s business was

46 Anne Taylor Fleming, “Our Fascination With Baby M: At Stake in the Trial is Our Sense of Ourselves, Our Concept of Motherhood, of Parenthood,” New York Times, March 29, 1987.

56 doing well. So well, in fact, that at the time of the Baby M decision it was estimated to be grossing over $600,000.47

Fleming’s observation of Keane’s practice is revealing. Her description of the practice demonstrates just how great the class divide between the surrogate mothers and infertile couples could be. As the couples seeking a child remained in private offices, prospective surrogates were brought to them to examine, to question, to evaluate. In many ways, the exercise resembled a rancher evaluating livestock. In describing one exchange between an infertile couple and a prospective surrogate, Fleming wrote,

[j]ust look at her, would you look at her,’ said one young man, smiling at his pretty young girlfriend and their out-of-wedlock eight-month-old. ‘Her stomach was that flat the day she left the hospital, and she doesn’t have a stretch mark on her. I’ll take care of her when she’s pregnant again, but the baby means absolutely nothing. It’s like watching someone’s car for nine months. We’re in it for the money; it’s a business. That’s the way we look at it.48

The young man’s description of his girlfriend is further illustrative of how prospective surrogate mothers were treated as if they were livestock at market. Moreover, his comments show how many utilized surrogacy as a business opportunity. It was a way to make money for those who didn’t have limitless economic opportunities.

In addition, the image of a stable where women were selected for their ability to produce desirable offspring, yet willing to part with their child, is unmistakable in

47 Anne Taylor Fleming, “Our Fascination With Baby M: At Stake in the Trial is Our Sense of Ourselves, Our Concept of Motherhood, of Parenthood,” New York Times, March 29, 1987. Keane’s $600,000, in revenue, would be approximately valued at $1,234,367.96 in 2015 according to the Bureau of Labor Statistics.

48 Ibid.

Fleming’s writing. She continued to describe how different candidates were perused and selected by customers, with Noel Keane overseeing the entire operation. As Fleming explained, most candidates were not received warmly. Some were labeled as

“backwoodsy,” “too jazzy,” or “lonely.” Many candidates were rejected because they bore the unmistakable markers of their class, such as, lack of an education. However, it also showed how the selection process worked at Keane’s offices. Fleming wrote,

[t]here was that morning, however, one promising candidate. Everyone sensed it when she came in. Pretty and poised, 24-year-old Lisa Spoor is the daughter of a lawyer, the divorced mother of two and a waitress who earns $8,000 a year. She wants the $10,000 surrogate fee so she can send her two small children to private school.49

While Spoor didn’t describe every surrogate mother, she certainly described the ideal candidate for many infertile couples.

According to Fleming, Spoor was the type of ideal candidate that would be picked up rather quickly in Keane’s office. She was educated. She came from a good background. Yet, she needed the money. Her employment didn’t provide for the ability to send her children to private school. In this way, she wanted to provide for her children in the same manner that she was provided for. This inability to send her children to private school is a direct reflection of the limitations of her class, and quite unlike the majority of the clients evaluating her at Noel Keane’s office.

49 Anne Taylor Fleming, “Our Fascination With Baby M: At Stake in the Trial is Our Sense of Ourselves, Our Concept of Motherhood, of Parenthood,” New York Times, March 29, 1987.

In discussing Spoor, Fleming wrote of her progress through the various private rooms in Keane’s offices. Fleming wrote, “Noel Keane tracked her progress through the rooms. She quickly was [snapped up], by a couple from New York, Gregory and

Kathleen Zaccaria, young professionals in their 30s with a joint annual income of

$100,000.”50 Again, the differences between those seeking a child and the surrogate mother could not be more stark or pronounced. A waitress unable to afford the tuition of a private school, compared with a couple from New York with an annual income of

$100,000. Not only does it highlight the differences in economic class, but it also illustrates the potential for the exploitation of women without economic means.

The profitability of surrogacy arrangements extended beyond Noel Keane’s practice. As the practice of surrogate motherhood and surrogacy arrangements became more and more public knowledge, a number of “brokers” emerged across the United

States. One such broker was Kathryn Wycoff. Wycoff started a surrogacy business in

Columbus, Ohio to match couples wanting a child with surrogate mothers. She would later move her practice to the more lucrative market of Orange County, California.

Similar to Keane, her business was extraordinarily profitable. When she was interviewed during the Baby M case, Lynn Smith wrote that “[s]ince moving her practice from

Columbus, Ohio, two years ago [Wycoff] has found no lack of infertile couples desperate for a child who is at least half theirs genetically and who are willing to pay $27,000 to

50 Anne Taylor Fleming, “Our Fascination With Baby M: At Stake in the Trial is Our Sense of Ourselves, Our Concept of Motherhood, of Parenthood,” New York Times, March 29, 1987. 59

$29,000 for her ‘comprehensive program.’”51 Again, the amount of money needed to participate in a surrogacy agreement is staggering. It limited the ability to utilize a surrogate to only a small group of upper-middle-class couples. The large comprehensive fee for Wycoff’s services, “include[d] a ‘custom chosen’ surrogate, who earn[ed]

$12,000; a legal contract; psychological counseling for the surrogate; insurance policies for both parents; payment of hospital bills and even maternity clothes. Her own fee [was]

$6,000.”52 As Wycoff’s story demonstrates, surrogacy was not only profitable, but limited to a very small group of prosperous individuals.

While the economic differences between prospective surrogates and infertile couples were readily apparent in the offices of Noel Keane and other surrogacy brokers across the country, journalists also observed how class differences were visible in adoption advertisements appearing in small town newspapers. As Anna Quindlen noted, wealthy couples seeking a child to adopt often exploited class differences. Quindlen’s observations were documented in an article, entitled “The Advertisements of Quiet

Desperation” appearing in the Chicago Tribune. It started by quoting an advertisement in a small newspaper in Pennsylvania. The advertisement read, “ADOPTION—Let us help each other. Childless couple eager to be finest parent for your white newborn. Can provide loving home and all the best things in life. Call collect. All expenses paid.” The advertisement makes clear that the couple has the financial means to provide for the

51 Lynn Smith, “The Brave New World of ‘Designer Babies’: Matchmaker Helps Find Surrogates,” Los Angeles Times, February 27, 1987.

52 Ibid. 60 child. Moreover, they are willing to pay all the expenses necessary for the prospective mother to contact them, in addition to, making clear that they intended to provide a very secure financial future for the child. The advertisement also implied something about the class dynamics involved. As Quindlen wrote,

[t]he telephone numbers suggest that the couple lives in the New York City area, not in the newspaper circulation area of farms and small towns. The message is clear. If you are pregnant and want to give your baby up for adoption, call us. We have plenty of money. The child will have a college education, summers at the seashore, a canopy bed.53

While Quindlen’s conclusions are somewhat speculative, for example, her insinuation that the child will have a college education and a canopy bed, the advertisement does make a very clear suggestion that if you want the best for your child, you should consider contacting the number provided. In many ways, the implication from the advertisement is that the mother reading the ad cannot provide the same kind of life for the child as the couple placing the advertisement. Unspoken in this suggestion is that the life the child could have is much better than the life the child would have if it remains with the mother.

Quindlen concludes her article with some personal reflections, “[w]hen I read these advertisements I picture a 16-year-old girl reading them, too, weighing her options.

Should she give the baby to the dentist and his wife with the house in the suburbs, or to the two lawyers with the apartment in the city? Which will make her child happier?”54

53 Anna Quindlen, “The Advertisements of Quiet Desperation,” Chicago Tribune, January 30, 1987.

54 Ibid.

Quindlen’s reflections demonstrate how journalists conceived of the broader implications of the Baby M case.

Another troubling aspect of Quindlen’s reporting was her demonstration of two distinct groups present in the adoption trade. She described the couple from New York seeking to adopt a child from a mother who couldn’t afford or couldn’t care for a child.

Moreover, she discussed how the advertisement appeared in a small circulation newspaper in Pennsylvania. In this sense, Quindlen’s indictment of the system was worrisome as it focused attention on the class disparity between the two parties. She wrote, “I know why those advertisements are in a paper in rural Pennsylvania, because I spoke to people who placed one. A lawyer had told them that their chances of finding a teenage girl willing to give a white infant up for adoption were greatest among rural working-class people.”55 This appraisal summarized the differences between those who sought children to adopt and the surrogate mothers expected to carry their child. At its heart, it was an emerging system filled with the potential for exploitation.

The concept Quindlen identified in her writing, the ability of wealthy couples to search for a child from distant locations with typically higher rates of poverty, was not unique to adoption. As reproductive technology became more and more advanced, medical tourism produced cases of transnational markets in children. Feminists, as well as other anti-surrogacy advocates, often criticized the emergence of transnational markets in children. Analyzing the issues of class, feminists often utilized the existing adoption

55 Anna Quindlen, “The Advertisements of Quiet Desperation,” Chicago Tribune, January 30, 1987.

62 markets to draw comparisons with the dangers envisioned regarding reproductive technologies. Janice Raymond was quoted as suggesting,

[p]oor women in Sri Lanka . . . said they were forced to have sex with European tourists so they could produce lighter-skinned, and therefore more saleable, babies. There are also reports of “baby farms” in Guatemala and the Caribbean. Guatemalan soldiers suppressing rural people reportedly have been paid for bringing back babies for the adoption market. Also . . . some children have been stolen from hospitals in Turkey to sen[d] to Europe, and their parents have been told that they died.56

As Raymond’s account indicates, the issues of class, exploitation and money were intimately connected to criticisms of international surrogacy markets. Often the issue of exploitation was heightened and highlighted when international agreements were examined.

Paid surrogacy in the United States, however, remained distinct in its early development due to the better-established medical practices and legal protections offered by some United States jurisdictions. As such, international surrogacy in the years immediately surrounding the Baby M decision was not exclusively in U.S. couples seeking women in “third-world” countries to bear their children. Carol Lawson, of the

New York Times, reported in 1990 that a couple from Venezuela traveled to the United

States to take advantage of surrogacy agreements. According to Lawson’s reporting, the

Venezuelan couple traveled to Pasadena, California to take part in a new set of technologies revolutionizing surrogacy and reproductive technology. By 1990, the technology of gestational surrogacy was available – just as Elizabeth Stern had hoped in

56 Carol Anne Douglas, “Women as Wombs,” Off Our Backs: A Women’s NewsJournal 24, no. 1 (1994): 12. 63 the beginning of the Stern’s odyssey. In other words, infertile couples could sever the genetic link with the surrogate mother.

Yet, cases involving international couples seeking a surrogate mother in the

United States often involved similar issues of exploitation and class. Simply because these cases differed from the precise vision imagined by feminist critics, didn’t mean that they often didn’t still contain very clear issues of class. Catherine Toole, the surrogate mother chosen in the instance above, was economically underprivileged compared to the

Venezuelan couple described by Carol Lawson. Moreover, the fees in such cases were generally equivalent to those garnered by surrogacy arrangements involving U.S. couples. Lawson wrote, “Mrs. Toole, who is married and the mother of four children of her own, said that even though she spent the last six weeks of her pregnancy in the hospital and gave birth by caesarian section she ‘would do it again.’ She was paid

$10,000, which is the usual fee in such cases.”57 The substantial fee paid to the surrogate in this instance is an example of how the arrangements continued to attract economically needy women to surrogate motherhood.

Those involved in the brokering of the deals, however, resisted the notion that these agreements were exploitational. Even the doctors who helped facilitate gestational surrogacy believed that their practices prevented the possibilities of abuse. Dr. Paulo

Serafina, the director of the Huntington Reproductive Center in Pasadena, didn’t agree that women were being exploited for their reproductive labor. Dr. Serafina oversaw the

57 Carol Lawson, “Couples’ Own Embryos Used in Birth Surrogacy,” New York Times, August 12, 1990.

64 medical aspects of Catherine Toole’s surrogacy arrangement with the unidentified

Venezuelan couple. “He said the hospital allows the center to use gestational surrogates only when it is medically indicated.”58 Describing the protocols in place to prevent exploitation, Dr. Serafina said, “[t]he hospital board is concerned that if you are 39 years old, successful and very busy, you might want to rent someone’s womb as a convenience…in such a case, the hospital would refuse.”59 In this instance, the hospital was particularly concerned about women or couples waiting to have children until later in life, and then utilizing the reproductive labor of women of lower economic classes to have children. Dr. Serafina believed the hospital could successfully screen those individuals from the process. However, as his explanation suggests, protocol relying on identifying individuals who might be using surrogacy to circumvent the consequences of delaying pregnancy would do little to prevent economic and class exploitation.

The trend of international surrogacy in the United States was also documented at

Noel Keane’s own facilities. Shortly after the Baby M litigation, Keane started working with a Japanese couple that wanted to have children. As James Risen reported, “[a]

Japanese couple . . . hired him to conduct in vitro implants into two of Keane’s hired surrogates, hoping that at least one will become pregnant.” The perception of exploitation was often heightened in situations that utilized techniques permitting gestational surrogacy. In these circumstances the surrogate mother’s lack of ties to the

58 Carol Lawson, “Couples’ Own Embryos Used in Birth Surrogacy,” New York Times, August 12, 1990.

59 Ibid. 65 child made journalists and commentators more aware of the role compensation played. It appeared less and less like the gift of motherhood, and more and more like the criticisms of the industrialization of reproduction discussed in the pages that follow. Moreover, the gestational surrogacy and international markets raised further questions of race and exploitation. Risen’s story continues, “Keane’s white American surrogates will thus be confronted with the prospect of giving birth to babies that will have no genealogical or racial ties to them.”60 While the Japanese couple’s surrogate would be a white American, the racial dimensions reiterated Janice Raymond’s concerns. It illustrated that the potential existed for wealthy, white Americans to travel abroad seeking poor women to carry their child to term. These concerns would be well founded, as scholarship in the years that followed the Baby M decision demonstrated the development of international baby markets and medical tourism around the practice of surrogacy. The issue of exploitation was very much alive in the discussion and coverage of the Baby M case.

The Market as Judge: Allowing the Marketplace to Regulate Surrogacy in the United States

While many in the media and the public called attention to the class disparity present in the Baby M case, some defended the existence of those differences and the system that allowed them to flourish. For these supporters, the economic disparity between the Whiteheads and the Sterns was a result of an economic system capable of policing itself. Some believed that the practice of compensated surrogacy allowed women of lower economic means an avenue to income they might not have otherwise.

60 James Risen, “Lawyer Runs Surrogate Baby Boom,” Los Angeles Times, March 11, 1987. 66

Others thought the market itself would make the ultimate determination on the ethical boundaries of the practice – believing that if the public did not feel paid surrogacy was acceptable in the United States it would not receive both willing surrogates and eager prospective parents. Uniting all of these opinions was the belief that the courts should largely remove themselves from the debate, and allow the market to decide the final acceptability of the practice.

In an article by Michael Kinsley, he explored why paid surrogacy is so complex and difficult as to resist the establishment of broad reaching consensus. The connection between money, economics and surrogacy was one explored deeply by the Wall Street

Journal. In particular, the notion that markets could be used to help evaluate and determine the ultimate outcome of paid surrogacy in the United States. Yet, Kinsley first discussed why he believed it was so difficult for the public to accept the ability of the market’s valuation of surrogacy. He wrote, “[a]t first there was general sympathy for the infertile couple, the Sterns, and a general feeling that the surrogate mother, Mrs.

Whitehead, was a bit nutty.”61 Many journalists covering the Baby M case shared

Kinsley’s observation of Mary Beth Whitehead. Given the news coverage of Mary

Beth’s flight with the newborn from New Jersey, and the well-publicized psychological evaluations, many journalists wrote that Mary Beth Whitehead might well be unstable.

However, Kinsley, like others, witnessed a change of perception over the course of the litigation. He continued,

61 Michael Kinsley, “Viewpoint: Baby M and the Moral Logic of Capitalism,” Wall Street Journal, April 16, 1987.

[a]s the trial progressed the Zeitgeist shifted. The Sterns’ litigation steamroller, their seeming – almost preening – perfection as upper-middle- class professionals, created a backlash of sympathy for the underdog. By the end, a bizarre anti-surrogacy consensus had grown between liberals and feminists siding with Mrs. Mary Beth Whitehead on class and sex grounds, and social conservatives upset at the general implications of messing around with procreation.62

In this manner, Kinsley accurately describes how the trial’s ability to highlight the differences in class united activists and political opponents that would normally be in opposition. Moreover, Kinsley highlighted one of the fundamental issues capturing the public’s attention in relation to class and surrogacy – the potential for exploitation. For those advocating the use of the markets to determine paid surrogacy’s place in American society, the public first had to abandon the notion of exploitation.

As discussed above, the debate over exploitation and class pervaded discussions surrounding surrogacy in the immediate aftermath of the Baby M decision. With a number of states considering bans on the practice, a leading justification utilized by legislators was the potential for exploitation. Opponents often cited the issue of exploitation as rationalization not only for the bans, but also for the political momentum to legislate. Jeremy Rifkin of the National Coalition Against Surrogacy stated about the gaining energy to offer legislative solutions, “[w]e’re absolutely delighted . . . I predict within two years all commercial contracts for surrogate mothers will be outlawed. This turns poor women into breeders, and were selling human beings. It’s unconscionable.”63

62 Michael Kinsley, “Viewpoint: Baby M and the Moral Logic of Capitalism,” Wall Street Journal, April 16, 1987.

63 Andrew Malcolm, “Steps to Control Surrogate Births Rekindle Debate: Proposals to Ban Practice are Viewed as Prelude to More Complex Limits,” New York Times, June 26, 1988. 68

Rifkin’s prediction would prove to be mistaken; however, his linkage between surrogacy and exploitation would be cited widely.

Many believed that the Supreme Court of New Jersey’s ruling would bleed the energy out of surrogacy arrangements. For opponents of the surrogacy contract, it was praised as the first step to ending the practice. A.M. Rosenthal thought so. In an article praising the Court’s decision, Rosenthal wrote, “Judge Wilentz’s court is respected in the country. The decision that surrogacy for money is simply child-sale and therefore illegal will certainly be accepted in many states. Unpaid surrogacy is still legal but there will be little profit in it for the baby brokers, who will have to find a new way of making a dollar.”64 Rosenthal’s comments not only suggested the larger existence of Jeremy

Rifkin’s prediction, but they also demonstrate another important characteristic of the debate surrounding paid surrogacy – the belief that few women would choose to be surrogate mothers if they were not compensated.

While many viewed the possibility for exploitation as unconscionable, Kinsley perceived it as a natural manifestation of the marketplace. In other words, parties sometimes are unequal in commercial exchanges. However, under Kinsley’s viewpoint, an agreement between two unequal parties doesn’t mean that it cannot be mutually beneficial to both. When writing about the issue of exploitation, Kinsley stated,

[i]n short, what good reason is there to thwart the wishes of two people to make this deal? One suggested reason is concern over “exploitation” of poor women by prosperous couples. Roman Catholic commentator Joan Frawley referred in these pages April 7 to “the distasteful class war that seemed to dominate the custody fight for Baby M.” But no one is forcing

64 A.M. Rosenthal, “A Poem for Seven Judges: They Rule a Deal is not Always a Deal,” New York Times, February 5, 1988. 69

women to do this, and no one who wants to deny them the opportunity is offering them an alternative source of funds. This, once again, is the powerful logic of capitalism. And, once again, almost all surrogate mothers are apparently quite pleased with the arrangement.65

As this quotation demonstrates, Kinsley believed that under surrogacy arrangements, both parties could benefit. Moreover, it shouldn’t be up to government or the public to step in and prevent a party from bargaining for an exchange where both parties could profit.

Under this analysis, the marketplace is the ultimate arbiter of fairness. Individuals should not be restricted, by society, from entering into arrangements that might seem similar to exploitation. If one party is unfairly taken advantage of, Kinsley believes that the market will account for such circumstances by fewer individuals taking part in surrogacy agreements. For Kinsley, it can be summarized thusly, “[a] premise of our society – our economic system . . . is that the total sum of human happiness is most likely to be maximized if people are permitted to pursue their own paths . . . with minimum interference.”66 The markets, in the instance, would determine the boundaries, if any, of surrogacy arrangements. To restrict the practice would constrain the ability of persons to pursue individual happiness.

Much of Kinsley’s article relies on Judge Richard Posner’s economic analysis of baby-selling. As such, Kinsley is swayed by situations similar to the Sterns. He explains

Posner’s argument, “[i]n fact, the shortage appears to be an artifact of government

65 Michael Kinsley, “Viewpoint: Baby M and the Moral Logic of Capitalism,” Wall Street Journal, April 16, 1987.

66 Ibid.

70 regulation . . . [t]he fact that . . . the costs of production to natural parents are much lower than the value that many childless people attach to children, suggests the possibility of a market in babies.”67 Kinsley, likewise, agreed with Posner. The volume of contracts and the number of individuals willing to participate in a surrogacy marketplace suggested to

Kinsley an overall willingness of the public to participate. Furthermore, the amount of money being exchanged indicated to Kinsley that surrogacy contracts were very much desired, and that both parties approached surrogacy with something to gain.

Accordingly, Kinsley was dismissive of the notion that exploitation was something society should be concerned with regarding surrogacy agreements.

Others also saw value in allowing the markets to dictate the practice of surrogacy.

Anthony D’Amato, a law professor at Northwestern University, wrote a letter to the editor of the New York Times defending the practice and opposing efforts by states to regulate surrogate motherhood. Similar to Kinsley, D’Amato didn’t believe the law had a place in determining the existence of paid surrogacy. He wrote, “[m]ore important, the law has little business getting into these private, and often painful, family decisions. The law deals in words, not emotional reality; behind it stands the policeman with a nightstick and handcuffs.”68 D’Amato preferred that courts stay out of the surrogacy business. In order to accomplish this, D’Amato argued that courts simply refuse to enforce the

67 Michael Kinsley, “Viewpoint: Baby M and the Moral Logic of Capitalism,” Wall Street Journal, April 16, 1987.

68 Anthony D’Amato, “Surrogate Motherhood Should be Privatized,” New York Times, March 3, 1987.

71 agreements. Under his vision, the market would then be able to dictate the demands and profitability of the practice. He argued, “[p]rivate enterprise would then fill the gap. It would be the agency’s (brokers) responsibility to find surrogate mothers who are reliable and who say they will give birth to a baby and turn the baby back to the agency.”69

Under D’Amato’s proposal, that market would then be able to dictate the result. If too many mothers chose not to fulfill their end of the “bargain” then the broker would not receive a lot of business.70 In other words, the market would dictate the outcome.

Michael Kinsley and Anthony D’Amato were not alone in their belief that the marketplace dictated the desirability, or lack thereof, of legally enforcing surrogacy arrangements. Individuals wrote into editorial boards across the country voicing support for the practice. In a letter to the Wall Street Journal, Robert Coolidge of Chicago responded to a Journal editorial calling for greater regulation over the emerging use of reproductive technologies, and in particular, the use of surrogate mother contracts. In that editorial, entitled “Whose Baby M?,” the Wall Street Journal wrote, “[i]f the contract is invalidated, this will be the end of the surrogate business. If biological fathers can’t rely on such agreements, they probably won’t be willing to take the risk that they won’t

69 Anthony D’Amato, “Surrogate Motherhood Should be Privatized,” New York Times, March 3, 1987.

70 Ibid. He wrote, “[i]f many surrogate mothers changed their minds, an agency would lose credibility. Thus it would have a strong financial incentive to find reliable surrogate mothers (and use whatever psychological screening seems appropriate – with the full consent of the applicants). In those cases where the surrogate mother changes her mind, my no-contract proposal would protect the most vulnerable party: the surrogate mother. Having been through a pregnancy and maybe not having many more chances for future pregnancies, she has, I believe, the strongest interest in keeping the child.”

72 get to keep the baby.”71 In other words, the Wall Street Journal believed that by refusing to enforce the surrogacy contract in the Baby M case, along with other surrogacy arrangements, couples would not enter into agreements with prospective surrogate mothers. However, Coolidge took umbrage with the Journal’s advocacy of judicial interference. Coolidge stated,

[i]ndividuals using their voluntary economic and social institutions, rather than legislators, have the knowledge and motivation to best cope with complex social issues. The strength of this country is not the expansive use of politics, but rather the evolving free market, not only of goods and services but also of ideas, which the Wall Street Journal chronicles and, usually defends.72

Coolidge was advocating a similar position as Michael Kinsley and Professor D’Amato.

He believed that one of the United States’ greatest attributes was its ability to allow individuals to make their own choices. Moreover, he believed that if people didn’t think the practice was advisable, they wouldn’t be willing to enter into surrogacy contracts in the first place.

The views articulated by journalists and citizens writing into the editorial boards of newspapers across the country were also echoed by some politicians in Washington.

Indeed, Robert Coolidge found he was in agreement with the President of the United

States. Following the conclusion of the trial and the ruling by Judge Sorkow, President

Ronald Reagan was questioned about his views on the Baby M litigation. Reagan agreed with Judge Sorkow’s ruling. Reagan stated,

71 “Whose Baby M?,” Wall Street Journal, January 22, 1987.

72 Robert Coolidge, Letter to the Editor, Wall Street Journal, February 17, 1987.

[w]ell, an agreement had been reached . . . the agreement was violated by one party. The individual who had made the arrangement could not have a child otherwise. And the surrogate mother in this case can have a child at will and has had them and it just seemed to me that it was wrong for her to then turn around and make the decision she did.73

President Reagan expressed the views of many regarding the question of whether the courts should enforce the agreement between Mary Beth Whitehead and the Sterns.

However, Reagan’s comments also illustrate how the President considered the appropriate method of determining the acceptability of surrogacy contracts as the marketplace.

The belief that the marketplace was the proper forum for deciding the question of whether or not surrogacy contracts were appropriate was not shared broadly in the United

States. Journalists and academics resisted the suggestion that markets could make such a determination, and more importantly, that the market would arrive at the proper determination. Kenneth Vaux, a professor of ethics in medicine at the University of

Illinois at Chicago, wrote an opinion article for the Chicago Tribune. As the Baby M case was being decided, Vaux argued, “[t]he moral crises of Western culture is created, in part, because we see technological innovations as items to buy and sell in the marketplace. Parenting, baby-making, fertility and gestation are more and more seen as commodities of exchange.”74 Vaux believed that treating technological innovations in healthcare as mere commodities presented problems for society and unique ethical dilemmas. Vaux continued, “[o]ur utility-based views of reality and human meaning also

73 “Reagan Backs Ruling in ‘Baby M’ Case, The Washington Post, April 13, 1987.

74 Kenneth Vaux, “Baby-making to Buy and Sell,” Chicago Tribune, April 6, 1987. 74 lead us to deal with profound human transactions, such as birth and death, sexuality and suffering, as matters of adversarial law . . . we should not then be surprised when they become matters of calumny and contract.”75 For Vaux, the fundamental problem with the surrogacy contract at issue in the Baby M litigation was its reliance on the market. By embracing the market for issues of life and death, society should expect the complications and problems highlighted in the Baby M case.

Kenneth Vaux was not the only prominent academic to join in the public discussion of surrogacy contracts and the marketplace. In a separate opinion article, nationally recognized bioethicist Alexander Capron wrote of the influence money had on surrogacy contracts. In particular, Capron was concerned about the morality of baby- selling. Capron contended, “[t]he claim that the payment is for the surrogate’s services, not for the baby, is refuted by the contracts themselves.” He continued, “[t]hey provide that payment will not be made if the woman miscarries. Moreover, while the agreement is made before the pregnancy, payment is made only after a surrogate and her husband sign away the child to the adoptive parents.”76 According to Capron, the markets shouldn’t be involved in surrogacy. The exchange of money was not for the services, but for the child. As such, paid surrogacy was a means of accomplishing transactions for human beings.

75 Kenneth Vaux, “Baby-making to Buy and Sell,” Chicago Tribune, April 6, 1987.

76 Alexander Morgan Capron, “Surrogate Contracts: A Danger Zone: All Parties Open to Exploitation if Child is Treated as Property,” Los Angeles Times, April 7, 1987.

Capron persisted in his opinion article by linking the financial relationship between the parties with the child’s treatment as property. He suggested, “[l]ooking at the contract, it is apparent that [William] Stern planned to pay the Whiteheads for the equivalent of a “quit claim” to their interests in the baby, who was thus treated like property.”77 Capron’s concern about the child being treated similar to property led him to consider the future for children of other surrogate births. In particular, he wondered how they would feel about their origins and their association with an exchange for services rendered or even feeling as if they were bought and purchased. He wrote, “[a]nd what about the other children of the surrogate? How secure can they feel when they learn that their brother or sister has been traded for $10,000?”78 As Capron expresses, part of the concern over surrogacy contracts was the commodification of children. As they grew and understood more about the world around them, how would these children feel about the mothers who sold them and the parents who purchased them?

The idea that a child might be treated as a commodity was also prevalent in the writings of journalists. Russell Baker of the New York Times described a list of different types of financial figures listed in the news during the weeks surrounding the Baby M trial.

$50 million – This is roughly the amount various bidders paid for the Duchess of Windsor’s jewelry. $39.9 million – This is the sum paid for a Van Gough sunflower by somebody who doesn’t want to be identified. $11.75 million – This is the minimum payment guaranteed Marvin Hagler

77 Alexander Morgan Capron, “Surrogate Contracts: A Danger Zone: All Parties Open to Exploitation if Child is Treated as Property,” Los Angeles Times, April 7, 1987.

78 Ibid.

for appearing in a boxing match last night with Sugar Ray Leonard . . . $8 million – This is the amount, according to the Rev. Oral Roberts, that God said the Reverend’s flock had better come across with if they wanted Mr. Roberts to live to see another April.79

All of these figures were compared to the total sum paid in the Baby M case by the Sterns

-- $17,500. Baker, however, added to Capron’s concerns and expressed the possibility that the growing baby industry would start to advertise and market. He worried that children would become similar to the goods sold in stores everyday. Baker wrote,

“[l]egitimizing a baby industry opens the door for marketing experts to hype the quality of its tiny merchandise by hyping the production record of its manufacturers.”80 Like others, Baker foresaw the potential for exploitation. Baker envisioned a marketplace dominated by wealthy purchasers and impoverished prospective surrogate mothers. He deduced that women would be perused and viewed as a manufacturer of a good. He continued, “[t]here will be plenty of customers willing to pay through the nose once hype sets its hook in the marketplace . . . You can be sure there are plenty among them ready to pay several million for the right to boast not only that they got a perfect specimen.”81 For

Baker, an unregulated surrogacy marketplace invited the very treatment described by those visiting Noel Keane’s clinic in Michigan.

Similar to some journalists and academics, feminist activists also utilized the rhetoric of commoditization when discussing children from surrogacy agreements.

79 Russell Baker, “Bring Back the Stork,” New York Times, April 7, 1987.

80 Ibid.

81 Ibid.

However, these activists also blamed the media for sensationalizing reproductive technology and treating it as a wonder product. Indeed, in Charlotte Allen’s coverage of the feminist reaction to the Baby M case, she made a similar comparison. She wrote, “[i]f the popular press is to be believed, high-tech reproduction – in vitro fertilization, surrogate motherhood and the like – is now one of life’s miraculous givens, like the camcorder and the microwave oven.”82 In this manner, Allen’s comparison illustrates the fears of Arthur Capron. She reiterates the existing association between children of surrogacy agreements and commercial goods expressed in news accounts and feared by commentators.

Charlotte Allen, however, also demonstrated that the critique emphasized by

Capron also applied more broadly to women’s bodies. Allen reported some of the larger feminist concerns regarding the use of women’s bodies as the means of creating these goods. Under this critique, women’s bodies were compared to the means of production.

Women were essentially viewed as the manufacturers of babies. Allen reported, “[i]s it more respectful of a woman’s dignity to forbid her body to be used as an incubator or to let her freely sell her reproductive services just as men can? The answer depends on whether one believes that there are some things that should not be bought or sold.”83

Again, this passage indicates both journalists and society’s interrogation of paid surrogacy in terms of the engines of capitalism and economic principles. As mentioned previously, however, these modes of analysis often reverted to additional questions of

82 Charlotte Allen, “When Motherhood is for Sale,” Wall Street Journal, January 8, 1991.

83 Ibid. 78 exploitation. Similar to other journalist, Allen openly speculated in her writing about the way markets in baby-selling and surrogacy permitted or paved the way for exploitation.

She suggested, “[a]lthough permitting surrogacy contracts squares with most feminists’ support for abortion rights, it does not square with suspicions among many that the contracts favor fathers over mothers and turn lower-income women into breeders for those with more money (an estimated 40 percent of surrogate mothers are on welfare).”84

Allen’s writing illustrates a deep concern that feminists expressed over the potential for exploitation. Allen’s writing explicitly demonstrates this point by stating that lower income women were being exploited, and that as many as 40 percent were on welfare.

The notion of turning women into machines for reproduction was a common thread among those who opposed surrogacy contracts. In an article written by Raymond

Coffey, appearing in the Chicago Tribune, he characterized the practices as “wombs for rent.” This construction of the surrogacy contract certainly offered up images of women as manufacturers or cogs in the market economy. He stated, “as a society, do we really want to sanction the idea of wombs for rent, of motherhood for hire on a nine-month lease?”85 Under this analysis, Coffey suggests that the argument is also made that it is not just the “have’s” taking advantage of the “have nots.” The issue with surrogacy contracts extends deeper into our understanding of who can provide a better life for the child. He suggested, “[a]nd the issue is a lot more complicated—and a lot more

84 Charlotte Allen, “When Motherhood is for Sale,” Wall Street Journal, January 8, 1991.

85 Raymond Coffey, “Do We Really Want to Sanction the Idea of Wombs for Rent?,” Chicago Tribune, April 3, 1987.

79 dubious—than a New Jersey judge’s simple decision that Baby M’s best chance for a happy life lay with someone other than her natural mother.”86 In other words, Coffey reiterated the concerns raised by others that a child’s future would be calculated in terms of dollars and cents – at least in terms of how many dollars and cents a particular set of parents could offer the child. The larger the dollar figure possessed by the parents, the better chance the child had a bright future. If viewed in such terms, a child would always be placed with a family with economic means.

The idea that women’s reproductive capacities were being turned into the equivalency of manufacturing plants was only a component of feminist criticisms aimed at the monetization of motherhood. Feminist activists also equated the surrogacy agreement to institutionalized slavery. Gena Corea used such language when describing surrogacy contracts. She was quoted in news coverage as saying, “[t]he rise of the surrogate industry does not take place in isolation . . . [i]t’s part of the industrialization of reproduction.”87 In this way, Corea asserts a common feminist critique of reproductive technologies – an entire industry was being constructed around women’s reproductive capacities. Those who took part in facilitating the arrangements would not disagree. As demonstrated above, most surrogacy brokers believed an entire business community was being created around surrogacy. This business community, according to the brokers, existed to fill a need in the marketplace. Whether the marketplace was a valuable means

86 Raymond Coffey, “Do We Really Want to Sanction the Idea of Wombs for Rent?,” Chicago Tribune, April 3, 1987.

87 Keith Schneider, “Mothers Urge Ban on Surrogacy as Form of Slavery,” New York Times, September 1, 1987. 80 of establishing the extent of the practice of surrogacy contracts or a method of exploitation depended on who was constructing the analysis.

Nevertheless, Mary Beth Whitehead viewed the controversy through the prism of class and exploitation. Following the original trial in the case, Whitehead testified before the United States’ Congress. She informed members of Congress that from her own experience, surrogacy contracts were indeed exploitation. Moreover, she believed that legislation was needed to make them illegal. She testified, “[t]he economics of surrogacy in this country are simple . . . the sperm donors are well-off and the women they hire to bear their children generally are not.”88 She continued, “that creates a breeder class of women . . . and diminishes the surrogate mother’s chances in court if the child’s custody is contested.”89 These quotes exemplify Whitehead’s own perceptions of her struggle to retain custody of Baby M. According to Whitehead, the Stern’s money and education gave them a distinct advantage when the case was litigated. Moreover, Whitehead’s testimony also reveals how her association with feminist activists shaped her public comments.

As the trial attracted more and more attention, members of various groups and organizations started surrounding Mary Beth Whitehead. Her reference to the establishment of a breeder class was a common talking point of feminist opponents to surrogacy agreements. In addition, she started to refer to surrogacy as a form of slavery.

In a New York Times article, describing her time with members of Congress, Keith

88 “Ban on Surrogacy Considered,” Chicago Tribune, October 16, 1987.

89 Ibid. 81

Schneider wrote, “[a] group of mothers who agreed to bear children under surrogacy contracts said today that they wanted their babies returned and called on Congress and state governments to outlaw the practice, which they called ‘an institutionalized form of slavery.’”90 As the choice of words indicates, the concept of class and exploitation never was far from the public debate surrounding the Baby M case.

In conclusion, the economic class of the litigants not only shaped the Baby M case, it sparked a national debate surrounding the role of money in surrogate mother contracts. The financial position of both parties, the Sterns and the Whiteheads, helped determine the outcome of the lawsuit. Expert witnesses interpreted the Stern’s advanced degrees and high-paying jobs as markers of a more suitable home for Baby M. The

Whitehead’s failure to attain advanced education, their inability to manage their finances, and low incomes suggested a home filled with instability and uncertainty. These terms were coded language employed during the trial by attorneys, expert witnesses and even the trial judge. While the expert witnesses referred to the “best interest of the child” and applied phrases, such as, stability and value education, the real significance was that the

Whiteheads didn’t belong to a higher economic class – the Sterns did. Judge Sorkow reiterated this analysis in his ruling. Like the expert witnesses, Judge Sorkow preferred to couch his language in terms of “stability” as it related to the legal standards for the resolution of custody. However, the evidence he pointed to in determining the stability of the home mirrored the expert witnesses, and suggested a reliance on the economic class

90 Keith Schneider, “Mothers Urge Ban on Surrogacy as Form of Slavery,” New York Times, September 1, 1987. 82 of both the Sterns and the Whiteheads. Likewise, the Supreme Court of New Jersey made a similar effort to disguise the true nature of their analysis. Yet, ultimately the best interest of Baby M meant that she would be placed with the family of better financial means.

The Baby M litigation, however, also was a catalyst for larger societal discussions regarding the function of money in surrogacy contracts. As journalists researched the emerging industry, many discovered that the men and women paying surrogates to carry a child to term were wealthy. The women who served as surrogate mothers, on the other hand, were largely economically disadvantaged. The potential for the exploitation of women’s reproductive labor became clear. Public debate over the implications for class disparity between infertile couples and surrogate mothers occurred across the United

States. Moreover, the Baby M lawsuit materialized at a time when opportunities and employment for working-class Americans were becoming more and more difficult to find. The Whiteheads were well-suited to becoming a broader symbol for the economic inequalities emerging in modern America. Journalists and academics openly questioned if economic inequality now impacted one’s ability to form a family by restricting access to surrogacy to only those who could afford it.

Moreover, the public debate concerning the influence of money in the Baby M case emerged in conversations on the most appropriate method of regulating the practice.

Allowing the marketplace to make the ultimate determination regarding the permissibility of surrogacy contracts would invite the prospect of children being sold as commodities.

The New York Times penned an editorial directly addressing the question of baby-selling at the start of the Baby M trial. The editorial pronounced,

[t]he public obligation is obvious. States need to evaluate the very idea of surrogate parenthood, decide whether it is a tolerable practice in the first place and, if so, establish guidelines just as they do for adoption and other analogous practices. Should surrogate parenthood be tolerated? Is bearing a child for someone unable to do so “a gift of love” as its enthusiasts suggest? Or is it simply baby-selling?91

In partial answer to these questions, the editorial board wrote, “[i]n any case the business is probably here to stay, which is reason enough for regulations predicated on the child’s best interests.”92 The paper then called for New York to adopt the recommendations of the state judiciary committee to help protect the children of surrogacy contracts. As such, the New York Times editorial was reflective broader calls for regulation. Yet, many believed that allowing those who wished to find answers to infertility to seek out solutions would be the best means of promoting human happiness. Those solutions could very well involve hiring a paid surrogate to carry a child to term. This debate over the appropriate role of the marketplace in determining the existence of surrogacy contracts still exists today. The Baby M case took the debate from the halls of academia to the editorial pages of newspapers. For the first time, the public engaged with the broader implications of fertility treatment. As commentators suggested, in the Baby M case, M stood for money.

91 “Giving Love, or Selling Life?,” New York Times, January 9, 1987.

92 Ibid.

Chapter 2: M is for Motherhood

As many times during the nine months as I might have spoken to her as if she were a baby—I mean silly things like bumping my belly against the counter when I was doing dishes, patting it, and saying, “I’m sorry” – she just didn’t seem like a baby. Oh, I heard the heartbeat. I saw the sonogram. I felt the fluttering and then the kicking—but it was not like hearing my daughter cry. I just couldn’t visualize a baby. I don’t think anybody can. She wasn’t real to me until I was actually holding her in my arms and hugging her.1 Mary Beth Whitehead

Almost from the moment litigation started, national attention engulfed the parties associated with the Baby M case and the judicial system that attempted to resolve it. For many, the stakes could not have been higher. At issue was the very definition of the

American family. In an article appearing in the New York Times the Saturday before the trial court announced its decision, Ann Taylor Fleming discussed the stakes of the Baby

M case. In “Our Fascination with Baby M: At Stake in the Trial is Our Sense of

Ourselves, Our Concept of Motherhood, of Parenthood,” Fleming challenged the popular contemporaneous understanding of the Baby M case. She wrote,

[a]ll the women I know and love or talk to or overhear have been vitriolic, defensive, ugly and empassioned [sic] about Baby M’s fate, as if she were their own. I misspeak. That’s not really what they’re concerned about, not

1 Mary Beth Whitehead, A Mother’s Story: The Truth About the Baby M Case (New York: St. Martin’s Press, 1989), 4.

Baby M herself, but what M stands for – Motherhood, pure and simple, or pure and complicated.2

In the years that immediately followed the Baby M decision, the case took on a life of its own. Supporters and detractors have cited the decision for its use of the “best interest of the child” standard, for the court’s use of public policy considerations to override the freedom of contract, and its implications for adoption law. Lost in a complex maze of legal analysis is the fundamental dispute over the ‘traditional family’ that the Baby M case represented. Fittingly, Ann Taylor Fleming was correct in her description of the case – M stood for motherhood.

To the public, the Baby M case embodied a complex set of issues that demonstrated how modern technology was beginning to challenge conventional, dominant conceptions of the nuclear family in American society. For some, the Baby M case was an illustration of the superiority and accomplishments of modern science. For others, the challenge to the ‘traditional family’ was not a benign technological occurrence, but a real threat to the moral, ethical and normative fabric binding society.

As Ann Taylor Fleming wrote just before the trial verdict,

[t]he passion generated by the Baby M case is so intense that it must connect to some deep life threat we all feel, some sense that we’re approaching a dangerous border, or have already crossed it, and cannot turn back; some sense that in our hubris, we have tempted fate, or the gods, and will somehow pay.3

2 Ann Taylor Fleming, “Our Fascination with Baby M: At Stake in the Trial is Our Sense of Ourselves, Our Concept of Motherhood, of Parenthood,” New York Times, March 29, 1987.

3 Ibid.

The imaginary border Fleming described seemed to be materializing in the spring of

1987. Of the many borders the Baby M case crossed, whether it was the technological barriers to assisted reproduction or the legal innovation of the surrogacy contract, none were more contentious than the boundaries enveloping the conventional structure of the

American family.

This chapter explores the heated and intense dispute surrounding the Baby M case in the much larger context of American society’s evolving understanding of the family and the role of motherhood. As scholars have questioned the relationship between motherhood and society for decades, a complex picture of change and stasis has emerged.

It would be inaccurate and wrong to view the relationship between motherhood and society as bearing no resemblance to prior constructions and understandings. Moreover, to create a perception of the American family and motherhood as static, traditional and unyielding is equally incorrect. Instead, over the course of the twentieth century, the family in the United States has both exhibited characteristics of prior constructions, as well as, continuity and transformation. What was unique about the Baby M case is that, in one event, it captured the tension between these two energies and forced Americans to confront the way technology exacerbated this naturally occurring tension.

The Baby M case provided a space to contest the construction of the American family. Moreover, it offered a moment when Americans questioned the role mothers played in both private family life and the overall function of motherhood in American society. In the pages that follow, this chapter will investigate how characteristics associated with Victorian understandings of motherhood were sustained and challenged

87 by the Baby M case. In addition, this chapter examines how the Baby M case sparked an intense debate on the qualities of motherhood – a debate that mobilized feminists and social activists, as well as, conservatives. In this regard, this chapter studies how commentators, lawyers and judges asked: what makes a mother “fit” or “unfit”?

Motherhood, Family and American Society

Historians and legal scholars alike have studied the formation and construction of family law during the nineteenth century. Of particular importance is Michael

Grossberg’s Governing the Hearth: Law and the Family in Nineteenth-Century America.

Grossberg documented how the nineteenth century produced competing tensions that formed the structure of family law in the United States. Grossberg wrote, “[t]he problems of family governance were greatly exacerbated by twin tendencies of the era: a reliance on the private family as the primary institution for confronting social and economic change, and a dependence on the law for resolving public and private disputes.”4 Grossberg’s observation that the private family is a primary institution confronting social and economic change, along with the law’s influence on public and private disputes is equally applicable to the tensions produced by the Baby M litigation in the 1980s. An unsettling aspect of the Baby M case, for many journalists and commentators, was how technology was seemingly changing family formation. The family, for many Americans, appeared to be the anchor and the source of stability in times of uncertainty. Fundamentally altering this process, by the use of surrogate

4 Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: The University of North Carolina Press, 1985), viiii. 88 mothers, reproductive technology challenged the very notion of the family as a source of permanency.

Grossberg’s study also explores the evolution of the law’s approach to child custody. Prior to the late nineteenth century, the law provided a preference for paternal custody, along with a preference for maintaining particular blood relationships between children and their custodians. However, the nineteenth century saw a transformation of the legal approach to child custody cases. The long-held preference for paternal custody was eroded by a change in social attitudes regarding childhood. With a view that childhood extended into adolescence, courts started to examine custody from a mother’s ability to nurture a child.5 In addition, courts during the nineteenth century started to approach child custody decisions increasingly from the perspective of what would be best for the child and not simply the parents’ rights. As Grossberg noted, “[a]s the antebellum bench extended greater legal protection to surrogate parents,6 judges operating on their vague fictional model of the fit parent solidified the hold of the best-interest-of-the-child doctrine on American custody law.”7 These two principles combined to create a legal environment that remained largely intact through the twentieth century, and provided the foundation for the legal approach to the Baby M litigation.

5 Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: The University of North Carolina Press, 1985), 253.

6 By “surrogate mothers,” Grossberg is referring to a contemporary term used to described modern adoptive mothers.

7 Ibid, 254. Grossberg’s nineteenth-century “best interests” approach is more akin to modern constructions of the “tender years doctrine.” 89

Another topic of study, by scholars and historians, has been the meaning of motherhood in American society. Scholars have noted that during the nineteenth century,

Americans held the conviction that men and women possessed clearly delineated roles.

These roles were part of a much more complex structure of ideas and philosophies, and often differed from the historical realities of everyday life. Historians discussing these ideas have identified larger categorizations. For example, historians have categorized these ideas under the umbrella of terms, such as “separate spheres” and “the cult of true womanhood.” The “cult of true womanhood” describes the vision of American society as separated into distinct spheres. These spheres could be labeled as the “public and private,” “work and home,” or the “political and the familial.” Gender expectations associated with each sphere dictated the role of women in each of those domains. In other words, women were relegated to the areas of private, home life associated with the family. Under this ideology, she was not expected to take part overtly in political life or perform work outside of the home. An important feature of the “cult of true womanhood” was women’s role as mothers. Her ability to raise her children in a virtuous fashion, preparing them for adulthood and the assumption of responsibilities was critical to the nation’s interest. While this idea often inhibited women from pursuing professional lives outside the home, it increased the visibility and importance of women inside the home. Moreover, it facilitated a place for women in social activism and reform movements during the nineteenth century.8

8 For more on this topic, see Paula Baker, “The Domestication of Politics: Women and American Political Society, 1780-1920,” The American Historical Review 89, no. 3, June 1984; Nancy F. Cott, The Bonds of Womanhood: “Woman’s Sphere” in New England, 1780 – 1835 (New Haven: 90

In addition, the separate spheres, with women occupying the home, were viewed during the period as a way to protect women from the changes wrought by the market economy. The market economy also shaped women’s lives and motherhood in other ways. Work and employment occurred increasingly outside the home. However, the preservation of the home as a sanctuary and a refuge was seen as part of the moral justification for the separate spheres. The ability of women to create an environment that protected the family from the changing world was seen as fundamentally important. Of course, these ideas did not always reflect the realities of women’s lives. Women still worked outside the home and still participated in society in ways that were not confined to the home and the family. However, the expectations and philosophies associated with the “cult of true womanhood” and the “separate spheres” shaped the way many viewed the family and the idea of motherhood in American society. Over a century later, some of these views would be reflected in the commentary surrounding the Baby M case.

Historians have struggled to clearly define the temporal boundaries of the precepts that comprised the ideas of “separate spheres” and the “cult of true womanhood.” Historian Rebecca Jo Plant has argued that the dominance of the Victorian ideology surrounding the role of motherhood in American society ends with the rise of the primacy of scientific motherhood.9 She writes,

Yale University Press, 1977); Barbara Welter, “The Cult of True Womanhood, 1820 – 1860,” American Quarterly 18 (1966): 151 – 74; Sylvia Hoffert, Private Matters: American Attitudes toward Childbearing and Infant Nurture in the Urban North, 1800 – 60 (Urbana: University of Illinois Press, 1989); Mary P. Ryan, The Empire of the Mother: American Writing about Domesticity (New York: Harrington Park Press, 1982).

9 Scholarship exploring the concept of scientific motherhood, include: Rima D. Apple, Perfect Motherhood: Science and Childrearing in America (New Brunswick, Rutgers University Press, 91

the interwar period witnessed the emergence of an antimaternalist critique that ultimately helped to discredit four long-standing precepts that had defined late Victorian motherhood: the belief that the mother/homemaker role was a full-time, lifelong role, incompatible with the demands of wage earning; the notion that motherhood was not simply a private, familial role, but also the foundation of female citizenship; the conviction that mothers should bind their children (especially their boys) to the home with “silver cords” of love in order to ensure their proper moral development; and the assumption that motherhood entailed immense physical suffering and self- sacrifice.10

As Plant describes, motherhood in the twentieth century became less oriented towards the public and more focused on the private home. It was no longer the dominant ideology that women should make the raising of the next generation of leaders and civic servants their full-time job and life’s work. Moreover, as Plant discusses, women no longer were bound to the selfless framework of childrearing.11 As noted in the quotation above, during the same period historians have observed the rise of antimaternalist sentiment or mother blaming. This antimaternalist sentiment accused mothers of emasculating

American men. Scholars have argued over the causal forces that helped shaped this

2006); Julia Grant, Raising Baby by the Book: The Education of American Mothers (New Haven: Yale University Press, 1998); Kathleen W. Jones, Taming the Troublesome Child: American Families, Child Guidance, and the Limits of Psychiatric Authority (Cambridge: Harvard University Press, 1999); Molly Ladd-Taylor, Mother-Work: Women, Child Welfare, and the State, 1890 – 1930 (Urbana: University of Illinois Press, 1994); Molly Ladd-Taylor, Raising a Baby the Government Way: Mothers’ Letters to the Children’s Bureau, 1915 – 1932 (New Brunswick: Rutgers University Press, 1986); Alice Boardman Smuts, Science in the Service of Children, 1893 – 1935 (New Haven, Yale University Press, 2006); and Barbara Ehrenreich and Deirdre English, For Her Own Good: 150 Years of Experts Advice to Women (Garden City: Anchor Press, 1978).

10 Rebecca Jo Plant, Mom: The Transformation of Motherhood in Modern America (Chicago: University of Chicago Press, 2010).

11 Ibid.

92 antimaternalist sentiment. Some have suggested the rising women’s movement, suffrage campaign and economic opportunities seen by women during the progressive period.

However, for this chapter, it is important to note the existence of these forces, as their echoes are visible in the Baby M litigation.

In her monograph, Mom: The Transformation of Motherhood in Modern America,

Plant envisions two competing conceptions of American motherhood, the traditionalist and the modernist. Plant describes modernists in the following manner, “modernists envisioned motherhood in far less exalted terms. Mothers, they insisted, were simply female individuals—some admirable, some not—who had been through a certain biological experience.”12 This portrayal is in stark contrast to the ideals that shaped

Victorian conceptions of motherhood. Largely gone were the beliefs of the selfless individual raising children in a wholesome environment as a woman’s sole life’s work.

The ideal of raising children for the public good in service to the democratic vision of the nation had also largely disappeared. In its place, Plant describes a much more reasonable image of a mother that was not confined to the private home to raise children for the public good, nor was she seen as unfailing and infallible.

The transformation in the way motherhood was viewed in American society articulated by Plant above, however, shouldn’t be taken as evidence of a decline in the relevancy or the importance of the family in American life. Scholars have also long explored the cultural and social significance of family life in the United States following

12 Rebecca Jo Plant, Mom: The Transformation of Motherhood in Modern America (Chicago: University of Chicago Press, 2010), 6.

93 the Second World War. As historian Elaine Tyler May stated, “the evidence overwhelmingly indicates that postwar American society experienced a surge in family life and a reaffirmation of domesticity that rested on distinct roles for women and men.”13

As May suggests, even as the view of motherhood had changed from the Victorian era, it did not alter the overall structure of gender roles as they related to family life. Men and women still possessed distinct responsibilities in the family, with the ideal vision of men working outside the home as providers while women maintained the house and cared for the children. In Homeward Bound: American Families in the Cold War Era, Elaine Tyler

May explains the notion of domestic containment, the belief that the home was viewed by postwar Americans as a refuge from the harmful forces of the world. Moreover, the home and family was perceived to be a place that could provide stability. May described women entering the workforce in the following way,

[t]here were also increasing numbers of married women who worked outside the home, a few of them managing to juggle domestic responsibilities with full-time careers, although most worked in jobs or community volunteer efforts that were secondary to their responsibilities as homemakers.14

May’s description of motherhood, when paired with Plant’s work, paints a portrait of postwar motherhood that retained some of the ideals of the Victorian period, while discarding others. Women were still viewed as the primary caregivers of children and were expected to maintain the home. Yet, the perception of motherhood as a public

13 Elaine Tyler May, Homeward Bound: American Families in the Cold War Era (New York: Basic Books, 2008), 6.

14 Ibid., 16. 94 concern had shifted towards a more private construction. Again, no longer was the emphasis placed on training or preparing children for leadership roles in the emerging democratic republic. Instead, motherhood was focused more internally on individual families.

The construction of motherhood, as well as women’s role in American society, was once again reevaluated and challenged by social movements and activists in the

1960s and 1970s. Feminists and activists questioned the structure of motherhood described above by May. Nevertheless, it is important to keep in mind that the position taken by feminist activists was not monolithic, nor was it descriptive of all individuals considering themselves or identifying as a feminist. A uniform critique or opinion of marriage, motherhood and the family did not exist. Yet, it is informative to understand that women and activists were challenging the construction of the family and the vision of motherhood described by Elaine Tyler May. Historian Sara Evans writes,

[a]lthough younger feminist radicals were divided on the issue of marriage, most indicated it and the nuclear family as key sources of women’s oppression, claiming that women were “kept in their place” and prevented from developing autonomous identities through their roles as wives, mothers, and daughters.15

As Evans explains, many feminists did have strong critiques of the nuclear family in

American society. Many believed that it represented a source of oppression resulting from limited opportunities for women and consequently confining them to the home.

Evans continued, “[y]oung women in consciousness-raising groups across the country

15 Sara Evans, Tidal Wave: How Women Changed America at Century’s End (New York: Free Press, 2003), 55.

95 critiqued their own upbringing and their mothers’ restricted roles.”16 Again, this is illustrative of an American vision for motherhood that was contested and debated. It was not static, nor was it unyielding. The Baby M litigation would demonstrate that not only the role of motherhood, but also the very definition of what was meant by the term

“mother” was fluid and contested in the United States.

In many ways, the Baby M decision contained threads of these earlier debates.

While the controversy and public discourse surrounding the Baby M trial never contained assertions that a woman’s sole responsibility and goal should be centered on raising the family, a discussion resembling the “traditionalist” versus “modernist” debate did emerge. While it undoubtedly differed from the transition that Plant describes, from the

Victorian period to scientific motherhood, it did position those who wished to retain older understandings of motherhood against individuals embracing new and emerging constructions. As described below, the definition of what constituted the term “mother” would be debated during and immediately following the Baby M trial. The new reproductive technology questioned previous assumptions about the very definition of the word mother. As Plant described, scientific motherhood crafted a definition with the underlying assumption that women who were mothers had a shared “biological experience.” The Baby M case revealed that this understanding might be more complex.

Who was the mother? Was the mother a woman who cared for and nurtured the child?

Was the mother the woman who gave birth to the child? Once it was possible for

16 Sara Evans, Tidal Wave: How Women Changed America at Century’s End (New York: Free Press, 2003), 55. 96 surrogacy to include surrogates that were not genetically related to the child, did it matter who was the genetic parent? Was she the mother of the child? All of these questions were debated and discussed during the Baby M trial.

This public debate between more traditionalist notions regarding the construction of motherhood and more modernist formulations also shared ideological and political underpinnings. When the trial court decision was released, some conservative commentators could barely contain their glee that the warnings they had been broadcasting for months, if not years, had come true. They had warned of the consequences of reproductive freedom. They had forecasted the dire results of unfettered access to choice. Since the Roe v. Wade decision, conservative voices expressed concern for the unforeseeable consequences of the legal decisions. Following the Baby M trial,

Charles Krauthammer wrote, “[f]eminists have tenaciously—and successfully—argued that women should have control of their own bodies. If they should have the right to terminate the life of a fetus, how can they be denied the right to grow one for a fee?”

Krauthammer continued, “[h]aving won the battle for unfettered ‘reproductive rights,’ feminists can hardly argue that some black-robbed male judge should deny to surrogate mothers the freedom to exercise those rights as they wish.”17 Krauthammer’s comments focused on another aspect of the divide between more “traditionalist” visions of motherhood and more “modernist.” Krauthammer was concerned about how the Baby M decision violated what he viewed as a long-stable version of motherhood – one that was

17 Charles Krauthammer, “A Triumph of Feminist Ideology…,” The Washington Post, April 3, 1987.

97 simpler and where the woman who gave birth to the child was also the mother. His antagonism toward feminists was not aimed at their opposition to surrogate motherhood, but their support for abortion rights. Many feminists were concerned that the Baby M decision and paid surrogacy would reduce women and mothers to mere vehicles for reproduction. In other words, paid surrogacy limited the understanding of what constituted motherhood as centered only on the reproductive attribute. This aspect of the debate, concerning the definitional boundaries of motherhood, is discussed in greater detail below.

Finally, the Baby M case illustrates how aspects of scientific motherhood, as well as mother blaming, persisted and were revived during the litigation. During the trial, experts were brought before the court to testify about the qualities that made a woman a

“good mother.” These expert witnesses examined the lives and homes of both the Sterns and the Whiteheads. However, of particular interest was the behavior and parenting style of Mary Beth Whitehead. Mary Beth was compared to “ideal” mothering techniques, then labeled as the more unsuitable prospective mother by the psychiatrists retained by the court-appointed guardian ad litem. This process strongly resembled the principles underlying scientific motherhood, where experts professed quantifiable qualities of good mothers. Moreover, it demonstrated the tendency of attorneys and expert witnesses to resort to mother blaming. Attorneys discussed during trial how Mary Beth’s parenting style led to children unable to branch out on their own and grow. In other words, Mary

Beth was labeled a woman that smothered her children and impeded their development.

The following section, “Fit” versus “Unfit,” elaborates on this feature of the debate resulting from the Baby M case.

“Fit” versus “Unfit”: Using Experts to Determine the Qualities of a “Good Mother”

Throughout the Baby M litigation, the central question concerning most observers was which set of parents would be entitled to custody rights over Baby M. This fundamental question pervaded both legal considerations and the news coverage. In many instances, public consumption of the litigation was ultimately driven to the correct legal concerns crucial to the case. The legal analysis for many of the disputes at issue hinged on the “best interests of the child” – the interests of Baby M. At times, these concerns were complicated by broader societal problems, such as, class and access to education. Since the litigation turned on which set of parents would be better for Baby

M’s growth, development and future, the lawyers in the case devoted substantial resources and energy into arguing which litigants were “fit” to be Baby M’s parents. At trial, the question of parental fitness became one of the principal issues of the case.

While all the parents, William and Elizabeth Stern, Richard and Mary Beth Whitehead, were discussed; hours of testimony were devoted to the singular argument of Mary Beth

Whitehead’s aptitude for motherhood. Psychiatrists and mental health experts testified regarding Mary Beth’s mental health and parenting skills.

Accordingly, the court appointed guardian ad litem Lorraine Abraham to look after the interests of Baby M. As a result, Abraham consulted a number of psychiatrists in an effort to determine Mary Beth Whitehead’s fitness to be a mother. In some ways, this created an alternate legal universe, because Mary Beth Whitehead was already a 99 mother. Regardless of the court’s findings, she would remain the mother and parent of her two other children – even if the testimony were to characterize her as “unfit.” This was possible given the use of the “best interest of the child” as the legal standard to determine custody. In the court’s opinion, the question wasn’t whether or not Mary Beth

Whitehead singularly was “fit” to be the mother and legal custodian of Baby M, but rather which set of parents would be better situated to raise Baby M. This distinction is worth noting since in the court of public opinion, and by the characterization of the lawyers, the trial was very much about whether or not Mary Beth Whitehead was a “fit” parent and mother to any of her children. In the court of public opinion, the more nuanced distinction of where the child’s best interest lay was lost in a tidal wave of legal tactics, psychological characterizations and dispersions cast by all of the parties involved; however, none more so than Mary Beth Whitehead.

In total, eleven health professionals examined or were consulted on Mary Beth’s mental health, which was viewed as a primary factor in evaluating her overall parental fitness. Many of the health professionals found some symptoms of a diagnosable mental health disorder. However, ten of the eleven determined that the symptoms presented by

Whitehead did not establish sufficient grounds to officially diagnose Mary Beth with an illness as described in the Diagnostic and Statistical Manual III. The exception, Dr.

Schechter, of the University of Pennsylvania Medical School, determined that Mary Beth

Whitehead should be diagnosed with mixed personality disorder.18 In many ways, an

18 In the Matter of Baby M, 217 N.J.Super. 313 (1987), 359.

100 official diagnosis was irrelevant. While Dr. Schechter’s diagnoses was certainly negative testimony for Mary Beth Whitehead, the cumulative testimony of all of the mental health experts characterizing Whitehead’s behavior in a damaging light, with regards to her character and fitness to be mother, was catastrophic to her chances of prevailing in the case.

One of the experts that testified during the trial was Dr. David Brodzinsky, a professor of Psychology at Rutgers University. On the witness stand, Dr. Brodzinsky described his clinical practice as involving psycho-diagnostic analysis, forensic custody work, and post-adoption counseling. In addition, he defined his research as shifting from cognitive development early in his career to the “impact of separation and loss on children.”19 Given the nature of the Baby M case, where the child would ultimately be separated for long periods of time from one of her biological parents, Dr. Brodzinsky’s testimony was critical in establishing what was considered “best” for Baby M. In describing his work in the area of children’s understanding of adoption, Dr. Brodzinsky stated, “[t]he work has been focused on how children come to understand what adoption means, their reaction to that growing knowledge, the implication for griefing [sic] the loss of birth parents, [and] the loss of siblings.” As with experts in many legal cases, when first contacted about the Baby M case, Dr. Brodzinsky was skeptical about working with the lawyers. While he was interested in the potential for positive good, he wanted to

19 Testimony of Dr. Brodzinsky, February 23, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 9.

101 make it clear that he had no interest in advocating for one party over another. Instead,

Dr. Brodzinsky wished only to serve in the role of a child advocate.20

Before the trial began, many of the psychiatrists retained by the guardian ad litem met to discuss the evaluation and assessment process. In his initial meeting with Lorraine

Abraham, Dr. Brodzinsky informed her that he had a philosophical leaning towards birth mothers. This philosophical leaning isn’t surprising. Many of the experts retained by

Abraham were involved in research suggesting a child was best served, more often than not, in the care of the birth mother. While his philosophical leaning may have been towards birth mothers, he made clear that this wasn’t an inclination towards Mary Beth

Whitehead.21 This discussion became a topic of his testimony at trial, and is important to note because it becomes a valuable point of reference. Since Dr. Brodzinsky, along with other evaluators, was predisposed to birth mothers, his recommendation that the child was better served by placement with the Sterns carried significant weight.

The role of the psychiatrists during the Baby M trial was conceptually simple.

Their fundamental purpose was to provide an evaluation to be utilized by the court in determining the best interest of Baby M. Dr. Brodzinsky described his purpose in the case in this manner, “[t]he task I was given essentially from you (Abraham) was to become the child’s advocate and to look at the issues involved in this case from the best interest prospective.”22 Importantly, neither the Sterns nor the Whiteheads hired Dr.

20 Testimony of Dr. Brodzinsky, February 23, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 11.

21 Ibid., 14.

102

Brodzinsky, and he was not beholden to the interests of either party. At the time of the

Baby M litigation, Dr. Brodzinsky had been involved in custody litigation for approximately three years, and he was familiar with court proceedings and the legal standard utilized to determine the “best interest of the child.”

In order to make his recommendation, Dr. Brodzinsky spoke with both the Sterns and the Whiteheads. Moreover, Dr. Brodzinsky observed the interactions between the baby and both sets of parents in their own homes. In describing his evaluation process, he stated, “[w]hen I do custody work I like to see the family in more than one context. I always go into their home, the assumption they’ll be more comfortable in their own environment.”23 As such, Dr. Brodzinsky sought to develop an overall picture, at least the best he could with the time allowed, of the Sterns and the Whiteheads. He continued,

“[o]ne of the things we ask to be able to observe [is] the baby – to observe the baby in the home rather than in some neutral place like my office.”24 This evaluation process not only was more comprehensive, but also provided the image of greater scientific objectivity and validity. Finally, in addition to interviewing and observing the families,

Dr. Brodzinsky examined the Whitehead’s other children and their school records.

Of particular interest to the court and public opinion was Dr. Brodzinsky’s assessment of the parental skills of the adults involved in the litigation. “I attempted to

22 Testimony of Dr. Brodzinsky, February 23, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 15.

23 Ibid., 20.

24 Ibid., 20 - 21. 103 evaluate the care giving skills of the adults . . . how realistic their assessment was of the impact of this process and the unique aspects of this baby’s origin on this baby now and in the future,” stated Dr. Brodzinsky.25 Of course, these assessments occurred within specific theoretical perspectives associated with the field. As such, these perspectives influenced the way Dr. Brodzinsky approached and examined the case as well as his eventual conclusions. Regarding these theoretical approaches, Dr. Brodzinsky stated,

[w]ell, I operate from a various theoretical prospective both traditional psycho-dynamic perspective which looks at the individual history and potential problems and adjustment of the individual, but I operate from family dynamic or family system prospective which is concerned [with] the way in which families interact and potential healthy patterns versus dysfunctional patterns.26

Dr. Brodzensky’s description of his approach is important, because it provides the lens through which the parents interactions with the child were analyzed. Dr. Brodzinsky did not only observe the child’s relationship with the parents, but he also examined their history and background. This allowed for a greater influence of damaging testimony and incidents to be taken into account – particularly regarding Mary Beth Whitehead.

Dr. Brodzinsky then painted a picture of the parents involved in the Baby M case.

Of particular interest, in this chapter, is his characterization of both Elizabeth Stern and

Mary Beth Whitehead. In describing Betsy Stern, Dr. Brodzinsky stated, “[t]he personality measures combined presented a picture of a person emotionally mature, warm

25 Testimony of Dr. Brodzinsky, February 23, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 27.

26 Ibid., 28.

104 and generally out-going, sensitive, empathetic, accommodating, maybe sometimes too accommodating, [and] achievement-oriented.”27 Similar to his description of William

Stern, Dr. Brodzinsky labeled Betsy Stern as thinking like a scientist. In other words, she was someone who was prone to rational thought, as opposed to, someone who reacted emotionally. While Dr. Brodzinsky attempted to be neutral, and assert that one personality type over another isn’t determinative or better, his later assessment of Mary

Beth Whitehead indicates he felt Mary Beth’s emotional reaction was inferior to the

Sterns. Dr. Brodzinsky continued to describe her as someone who liked to nurture. He felt that this may have been related to her wanting to go back to a time when she was nurtured herself. In relation to caring for a child, Brodzinsky stated, “[i]n my observations with the baby I found Dr. Stern to be strongly attached to the child, shows good caregiving skills, sensitive to read[ing] the baby’s cues, fosters independence from herself and yet fosters a sense of unity with her as well.”28 Elizabeth Stern’s rational approach to parenting, along with her caring nature was viewed by Dr. Brodzinsky as establishing her “fitness” to be a mother.

Dr. Brodzinsky’s evaluation of Mary Beth Whitehead contained some of the same observations that he observed in the other parents. For example, Dr. Brodzinsky noticed that Mary Beth also appeared to be nervous about her evaluation – a feeling shared by the other parents. However, he felt that, unlike the others, she didn’t give very complete

27 Testimony of Dr. Brodzinsky, February 23, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 60.

28 Ibid., 62. 105 answers. Mary Beth often provided short and defensive comments to his questions. In his assessment, he believed that this behavior stemmed from her fundamental, underlying belief about the litigation. Dr. Brodzinsky stated, “[s]he . . . indicated that she didn’t see a reason for it because she was the mother and that in itself should have determined the decision about custody.”29 This belief about the lack of necessity of the litigation informed Mary Beth’s understanding of the psychological testing and assessment. In other words, according to Mary Beth, her biological connection to the child precluded the psychological assessments. They were unnecessary because she knew, naturally, what was best for her child. Yet, this instinctual attitude toward parenthood troubled Dr.

Brodzinsky. It showed a lack of interest in considering the approaches and wisdom of others. In this way, it was counter to the rational approach taken by Elizabeth Stern.

Another prominent feature of the psychological testing during the Baby M case was an intelligence assessment. Dr. Brodzinsky observed, in open court, that Mary Beth

Whitehead was “low average to [an] average range of intelligence.”30 In addition, Dr.

Brodzinsky found Mary Beth to have a very impressionistic cognitive style. He elaborated that this tended to preclude someone from having “much depth to [the] processing of information.”31 In Dr. Brodzinsky’s assessment, this provided a window into her behavior and a rationale for her actions. He continued, “I think some of the

29 Testimony of Dr. Brodzinsky, February 23, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 67.

30 Ibid., 69.

31 Ibid., 73.

106 difficulty in her reporting to me anyway in terms of her history and current situation has to do with the style . . . that she processes things in a rather effortless, thoughtless, sometimes impulsive sort of way.”32 Moreover, he described her as someone prone to overreacting to minor issues. As he stated, “she will take situations that she personally did not care for and blow them all out of proportion.”33 All of this analysis portrayed

Mary Beth Whitehead as irrational, slightly unbalanced even. Under Dr. Brodzinsky’s evaluation, Mary Beth’s “fitness” to be a mother is positioned in accordance with her intelligence and emotional maturity – a connection that will ultimately be utilized by other evaluators to demonstrate her lack of suitability for parenthood.

As mentioned above, Dr. Brodzinsky went beyond an assessment of Mary Beth’s interactions with Baby M and her other children. Dr. Brodzinsky also described Mary

Beth Whitehead’s childhood. He believed that her childhood experiences informed who she became as an adult. According to Dr. Brodzinsky, Mary Beth didn’t have a lot of outside interests or worldly experiences growing up. Her world was relatively limited.

She served in her family in a domestic, caregiver role – even as a young child. She cleaned the home. She married at a relatively young age, and she took this caregiving role into the marriage. As Dr. Brodzinsky observed, “[s]he entered into marriage, became a mother very quickly and focused all of her attention on that.”34 In some ways,

32 Testimony of Dr. Brodzinsky, February 23, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 74.

33 Ibid., 75.

34 Ibid. 107 she felt she became an expert on raising children; which is why she exhibited this “all knowing” personality when questioned about her family. As Dr. Brodzinsky elaborated,

“I would have more likely expected someone [to] say I don’t always know what this baby wants, I’ve been separated six months and sometimes it’s hard to read this baby.”35 This, however, was not the reaction of Mary Beth Whitehead. She constantly portrayed herself as understanding all of Baby M’s needs. In doing so, Dr. Brodzinsky believed she was able to find value and purpose where it didn’t exist otherwise.

During Dr. Brodzinsky’s evaluation Mary Beth suggested that her relationship was special, only she could understand the baby. In Dr. Brodzinsky’s words, “[s]he indicated that only biological mothers can know what a child needs, and that as the biological mother Sara (Baby M) is wanted, that she portrays Sara as someone who is in pain because she, the mother, is not there to give.”36 Dr. Brodzinksy treated this conception of motherhood critically. Mary Beth’s belief that she was special seemed narcissistic to Dr. Brodzinsky. Moreover, it didn’t appear to be very analytical.

Accordingly, it contributed to this perception that Mary Beth Whitehead was impressionistic and lacked depth in her intellectual thought. Again, Mary Beth’s fitness to be a mother was being evaluated in relation to her intellectual capacity and her own views on motherhood.

35 Testimony of Dr. Brodzinsky, February 23, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 75.

36 Testimony of Dr. Brodzinsky, February 20, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 84.

108

Overall, comparatively, Dr. Brodzinsky described the differences between the

Sterns and the Whiteheads as clear and instructive. Dr. Brodzinsky depicted the Sterns largely in a positive light, suggesting they demonstrated a “warm and loving” relationship. Meaningfully, Dr. Brodzinsky explained that, “Mr. and Mrs. Stern display[ed] evidence of successful cooperative parenting of Baby M. There is sharing of the practical aspects of caregiving (e.g. feeding, bathing, changing diapers, etc.) as well as the emotional aspects.”37 In this way, Dr. Brodzinsky portrayed the Sterns as a model of good parenting. In contrast, the Whiteheads are described as bordering dysfunctional.

Where the Sterns were cooperative and equal partners in parenting, Whitehead is depicted as controlling and authoritative. In addition, Dr. Brodzinsky was troubled by

Whitehead’s “over-involvement” with her children. He testified, “[i]n this regard,

[Whitehead] has difficulty separating her needs, desires, thoughts, goals, etc. from those of her children. For example, in the family interviews she constantly answered for her children, projecting her beliefs and feelings for theirs.”38 Other psychologists would pick up these themes of projection and control during the trial, notably Dr. Schechter. In short, Dr. Brodzinsky’s portrayal of Mary Beth Whitehead presented an image of a woman that needed and was dependent upon being a mother.

In addition to Dr. Brodzinsky, several other experts in psychiatry or psychoanalysis testified at trial. One such expert was Dr. Marshall Schechter. Dr.

Schechter, at the time of the trial, was professor emeritus of child psychiatry at the

37 In the Matter of Baby M, 217 N.J.Super. 313 (1987), 366.

38 Ibid., 366-367. 109

University of Pennsylvania. Dr. Schechter was also considered an expert in the field of psychology and adoption. Unlike Dr. Brodzinsky, Dr. Schechter had much more experience with custody litigation. According to his estimates, he had already testified in sixty to seventy cases.39 Like Dr. Brodzinsky, Dr. Schechter stated that he had philosophical leanings toward the birth mother; again, largely due to his previous research and areas of expertise.

When describing his assessment of custody cases, Dr. Schechter noted that he

“look[s] for attachment behaviors not only between the parent but in that interaction between the various members of the family, the parents with each other, the parents with each of the children and certainly with the child or children that are involved in the custody hearing itself.”40 Schechter also looks to the marital relationship and how the parents nurture the children.

During his testimony, Dr. Schechter discussed Mary Beth Whitehead’s interactions with the experts retained to examine the family’s structure and dynamic. As mentioned above, concerning to many of the doctors that observed Mary Beth Whitehead was her control over the family members. Many Whitehead family members were not allowed to give their own opinions or engage with the experts. Before Richard

Whitehead or the children could respond to questions, Mary Beth would interrupt and provide the answer. Dr. Schechter described Mary Beth in this way, “[w]henever

39 Testimony of Dr. Schechter, February 23, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 84.

40 Ibid., 121 - 122. 110 questions were directed at anybody else, not only did she answer most of the time but they, I should say the children primarily, turned to her for confirmation and affirmation of what it was that they were talking about.”41 This control over the family suggested to Dr.

Schechter, as well as the other psychiatrists, that Mary Beth indeed saw herself as the glue that held the family together. Dr. Schechter stated, “the children let us know that the family really centered around Mrs. Whitehead.”42 This assessment concurred with Dr.

Brodzinsky’s observation that Mary Beth Whitehead believed she was special.

Moreover, Mary Beth’s control over family life caused many of the experts to question whether she was the best fit to raise a child with a strong independent attitude and curiosity about the world.

Dr. Schechter also elaborated on how Mary Beth projected her own thoughts and beliefs on those around her. He stated, “I think the biggest significance of much of what

I saw is within the realm of the use of the mental mechanism of projection and that is that ideas occurred to her that are in her mind that then she applies to other people.” In addition, when asked about a specific example of Mary Beth’s tendency to project, Dr.

Schechter stated, “she stated that she wouldn’t put it past the Sterns to run away and to hide the baby if the Court gives the baby back to them, the Sterns.”43 According to Dr.

Schechter, Mary Beth assumed the Sterns were thinking and behaving exactly as she

41 Testimony of Dr. Schechter, February 23, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 136.

42 Ibid., 138.

43 Ibid., 148.

111 would. Just as Mary Beth fled the jurisdiction with Baby M, she believed the Sterns would behave and think in a similar manner. These observations also related to Dr.

Schechter’s previous reflections concerning the Whitehead’s family life centering on

Mary Beth. According to Dr. Schechter, Mary Beth transferred her own beliefs to

Richard Whitehead and the children. She concluded her husband and children must feel and view the circumstances in a similar fashion. As such, her personality stifled independence, a particularly damaging possibility for the Whitehead’s children.

Similar to testimony provided by Dr. Brodzinsky, Dr. Schechter noted that Mary

Beth often misinterpreted the child’s behavior. He said,

[b]ut, what impressed me, in particular was the fact that there were misinterpretations continuously of the child’s behaviors by Mrs. Whitehead. And, by that I mean, when, for example, the child who was sitting on the floor chewing on a comb, this is a baby still in the middle of teething, she was chewing on a comb and Mrs. Whitehead said she’s tired now; there were no evidences whatsoever of fatigue.44

As this quotation demonstrates, Mary Beth Whitehead’s every move and her every decision were under the scrutiny of the expert witnesses. Her interpretations of her child’s behavior were examined and dissected. In this manner, the psychiatrists criticized her motherly instincts. Mary Beth’s interpretation that her child was tired was dismissed as simply incorrect. Dr. Schechter continued by describing how Mary Beth would make assertions that the child was hungry, even when the child did not exhibit behavior that would indicate hunger. During these instances, the child would stop feeding and Mary

Beth would forcefully insert the nipple of the bottle back into the child’s mouth. These

44 Testimony of Dr. Schechter, February 23, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987), 154. 112 observations went to the core of what the custody phase of the Baby M trial sought to establish – was Mary Beth Whitehead fit to be a mother. The answer of the expert witnesses, including Dr. Schechter, was a resounding – no.

If Mary Beth Whitehead’s mental state was considered fundamental to her role as a mother, the mental health experts at trial also considered her parenting skills as equally foundational. In order to determine Whitehead’s aptitude to raise children, many of the expert witnesses observed the time Whitehead spent with Baby M. During these visits the mental health experts would evaluate Whitehead’s interactions with the child. Again,

Dr. Schechter was critical of Whitehead’s skills as a parent. In particular, Dr. Schechter explained that he observed that Whitehead gave Baby M four stuffed pandas to play with.

According to Dr. Schechter, stuffed animals were not the optimal toy for a 10-month-old child. As one newspaper account mockingly described, “Dr. Schechter is a kitchenware man.”45 This reference was to Dr. Schechter’s testimony where he suggested that

Whitehead should have instead provided “pots, pans, and spoons” for Baby M.

Whitehead’s failure to provide kitchenware, as opposed to stuffed animals, was only one example of her problematic parenting skills. One of the most iconic moments emerging from the Baby M trial was Dr. Schechter’s description of Mary Beth Whitehead and Baby M playing pattycake. Dr. Schechter explained during his testimony that pattycake is an important game that parents play with children to aid in neurological development. In Dr. Schechter’s testimony, he described how when the team of doctors arrived at the Whitehead home, Mary Beth explained that sometimes she liked to play

45 Russell Baker, “Mom Flunks Patty-Cake,” New York Times, February 28, 1987. 113 pattycake with the baby. However, Dr. Schechter witnessed that when the child was both on Mary Beth’s lap and seated on the floor, she didn’t seem to engage with Mary Beth’s attempts. What’s more, when the child made a movement like raise her arms toward her chest, Mary Beth would proclaim “hooray.” According to Dr. Schechter, the appropriate response to this behavior was for Mary Beth to say, “pattycake.”46 Dr. Schechter described the significance of the event as,

parents are interpreters of reality, parents are connecting link[s] between behaviors and language formation. And, it seemed to me that what was happening was that, again, there was a misreading of what was going on so that Mrs. Whitehead, instead of picking up on salient things to reinforce them in terms of both language and behavior, really missed the cue.47

Dr. Schechter emphasized Mary Beth’s inability to read the cues. In Dr. Schechter’s evaluation, capable mothers are able to play pattycake in the prescribed fashion. They can reinforce children’s behavior to help them make the connections they require to grow and learn. Mary Beth Whitehead’s inability to play pattycake properly demonstrated to

Dr. Schechter that she wasn’t as strong of a mother as Elizabeth Stern. Under this analysis, Dr. Schechter is presenting the court with a model for motherhood that is inflexible and universal. A good mother must be able to play a narrow and unalterable version of pattycake; any departure from this specific model of adult-child interaction suggests a poor mother.

46 Testimony of Dr. Schechter, February 23, 1987, In the Matter of Baby M, 217 N.J. Super 313 (1987),159.

47 Ibid., 160. 114

After reading the news coverage of the trial, many were concerned and unsettled by the assertions that Mary Beth Whitehead might be classified as a poor parent based on the evaluation of an expert. It was even commented on by leading feminists concerned about the psychologist’s portrayal of Mary Beth. In addition to public skepticism, newspaper commentary surrounding the case also ridiculed the testimony of Dr.

Schechter. In Russell Baker’s article, “Mom Flunks Patty-Cake” appearing in the New

York Times, he mockingly envisions a scenario where Dr. Schechter arrives at Baker’s home to evaluate his childrearing capacity. The encounter begins with Dr. Schechter ordering a game of pattycake. “First of all, show me a little pattycake and then I’ll check out your philosophy on toys,” states the fictional Dr. Schechter.48 Baker’s description of the resulting game is steeped in sarcasm as he describes how he might react to an evaluation of his parenting skills. “I get down on hands and knees, all nerves because

I’ve never tested well anyhow, and the kid claps her hands and I suddenly freeze up.

Under pressure, I have completely forgotten how to play this game.”49 In Baker’s fictional account he manages to capture the reaction many readers and activists had to

Schechter’s evaluation – if all parents were evaluated, how many could pass these exams and would be allowed to continue raising their children?

Dr. Schechter’s description of Mary Beth Whitehead’s ability to play pattycake did not only disturb journalists, it also prompted activists to denounce the portrayal of

Mary Beth. As a result of the vigorous assault on Mary Beth Whitehead’s parenting

48 Russell Baker, “Mom Flunks Patty-Cake,” New York Times, February 28, 1987.

49 Ibid. 115 skills, a group of two-dozen feminists met in an apartment in Manhattan. Agreeing that the standards of motherhood being applied to Mary Beth Whitehead were too high, the group decided to speak out in her support. Shortly after that Manhattan meeting, on

March 12, 1987, the group released a statement, entitled “By These Standards, We Are

All Unfit Mothers.” Signed by such feminist luminaries as Meryl Streep, Nora Ephron,

Gloria Steinem and Betty Friedan, the document was a forceful repudiation of a conceptual ‘ideal mother’. The document rejected the notion that one ideal version of motherhood was applicable to all women, and mothers need not be absolutely free of mistakes to love and care for their children. The statement concluded, "we strongly urge

. . . legislators and jurists . . . to recognize that a mother need not be perfect to ‘deserve’ her child.”50 Like Russell Baker’s argument, the document suggested that all parents make mistakes. The standard being applied to Mary Beth Whitehead, particularly that of

Dr. Schechter, was one that few mothers or fathers could meet.

In addressing the rationale behind his conclusions, Dr. Schechter evaluated instances in Mary Beth Whitehead’s life when she demonstrated impulsivity, self- importance, exploitiveness [sic], and a lack of empathy. Evaluating Whitehead’s impulsivity, Dr. Schechter determined that she displayed rash behavior with her flight from New Jersey, and the withdrawal of her children from school. With regards to self- importance, Dr. Schechter cited Mary Beth Whitehead’s tendency to elevate her genetic ties to Baby M, while minimizing or ignoring the genetic relationship shared by William

50 Iver Peteron, “Fitness Test for Baby M’s Mother Unfair, Feminists Say: Feminists Attack Baby M Case,” New York Times, March 20, 1987. 116

Stern. Mary Beth Whitehead’s use of the media to support her case was evidence of exploitiveness [sic], according to Dr. Schechter. Finally, Whitehead’s lack of support in her husband’s battle with alcohol abuse, and her lack of consideration for her children when deciding to undertake surrogacy suggested a lack of empathy.51 Dr. Schechter’s characterization and portrayal of Mary Beth Whitehead is as significant for its impactful description of an emotionally unstable woman as it is revealing regarding his weak intellectual foundation in evaluating her mental state. Many of the examples Dr.

Schechter uses as evidence to support his diagnosis are characteristics of all parents.

Parents rarely consult their children when undertaking decisions, such as, entering into surrogacy agreements, and Whitehead’s privileging of her relationship to the child could be expected of anyone involved in a custody dispute.

Furthermore, Dr. Schechter was the only expert during trial that suggested Mary

Beth Whitehead could be officially diagnosed with a mental illness. While Judge Sorkow wrote in his opinion, in reference to Dr. Schechter’s testimony, that “the court [gave] no weight to his diagnostic conclusion,” his testimony is significant to the ultimate determination of the case. Although Judge Sorkow rejected Dr. Schechter’s ultimate diagnosis, he accepted many of his conclusions concerning Mary Beth Whitehead’s individual personality traits. Among the personality traits that Judge Sorkow noted in his opinion were: impulsivity, self-importance, exploitiveness [sic], and a lack of empathy.52

51 In the Matter of Baby M, 217 N.J.Super. 313 (1987), 360.

52 Ibid., 359.

117

Even with this damaging assessment of Mary Beth Whitehead’s emotional state and overall mental health, Dr. Schechter concluded, “Mrs. Whitehead was a fit mother; however, the least detrimental alternative for ‘Baby M’ was to sever her relationship with the Whiteheads and give custody to the Sterns.”53 Judge Sorkow ultimately adopted Dr.

Schechter’s basic conclusion, believing that in balancing the Whiteheads and the Sterns,

Mary Beth Whitehead would ultimately prove to be a poorer parent and a worse mother than Elizabeth Stern. While he may have used the word “fit,” Dr. Schechter certainly testified that Mary Beth Whitehead had serious flaws undermining her ability to provide proper maternal care. Dr. Schechter characterized Mary Beth as a “fit” parent and a “fit” mother; yet his description of her behavior suggests he felt otherwise.

Other psychiatrists were equally critical of Mary Beth Whitehead’s need to be a strong mother. Dr. Allwyn Levine determined, based on Mary Beth’s psychological profile, that Baby M would be best served by placement with the Sterns. Agreeing with

Dr. Schechter, he also believed that Mary Beth displayed signs of impulsivity by fleeing

New Jersey. In addition, Dr. Levine referenced Whitehead’s decision to drop out of high school as another example of her impulsive behavior. However, it is Dr. Levine’s characterization of Mary Beth Whitehead’s understanding of the role of motherhood that was particularly damning during trial. Judge Sorkow summarized Levine’s testimony as,

[s]ince she maintains to know her son’s problems better than the professional staff in his school and because she says she knows the meaning of the child’s cries, [Levine] says she is omniscient. She believes she is being used by God to show people the wrong of surrogacy but acknowledges she is not especially religious … [s]he is very controlling of

53 In the Matter of Baby M, 217 N.J.Super. 313 (1987), 360. 118

her children and husband [and Levine also] found an exaggerated sense of aggrandizement and self-importance.54

Dr. Levine’s characterization of Whitehead bolsters a portrayal at trial of Whitehead as a mentally unhinged parent. Moreover, underlying Dr. Levine’s analysis is an assumption that women placing heavy weight on maternal instincts and intuition, along with valuing motherhood as the most important attribute of themselves, demonstrate mental pathology.

The testimony of Dr. Schechter, Dr. Brodzinsky and Dr. Levine, along with many of the other psychologists and psychiatrists, was intensely covered in the news media.

Dr. Schechter’s testimony was characterized in the New York Times in the following manner,

[c]haracteristics [Dr. Schechter] detected in Mrs. Whitehead included impulsive self-damaging acts, unstable personal relationships, suicidal and homicidal gestures, lack of empathy, depression, preoccupation with grooming and youthful appearance, feeling victimized and craving novelty.55

Such characterizations were occasionally reported by news organizations in a manner that was critical of the expert witnesses. In these reports, as in the above-mentioned pattycake example, writers suggested that the analysis was unfairly unsympathetic to Mary Beth

Whitehead. These journalists felt compassion for Mary Beth, and believed that given the right circumstances, most parents would be negatively judged by psychiatrists. However, few readers, except for the most informed and motivated, could view these

54 In the Matter of Baby M, 217 N.J.Super. 313 (1987), 365.

55 Robert Hanley, “Three Experts Say Baby M’s Mother is Unstable,” New York Times, February 11, 1987.

119 characterizations in the proper context. By citing Dr. Schechter’s status as an expert witness, articles often gave credibility to his assertions. As such, many believed that

Mary Beth Whitehead was unstable and unfit to be the mother of Baby M.

The New York Times article also cited another expert from the trial, Dr. Judith

Greif, in describing Mary Beth Whitehead as possessing character and personality traits unsuitable to motherhood. Greif echoed Dr. Brodzinsky’s testimony regarding

Whitehead’s perception of motherhood. Greif stated, “[s]he is almost myopic in her view that her role as biological mother enables her to understand her children better than anyone else.”56 Again, this characterization of Whitehead is suggestive of a vision of acceptable motherhood that is best illustrated by women with balanced lives, placing the role of mother as one component of her identity among many other elements. In this sense, a woman, such as Mary Beth Whitehead, placing emphasis on her role as a mother and making it a central component of her identity is aberrant.57 Moreover, the overall process of characterization and evaluation of Elizabeth Stern and Mary Beth Whitehead suggested the notions of scientific motherhood were present in the Baby M case.

Technology and Motherhood: The Debate Over Changing Definitions

The debate surrounding the Baby M case did not end with a critical examination of Mary Beth Whitehead, Elizabeth Stern and their choices in family formation. A

56 Robert Hanley, “Three Experts Say Baby M’s Mother is Unstable,” New York Times, February 11, 1987.

57 It is interesting to note that this vision of motherhood and the critical perception of Mary Beth Whitehead’s view of motherhood as central to her identity are being articulated by either male health care providers or women who choose to also value their professional lives as central to their identity. 120 national conversation started about what attributes are necessary to be a mother, who could be a mother, and what rights, legal or otherwise, does that title confer. One issue arising out of the Baby M litigation was how does the new reproductive technologies change, if at all, our notions of motherhood. For some, it elevated their personal choices to the mainstream; it brought alternatives to traditional family formation out of the shadows. For others, it highlighted the problems wrought by new technology – technology viewed as challenging the structure and virtuousness of the “traditional” family.

One such debate centered on the ability of women to form families that departed from conventional views of appropriate family structure. It allowed for the possibility of single women to not only raise children, but to start a family even when they had not been in a relationship with a man. Far from an equally “hazardous” path of being in unmarried, sexual relationships with men, the new reproductive technologies allowed for women to initiate the pregnancy without a man or prospective partner in their life. The media broadcast these stories for public consumption, fueling greater debate about the morality of motherhood without a father figure. The Wall Street Journal carried the story of Odette Buschmann. According to the Wall Street Journal, Buschmann was a gifted pupil that had a child from a previous relationship that ended when she was an undergraduate student. At the time of the article, she was a law student at Brooklyn

College. As Buschmann stated, “I always wanted a family, a loving husband, a beautiful

121 home.”58 In this manner, Buschmann expressed wishes typical of many Americans – the desire to start a family and have children. Addressing the question many Americans asked, Buschmann responded, “I couldn’t find a man to be part of our family…so I went to the doctor.”59 The Wall Street Journal’s story becomes even more interesting when it reported that she considered adoption, but felt that adoption was too expensive at that moment in her life. The Journal reported that her procedure cost approximately $400, an amount much smaller than what would be required to go through the process of adopting a child. Buschmann’s story underscored a growing concern by the public that wondered if the new reproductive technologies would lead to more stories similar to Buschmann’s.

While the Wall Street Journal article acknowledged that the predominate use of assisted reproductive technologies still occurs within the confines of marriage, it raised serious questions for many Americans about what the technology was doing to the

American family and women. As the Journal wrote,

[a]t present, most of the demand at sperm banks still comes from couples whose male partners have fertility problems. A large number of such clients turn to sperm banks out of frustration with the process of adoption, which in many cases has become lengthy and expensive.60

However, even the Wall Street Journal’s recognition that the predominant group utilizing fertility services was still married couples, it included a suggestion to groups who viewed the surge in sperm bank use differently. The Journal reported,

58 Marilyn Chase, “Sperm Banks Thrive Amid Debate of Medical and Ethical Issues,” Wall Street Journal, April 2, 1987.

59 Ibid.

60 Ibid.

122

[b]ut another group is accounting for an increasing portion of sperm banks’ business: childless career women. For the first time, a generation of women has had both the means and the motivation – in the pill and the women’s movement – to postpone procreation, says George M. Flesh, a Los Angeles obstetrician-gynecologist.61

As George Flesh’s comments illustrate, many still believed that the increase in the use of artificial reproductive technologies was partially attributed to the same social forces they believed to be pulling apart the American social fabric. Flesh’s reference to hormonal contraception, in conjunction with, increases in employment for women outside the home indicates his concerns about the moral implications of allowing access to reproductive technologies.

Moreover, the public debate surrounding the Baby M case and surrogacy in the

United States continued to interrogate the socially constructed roles assigned to men and women – particular in the context of reproduction. Newspaper articles appearing to question the responsibilities of men and women began running in papers across the country. Vermont Royster of the Wall Street Journal authored an article, entitled

“Modern Morality Play: ‘Everyman’ in a Test Tube,” discussing mankind’s primitive ancestors. In the article he argued that when human beings made the connection between sexual intercourse and the birth of a child, it sparked a social revolution. Royster wrote,

“[u]ntil then primitive society was basically feminist. The female alone seemed responsible for the child growing inside of her, for some mysterious reason, and she alone was responsible for the continuation of the species.”62 In Royster’s piece, he then

61 Marilyn Chase, “Sperm Banks Thrive Amid Debate of Medical and Ethical Issues,” Wall Street Journal, April 2, 1987.

123 describes how this realization sparked male patriarchy and brought with it monogamous relationships. While we may find Royster’s account of the anthropological research lacking, it does suggest a prevailing tendency in the United States – one that associated stability with long-held constructions of the family and gender roles. Baby M signaled the disruption of this long history of stability. Certainly, some of these views were informed by religious beliefs in the United States, but others were based on the conviction that science had demonstrated that problems originated when two parents, headed by a male breadwinner, did not center a family.

Equally important, Royster had observed an unsettling consequence of the Baby

M litigation. Royster believed that the technologies and innovations, both legal and scientific, were disrupting the structure of the American family. He equated this disruption to a revolution. Troubling to Royster, and many other Americans, was it appeared to be a revolution with an uncertain future. He could not forecast what

American society would resemble now that households could be formed under such unreliable and potentially ethically dangerous circumstances. Royster’s concern is evidence of just how fundamental the role of the American family played in people’s perceptions about a stable society. In his article, Royster continued to explain the trajectory of the new revolution he was witnessing. He wrote, “[i]t began with ‘the pill,’ which freed women from the burden of constant child-bearing. That started a sexual revolution, with its breakdown of old mores. It is not unusual today for women to bear

62 Vermont Royster, “Modern Morality Play: ‘Everyman’ in a Test Tube,” Wall Street Journal, April 30, 1987. 124 children openly without marriage, often children of unknown fathers.”63 Of course,

Royster’s analysis is problematic on multiple levels. His assertion that children born outside of marriage were a characteristic of modern society, and a direct result of hormonal contraception, was patently false. However, his statement is important to note because it expressed a widely held view. Many Americans associated the new reproductive technologies, of which surrogacy was a part, with medical and scientific developments in birth control. All of these developments represented a threat to a stable family and society.

Editorials in the Wall Street Journal, expressing that traditional notions of family and motherhood were under attack as a result of the new advances in reproductive medicine, were not illustrative of public opinion as a whole. However, they were not confined to conservative political commentators either. The Catholic Church, opposed to the new reproductive medicine as a matter of morality, also questioned its effect on motherhood. Indeed, Richard Doerflinger, assistant director of the National Conference of Catholic Bishops Office of Pro-Life Activities, disagreed even with the terminology surrounding surrogate motherhood. He stated to Iver Peterson of the New York Times,

“[t]o the church . . . such a woman cannot be described as a surrogate mother, because she is without qualification the mother of the child. In reality . . . she becomes the surrogate wife, and the action of her and the man who is her client is adulterous.”64

63 Vermont Royster, “Modern Morality Play: ‘Everyman’ in a Test Tube,” Wall Street Journal, April 30, 1987.

64 Iver Peterson, “Baby M Trial Splits Ranks of Feminists: Surrogate Motherhood Stirs Exploitation Issue,” New York Times, February 24, 1987. 125

Doerflinger’s characterization of surrogate motherhood certainly applied to the Baby M case. Mary Beth Whitehead was both the genetic and gestational mother of Baby M.

However, Doerflinger’s rationale would be increasingly challenged as the medical science, facilitating surrogacy, continued to advance. Soon after the Baby M case, agencies and brokers started utilizing in vitro fertilization to create a genetic link between both prospective parents. Accordingly, the definition of what constituted a mother, already complicated, would become increasingly so in the years that followed the Baby M decision.

At the heart of the discussion regarding motherhood in the United States, following the Baby M decision, was the term’s very definition. As demonstrated above, conservative voices constructed a narrative suggesting traditional motherhood was under attack by the new forms of fertility treatment. These voices went as far as to suggest that the terminology surrounding surrogacy was inappropriate. Such views did not go unchallenged or unexamined. Feminists also used the Baby M case to explore, often publicly, how American society imparted meaning to the terms “mother” and

“motherhood.” Journalists and scholars pondered the social construction of the term, and offered critiques and explanations on how society understood the concept of motherhood and how the Baby M case shaped this understanding. Sonia Robbins, in an article appearing in Women and Language, offered a critical interrogation of the definition of motherhood in the United States. Her article begins,

When is a mother not a mother? The question recently arose over the case of Baby M, prompting a letter writer to wonder about the meaning of

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“surrogate mother”: she isn’t a surrogate anything . . . she is the mother. As in real, actual, honest-to-God mother.65

Of course, this letter writer’s interpretation mirrored the sentiments of Rev. Richard

Doerflinger and the Catholic Church. The letter writer’s understanding of the term was straightforward. Prior to the Baby M case, this seemed like a simple enough question to many Americans – what is a mother? It was a definition that had been instilled in them when they were children, and one that seemed to serve them well in identifying mothers as they grew to adulthood. As Robbins noted, “[u]ntil recently the definition of mother was simple and uncomplicated. Mother was the woman who gave birth to you and raised you.”66 With the advent of assisted reproductive technologies, that definition seemed out-of-date and naively simple to those observing the coverage of the Baby M trial.

Assisted reproductive technologies raised the prospect that a woman who gave birth to a child might not even be genetically related. Under such circumstances, how was society expected to understand the terms “mother” and “motherhood”? In response,

Robbins noted that the Baby M case utilized the traditional understanding of the word mother to denigrate Mary Beth Whitehead. Her actions, through the case, were not those of a “real mother.” As Robbins writes,

[o]nce her behavior came under the standards of contracts, she could no longer go back to being a mother. Her decision to violate the contract was, in her mind, a “mother’s” decision, but to journalists and many readers of newspapers, Whitehead had given up her right to be judged as a mother once she agreed to the standards of the contract. She didn’t violate the

65 Sonia Jaffe Robbins, “When is a Mother not a Mother? The Baby M Case,” Women and Language, September 30, 1990.

66 Ibid.

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contract on grounds that contract holders could understand; she violated it by standards of another system of thought. But because she had already violated the standards we hold for that other system by entering into this contract, journalists no longer thought of her as a mother.67

Implicit in Robbins’ writing is the idea that a “real” mother would never agree to contractually surrender, or worse, sell her child. Mary Beth Whitehead’s decision to accept a surrogacy arrangement prevented her from claiming the “benefits” of motherhood. She no longer could suggest that she would do anything to protect her child or for her child’s happiness without being labeled a hypocrite or disingenuous. After all, she was willing to part with her child for $10,000 in cash. Robbins’ analysis suggests that while the development of paid surrogacy in the United States had challenged the definition of what constituted a mother, it was a definition still largely informed by previous conceptualizations of motherhood.

If many feminists were united in advocating against the conceptualization of an ideal mother, as demonstrated above, they were not nearly as unified on broader questions of the ethical and moral implications posed by surrogacy. Some fully supported a woman’s right to choose what she wished to do with her own body, and surrogacy was incorporated within that right. Others, however, viewed the surrogacy relationship as fraught with issues of exploitation and the concern that women were being

“used for uterus rentals.”68 Linda Bowker, head of the New Jersey state chapter of the

67 Sonia Jaffe Robbins, “When is a Mother not a Mother? The Baby M Case,” Women and Language, September 30, 1990.

68 Iver Peterson, “Baby M Trial Splits Ranks of Feminists: Surrogate Motherhood Stirs Exploitation Issue,” New York Times, February 24, 1987.

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National Organization of Women, compared the division to the similar split feminists were addressing with prostitution. Bowker explained, “Feminists…have been divided on the issue of prostitution, defending the rights of women to ply the trade, while condemning prostitution as an exploitation of women by men.”69 As this discussion demonstrates, the Baby M case was a component of a broader debate in American society about the role of women and patriarchal authority.

While conservative elements in American society focused on the disruption new reproductive technologies were having to the traditional American family, radical feminists questioned how the technologies were changing the roles of motherhood into a servant of capitalist enterprise. In an article appearing in “Off Our Backs: A Women’s

NewsJournal,” Janice Raymond, a professor at the University of Massachusetts said,

“[s]uch ‘freedom of choice language’ masks the slavery of surrogacy. Surrogacy is the right to give up control of our own bodies. Anyone who doesn’t understand that should read the surrogacy contract.”70 In doing so, Raymond questioned the manner in which

American society was constructing the debate as to focus on the element of one’s choice.

As such, she furiously contested the notion that women were being given a choice and still choosing to be exploited. Liz Quinn described Raymond’s argument in the following manner,

69 Iver Peterson, “Baby M Trial Splits Ranks of Feminists: Surrogate Motherhood Stirs Exploitation Issue,” New York Times, February 24, 1987.

70 Liz Quinn, “Reproductive Strategies for Control,” Off Our Backs: A Women’s NewsJournal 17, no. 5 (May 31, 1987).

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[s]he pointed out that sexual liberals are uncomfortable focusing on women as victims of men’s sexuality. They have developed language “going beyond” the language of victimization, describing ways that women are agents in the world . . . incorporating the idea that women are both victims and agents, and can choose or not choose pornography, prostitution and surrogacy.71

Quinn’s discussion of Raymond’s commentary illustrates how some feminists viewed surrogacy contracts as exploitation. This theme of exploitation is discussed more thoroughly in the chapter M is for Money; however, its implications also extend into the debate over what constituted motherhood. In this analysis, motherhood is being corrupted and manipulated.

The article, “Reproductive Strategies for Control,” appearing in Off Our Backs also contained commentary by a leading feminist opponent of reproductive technologies in the United States – Gena Corea. Corea stated of in vitro fertilization, embryo flushing, sex predetermination, and surrogate motherhood, “they are part of the ‘increasing industrialization of reproduction,’ where women’s bodies are used as the raw materials for the creation of new babies.”72 Again, women’s reproductive labor, in other words a woman’s ability to be a mother, was a commodity to be sold. This construction of motherhood certainly conflicts with prior formulations of motherhood in American society. The profitability of bearing and raising children was a far cry from the ideology composing the Victorian construction of the “cult of true womanhood.”

71 Liz Quinn, “Reproductive Strategies for Control,” Off Our Backs: A Women’s NewsJournal 17, no. 5 (May 31, 1987).

72 Ibid.

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Other feminists joined the critique of surrogacy and surrogate motherhood in the years surrounding the Baby M decision. Catharine MacKinnon answered a related question, also being discussed in the United States, following the Baby M litigation –

“what is a woman?” For MacKinnon, the use of assisted reproductive technologies demonstrated that “under male supremacy” a “woman is [first] a womb (reproductive capacity); [and] second, a cunt (sexual capacity).” In this regard, the connection to commercialization is clear. MacKinnon would suggest, “[s]urrogacy is a form of trafficking in women, and the people who arrange it are pimps. Surrogacy is trafficking in a child as the embodiment of the male in the world, with the woman as the vehicle.”73

Again, MacKinnon’s articulation of the problems associated with the arrival of paid surrogacy and its influence on American society suggested a broader concern about the implications for the definition of motherhood. Using MacKinnon’s construction, surrogacy contracts viewed women as simply wombs. As such, surrogacy reduced motherhood to reproductive capacity. Paid surrogacy ignored the other components of what it means to be a mother. Simply put, it reduced motherhood to the act of reproduction.

While some radical feminist concerns, such as, the ability of surrogacy contracts to reduce motherhood to merely reproductive capacity was justified, other worries were misguided or overinflated. Radical feminists often foresaw assisted reproductive technologies as eroding the legal principles designed to protect women. For example,

73 Liz Quinn, “Reproductive Strategies for Control,” Off Our Backs: A Women’s NewsJournal 17, no. 5 (May 31, 1987). 131

Gena Corea envisioned the undermining of tort liability and employment law principles if donor eggs became more widely available. In Corea’s example, employers who exposed their employees to harmful substances might be able to escape responsibility because of the growing availability of donor gametes. Corea noted, “this use of donor eggs, of course, relieves employers of the responsibility of providing safer working conditions.”74

Again, Corea envisioned the possibility of reproductive technologies infringing on the rights of women to enjoy a full range of the components of motherhood. She believed that employers might ignore a woman’s interest in being the genetic mother of her children in order to reduce liability for exposure to toxic substances. In other words, the ability of a mother to have her own eggs fertilized in reproduction would be trivialized because of the growing availability of donor eggs. This fear never came to fruition. Not only did tort law never adopt such a construction of employer liability, American society never accepted a definition of motherhood that so discounted the genetic ties a mother might have with her child to approve of legal constructions adopting Corea’s prediction.

Finally, discussion of the ramifications of the Baby M case continued long after the trial concluded in 1987. Some feminists wrote openly about the case’s impact on their thinking, causing them to reconsider the fragility of their reproductive freedom.

Phyllis Chesler wrote,

[n]ow that I understand how fragile women’s reproductive rights are and how non-existent our rights to custody are; now that I understand how impoverished mothers are, especially if they’re not in male captivity, I have

74 Liz Quinn, “Reproductive Strategies for Control,” Off Our Backs: A Women’s NewsJournal 17, no. 5 (May 31, 1987).

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decided that before women are reproductively “arrested,” we need to be read our equivalent of the Miranda Warnings.75

Chesler’s Miranda Warning was a list of possible consequences to sexual activity and pregnancy.76 It demonstrated a belief among some feminists that the Baby M case had either altered, or at the very least made feminists aware of, how motherhood was shaped by a singular act – the act of reproduction. Chesler’s Miranda Warning emphasized the woman’s rights to the child. Moreover, it was greatly influenced by the trial’s psychological evaluation of Mary Beth Whitehead. Chesler was very concerned about the precedent Baby M seemed to establish of evaluating the fitness of a woman to be a mother.

In conclusion, the Baby M case was part of a broader trend in the United States to examine and define the role of motherhood. The Baby M case challenged conventional understandings of what constituted motherhood, while it reified others. Certainly,

Americans’ ability to define the term “mother” became more complicated following the

Baby M trial. Suddenly, technology and medical science made it possible for a woman to bear a child without ever having a sexual relationship with a man. While the facts of the

75 Phyllis Chesler, “Baby M: NJ Outlaws Surrogacy,” Off Our Backs: A Women’s NewsJournal 18, no. 3, (1988).

76 The Reproductive Miranda Warning composed by Chesler reads: “You have the right to refuse to come into contact with my sperm. If you do come into contact with my sperm, you [sic] every act and deed can and will be used against you in a court of law. If you become pregnant, you may be totally abandoned or you may be totally controlled. If you do not become pregnant now but become pregnant at a later time, your rights to your child may be challenged by me at any time in a court of law and you may have to prove that the child is not mine. Your life may be subject to examination by strangers, for up to 19 years. Every check you write may be subpoenaed; every telephone call you make may be monitored; if you refuse to cooperate in your own surveillance, you may be jailed without bond for up to 19 years.” Phyllis Chesler, “Baby M: NJ Outlaws Surrogacy,” Off Our Backs: A Women’s NewsJournal 18, no. 3, (1988). 133

Baby M case still conformed to some of the conventional understandings of biology comprehended by the American public, such as, the fact that Mary Beth Whitehead was the genetic mother of Baby M, it also raised the specter of new possibilities in family formation. Rapid changes in reproductive technology made surrogate motherhood feasible where the surrogate was not genetically related to the child.

The Baby M case brought this emerging science, previously practiced in the shadows, into the national spotlight. Without the Baby M trial, few Americans would have been aware of the advances in fertility treatment taking place in labs across the country. These advances undercut the now out-of-date definitions of the word “mother.”

What previously had been a rather straightforward calculation, a mother was the woman who gave birth to the child, had been changed by the new reproductive technologies and surrogacy. Consequently, journalists and activists struggled to reconcile the ways these emerging options comprised American society’s conceptualization of the term.

Accordingly, journalists proposed numerous ways to rethink motherhood in light of the

Baby M case. These attempts at rethinking motherhood and society can be illustrated in the writing of Charlotte Allen of the Wall Street Journal. She suggested that one way to understand how Baby M challenged the conventional definitions of motherhood was to ask how it was perceived in relation to traditional notions of fatherhood. In this way, it was clear that motherhood was always held to a different standard than fatherhood. Allen wrote,

[t]he debate goes to the heart of assertions about the equality of men and women before the law and as reproductive agents. For decades, commercialized fatherhood via sperm “donation” (a time-honored way for

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medical students to earn pocket money) has been legal and relatively noncontroversial. But carrying and bearing a child is different.77

As Allen’s analysis suggests, a central component of the debate surrounding surrogacy in the aftermath of the Baby M case concerned how to reconcile compensation and parenthood. However, it also illustrates how fatherhood was considered separable, in the context of sperm donation, from specific types of fertility treatments. Allen’s example implies that motherhood was somehow different. At the very heart of the broader national discussion was how do these differences define our understanding of motherhood?

Feminists and social activists also questioned how the introduction of financial compensation threatened to change the meaning of motherhood. When a woman was paid for carrying a child to term, it reduced her to a component of industrialized reproduction. Further, it reduced motherhood to only a small subset of the broader range of attributes feminists believed should compose motherhood. Interestingly, feminists and conservatives formed a coalition during the Baby M trial. While disagreeing on the rationale, both agreed on the conclusion – paid surrogacy was threatening to how society defined motherhood. Unlike feminist activists, however, conservatives focused more on the potential for women to use surrogacy as a means to postpone pregnancy and childrearing. Conservatives were troubled by the potential for career-oriented women to wait until they were unable to conceive to start a family utilizing the services of a surrogate. In the alternative, conservatives were concerned that women might choose not

77 Charlotte Allen, “When Motherhood is for Sale,” Wall Street Journal, January 8, 1991.

135 to conceive as a matter of convenience or preference. Both feminists and conservatives agreed, however, that paid surrogacy threatened their own definitions of what constituted motherhood.

The Baby M case embodied the fears of conservative-minded Americans about perceived threats to the traditional, patriarchal, male-breadwinner family. Testimony in the courtroom, subsequently disseminated broadly by news outlets, portrayed both

Elizabeth Stern and Mary Beth Whitehead as the dominant figures in the home. As Ann

Taylor Fleming wrote, “they are both strong-minded women, characterized in courtroom testimony and in the written custody evaluations as the forceful figures in their marriages, women married to acquiescent men, women with a firm conviction in their own judgment.”78 Such portrayals, only a few years removed from political battles over the

Equal Rights Amendment, heightened fears of conservative activists that the traditional

American family was under siege by feminists. Whitehead’s attorneys felt compelled to counter the narrative of an assertive and authoritative wife. At the conclusion of the trial,

Whitehead’s attorney declared, “[t]he bottom line is that Mary Beth Whitehead is a mother, and without that, she has nothing in this life.”79 This statement was an attempt to recast Whitehead as the ideal, devoted wife and mother. A mother emotionally connected with her children and for whom motherhood was a central element to feminine identity.

78 Ann Taylor Fleming, “Our Fascination with Baby M: At Stake in the Trial is Our Sense of Ourselves, Our Concept of Motherhood, of Parenthood,” New York Times, March 29, 1987.

79 Ibid. 136

Mary Beth Whitehead’s belief that her life was defined by her role as a mother was a central element to the Baby M trial itself. Moreover, the debate over whether Mary

Beth was even “fit” to be a parent occupied a significant portion of the time at trial devoted to determining the issue of custody. Attorneys for the Sterns labeled Mary Beth

Whitehead as narcissistic and emotionally unstable. Expert witnesses retained by

Lorraine Abraham, the guardian ad litem, considered Mary Beth to be overbearing – ultimately risking the growth and independence of her children. Mary Beth’s intelligence and dedication to education were questioned. Experts even questioned whether she was appropriately playing children’s games. The characterization of Mary Beth Whitehead as a relatively unqualified mother was viewed by many as unfair and unjust. Instead of appearing as qualified specialists offering substantiated opinions, the testimony of the psychiatrists and psychologists hired to evaluate the homes of the Sterns and the

Whiteheads appeared to be little more than a sustained attack on a working-class mother.

Importantly, the testimony of the expert witnesses sparked a broader national dialogue, led by journalists, about the qualifications of individuals for parenthood. Taken together, the struggle to define the term “mother;” the public questioning of the effect of money on surrogacy as it relates to the meaning of motherhood; and the national discussion regarding the necessary qualifications a woman needed to be a mother demonstrated that in the Baby M litigation, the M stood for Motherhood.

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Chapter 3: M is for Masculinity

Perhaps it’s hindsight, but it’s hard to see how Mary Beth Whitehead and Elizabeth Stern could have ended up compatibly. The problem between the women is not the worlds that separate them, but some of the personality traits they have in common. These are both strong-minded women, characterized in courtroom testimony and in the written custody evaluations as the forceful figures in their marriages, women married to acquiescent men, women with a firm conviction in their own judgment.1 Ann Taylor Fleming

As the Baby M trial commenced in January 1987, attorneys, journalists, activists and the public focused on the novelty of the litigation, as well as the legal agreements that gave rise to the dispute. Americans had a little over eight years to process the news of Louise Brown – the world’s first “test-tube” baby. While Louise Brown’s birth sparked a public conversation over the advancement of biomedical knowledge in the area of fertility, her story failed to generate sustained public discussion over the advantages and dangers of reproductive biomedical advance. The birth of the world’s first “test- tube” babies did not energize the same level of public discourse, partly, because there did not seem to be tangible harm as a consequence of the scientific development. Louise

Brown was born healthy, and there was not an accompanying custody dispute between two different sets of parents. The Baby M trial, on the other hand, provided a clear illustration of the dangers of reproductive technology. Moreover, the Baby M case

1 Ann Taylor Fleming, “Our Fascination with Baby M: At Stake in the Trial is Our Sense of Ourselves, Our Concept of Motherhood, of Parenthoood,” New York Times, March 29, 1987. 138 offered sharp contrasts on a variety of issues inherent in surrogate motherhood contracts.

As explored in previous chapters, the Baby M case illustrated the differences in access to the new reproductive technologies inherent in economic class. In addition, the Baby M litigation highlighted the changing and competing definitions of motherhood that resulted from the arrival of new methods in fertility treatment. Likewise, the Baby M case presented a unique moment in social discourse to question the impact of assisted reproductive technologies, in particular surrogacy, on conceptualizations of fatherhood and masculinity.

This chapter examines how the attorneys representing both William Stern and

Richard Whitehead during the Baby M trial utilized concepts of fatherhood and masculinity. At the heart of the competing characterizations of both men were depictions of their role as providers for their respective families. The strength of either man as a

“good father” was associated with his continued employment and a steady income. In order to assess both men’s abilities as providers, attorney’s and the guardian ad litem utilized the testimony of the expert witnesses and psychologists to evaluate the Sterns and the Whiteheads during the custody phase of the litigation. Moreover, both William

Stern’s and Richard Whitehead’s assertiveness and control over the family were discussed and analyzed by the psychologists. These assessments were often compared to expert witnesses’ expectations for husbands and a father’s acceptable behavior within family units. Finally, while the topics of fatherhood and masculinity were often lost in the coverage of the Baby M litigation, this chapter demonstrates the ways journalists covering the trial discussed fatherhood and masculinity. These depictions often reflected

139 the testimony of the expert witnesses during trial. Accordingly, both William Stern and

Richard Whitehead were described as the passive partners in their marriages, or as Ann

Taylor Fleming wrote when comparing both men to their spouses, “[t]hese are both strong-minded women, characterized in courtroom testimony . . . as the forceful figures in their marriages, women married to acquiescent men.”

Scholars have long established the connection between masculinity and breadwinning in American society. While the boundaries of fatherhood have evolved and changed over the course of the twentieth century, the nexus between masculinity and breadwinning has remained constant. In Fatherhood in America: A History, Robert

Griswold argued,

[d]espite men’s differences, breadwinning has remained the great unifying element in father’s lives. Its obligations bind men across the boundaries of color and class, and shape their sense of self, manhood, and gender. Supported by law, affirmed by history, sanctioned by every element in society, male breadwinning has been synonymous with maturity, respectability, and masculinity.2

Indeed, during the Baby M trial, the connection between breadwinning and respectable masculinity was clear and apparent. The attorneys representing William Stern utilized the trial to illustrate the ways William Stern was a good economic provider for his family, while minimizing the support given by Richard Whitehead. These characterizations were also highlighted by the testimony of the expert witnesses hired by the guardian ad litem.

As described below, experts generally highlighted the economic security provided by

2 Robert Griswold, Fatherhood in America: A History (New York: Basic Books, 1993), 2. 140

William Stern’s employment, while discussing the instability of Richard Whitehead’s work.

The Baby M trial also stressed the tensions and divisions concerning the role of fatherhood in American society. While exceptions existed, the breadwinner model pervaded the conceptualization of fatherhood in the immediate postwar period. Men were expected to assume the role of provider for their families. To the extent the family was economically able, women were envisioned as stay-at-home caregivers and nurturers. As Griswold contended, “[m]aternity, not paternity, leave is the rule; mothers, not fathers, stay home to care for sick children; women, not men, visit the school principal, attend the daytime school program, or squeeze in an emergency shopping trip over their lunch hour.”3 As this quotation illustrates, a clear demarcation is envisioned between the different roles of the mother and the father even as more and more women entered the workforce. This conceptualization of motherhood and the family was discussed in greater detail in the chapter, M is for Motherhood.

Prior to the Baby M case, however, changes to the American economy and workforce altered the construction and dynamic of the American family. Economic realities, as well as other social and causal forces, pushed more and more families into dual income households. This challenged the breadwinner model as a fundamental source of masculinity and maturity. As Robert Griswold explained, “[u]ntil the last two decades, supporting a family was perhaps the definitive act of mature manhood, and if that is eroding, then men will be forced to find a new source of identity and self-

3 Robert Griswold, Fatherhood in America: A History (New York: Basic Books, 1993), 228. 141 respect.”4 Griswold continued by arguing that while the economic changes were impacting the breadwinner model, parental responsibility was still being divided along gendered lines. As the above discussion references, women were still considered the family’s primary nurturer and caregiver. However, by the 1980s, as alluded, the meaning of fatherhood was changing. Griswold continued,

[m]en still find meaning as fathers as they struggle to discover new meanings for fatherhood. What has prompted these new meanings are changes in the structure of the household economy coupled with the rise of feminism.5

With women providing a second income, and increasingly becoming the primary breadwinner of the household, a reconceptualization of the definition of fatherhood was ongoing by the start of the Baby M trial.

This reconceptualization envisioned a growing role for men in the home. More and more Americans viewed men as equal caregivers. Furthermore, men were intended, under this version, as sharing in the nurturing and emotional support of the family’s children. Robert Griswold characterized this version of fatherhood in the following manner,

[p]rompted by feminism and women’s rising work participation, this second version challenged men to share equally the nurture and daily care of their offspring. For this to happen, men had to become more than after-hour buddies and playmates and take on the less appealing aspects of child care.6

4 Robert Griswold, Fatherhood in America: A History (New York: Basic Books, 1993), 242.

5 Ibid.

6 Ibid., 245. 142

As this passage suggests, under this alternative definition of fatherhood, men were expected to share more equally in childrearing and managing the family.

In addition, the late 1980s witnessed the continued growth of the father’s rights movements. A product of rising divorce rates and family law assumptions that often granted custody rights to mothers, the father’s rights movement operated on the belief that a gender bias existed in family law decisions. Men who participated in organizations advocating father’s rights often adopted language critical of childrearing in homes without a masculine presence. In describing masculinity and the father’s rights movement, Griswold wrote,

[b]y using the language of equality and appealing to the assumptions of the new fatherhood, the former turn feminist assumptions on their head and complain of the oppression of males in custody awards. By worrying about the absence of fathers and invoking the spirit of the “Wildman” to overcome “softness,” the latter hope to remasculinize American society by rediscovering the power of fathers.7

The Baby M litigation accentuated these changes and challenges to the idea of fatherhood. The Whitehead’s family structure, in news coverage and trial testimony, embodied the traditional conceptualizations outlined above. Richard Whitehead was intended to be the primary breadwinner of the family. While Mary Beth Whitehead found the occasional job, her employment was only to provide stopgap measures for the insecurity that was characteristic of Richard’s work. The Sterns, in contrast, were described as a modern family. Both William and Elizabeth Stern were employed and provided financially for the family unit. Moreover, both William and Betsy Stern were

7 Robert Griswold, Fatherhood in America: A History (New York: Basic Books, 1993), 245. 143 described as equally sharing in the role of childrearing and providing emotional support for the baby. In the pages that follow, the differences and the stark contrasts in fatherhood and masculinity, as illustrated by William Stern and Richard Whitehead, will be discussed and analyzed.

William Stern and Richard Whitehead

Following opening arguments by both sets of attorneys, William Stern was called to testify as the first witness of the Baby M trial. As with Elizabeth Stern and Mary Beth

Whitehead, the character and reputation of William Stern was critical to the outcome of the litigation. As such, Stern’s own attorneys sought from the beginning of the trial to characterize Stern as a warm and friendly man, intelligent and thoughtful, seeking only to know the joys of fatherhood and continue his family’s bloodline. Accordingly, William

Stern’s own attorneys, through a series of questions, elicited responses painting a portrait of man that would be a remarkable father.

By utilizing his own direct testimony, the following story of William Stern emerged. Stern was born in Berlin, Germany on January 27, 1946. He was the only child of German Jewish immigrants. When Stern was less than two years old, he along with his parents, immigrated to the United States – entering the Port of New York on

Christmas Day 1947. However, they quickly moved to Saint Louis, Missouri before ultimately settling in Pittsburgh, Pennsylvania – renting one floor of a multiple-family house. Stern’s father had been a successful bank manager in Germany; his mother had

144 owned and operated a clothing store until the Nazis came to power in 1933.8 By 1940, the Sterns were in hiding, fearing for their lives as Hitler, Eichmann and the SS swept across Europe carrying out the Third Reich’s final solution. While William Stern’s father had been a successful banker in Germany before the war, he had trouble finding work in the United States. In Pittsburgh, he initially found employment in a luggage factory.

However, the job proved short lived when the factory moved to the suburbs.

After he lost his job at the luggage factory, Stern’s father found employment as a short order cook working the night shift. Because his wages were inadequate to support the family, William Stern’s mother found a job at a storm window factory, placing the rubber stripping around window glass. According to William, the Sterns eventually became American citizens sometime in either 1954 or 1955.

Valuing education, William Stern’s parents scrimped and saved in order to send their son to a private elementary school in Pittsburgh. When William Stern was twelve, his father passed away. William was close to both of his parents and after his father’s death he lived alone with his mother – having no other relatives in the United States. As

William grew up, he went on to attend Taylor Allderdice, a public high school in

Pittsburgh. He took on a paper route and worked in the school library in the afternoons to help the family make ends meet. His attorneys portrayed Stern as a sympathetic man and used his hardship and heartbreak to their advantage. Moreover, they were laying a foundation of a responsible individual. The discussion of Stern’s paper route would

8 Testimony of William Stern, January 5, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987). 145 foreshadow the overall characterization of Stern as a hardworking, financially reliable man.

In 1963, Stern graduated from high school and started college at the Bronx campus of New York University. Originally, Stern’s selection process in colleges was pragmatic. As Stern described,

[w]hile we lived in Pittsburgh, at the time, economic conditions weren’t great in Pittsburgh and my mother was having trouble finding a job. She felt she could have better opportunity in New York and since it would be cheaper for me to live at home, we both – she wanted to move to New York and so I with her to New York, and so I looked for a school in New York and that’s how I wound up going to N.Y.U.9

While William was attending NYU, his mother was able to help support them by taking a job at a printing plant. Later, she would work as a “helper” for an “old lady.”10 In addition, William helped support himself by receiving a scholarship, as well as working part-time in a laboratory. At N.Y.U. Stern ended up majoring in Chemistry and Math, and in 1967, he graduated from N.Y.U. with a Bachelor of Arts degree. Following graduation, William received a fellowship11 from the University of Michigan to study biochemistry.

9 Testimony of William Stern, January 5, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 52.

10 Ibid., 53.

11 The fellowship paid for William Stern’s room and board and tuition. The terms of the fellowship did not permit students to work outside the university. However, as he would recall at trial, William still needed extra or supplemental income in order to make car payments. In order to earn this extra income, William would sell plasma. What money he earned that he didn’t need for expenses would be sent back home to his mother. Stern eventually was forced to stop this arrangement, after he met Elizabeth, because she threatened to tell William’s mother where the money was coming from. See Testimony of William Stern, January 5, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 55 - 56. 146

When William arrived in Ann Arbor, in 1967, he did so for the first time in his life without the intention of living with one of his parents. When asked about leaving

New York without his mother, William replied, “[s]he wasn’t exactly thrilled at the idea, but she also realized that I had to start breaking off, you know, start off on my own too.”12

That same year, Stern met a young woman named Elizabeth (Betsy) Sell. While they were taking the same graduate class, they didn’t really introduce themselves to each other. It took almost two years before they would formally meet at a mutual friend’s party.13 Yet, as soon as they did, the two were quickly inseparable. They dated another five years before marrying in 1974.

William Stern graduated from the University of Michigan, in 1972, with a Ph.D. in biochemistry. After William and Betsy were married, they started living together in

New York City. Betsy had already moved to New York the previous year, after she followed her thesis advisor when he accepted a new position at Columbia University.

When William arrived in New York, he accepted a post doctorate position at the Public

Health Research Institute.

Shortly after they were married, Bill and Betsy discussed the possibility of having children. Stern described at trial,

[w]e wanted to have children and the question – we were asking ourselves is when we would have the children and we decided that we wanted to do it, have the children, when we were financially able to properly take care of

12 Testimony of William Stern, January 5, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 54.

13 Ibid., 58. 147

them and that would be, from a practical point of view, after Betsy had finished her internship and residency.14

Consequently, the Stern’s postponed having children. Betsy was still several years away from completing her medical degree and residency, and the Sterns didn’t feel it was fair to a child to have parents unable to focus their attention on supporting a family.

Nevertheless, the portrayal of William Stern as a reasonable and thoughtful provider continued. His attorneys continued to highlight his employment history and his financial support of Betsy while she finished medical school.

In the years that followed, William Stern continued to work at the Public Health

Research Institute while Betsy attended medical school at Columbia University. After

Betsy Stern graduated from Medical School, she completed her training as a pediatric resident. In 1983, William Stern changed jobs and started working for Warner Lambert pharmaceuticals in Morris Plains, New Jersey.15

After Betsy discovered she had multiple sclerosis, the Sterns eliminated the possibility of Betsy becoming pregnant. As William Stern would later recall, “I had seen an ad in a New York newspaper, soliciting a surrogate mother, and I had been aware of what it was because I had seen a TV show a couple of years before that with Noel Keane about surrogate parenting and so I showed it to Betsy, and Betsy liked the idea as well as

I did.”16 Originally, however, the Sterns wanted to pursue a form of the procedure that

14 Testimony of William Stern, January 5, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 62.

15 Ibid., 65.

16 Ibid., 80. 148 would use Betsy’s egg and William’s sperm. Unfortunately for the Sterns, that procedure was still very much experimental in 1984, and all of the facilities that Betsy contacted informed her that they were not currently practicing the technology. In light of the unavailability of gestational surrogacy, the Sterns eventually decided to pursue a surrogacy arrangement with the Infertility Center of New York – eventually leading the

Sterns to meet Mary Beth and Richard Whitehead in 1985.

Curiously, attorneys and journalists were not as interested in exploring the background and history of Richard Whitehead. The result was a fragmented and incomplete picture of Richard during the Baby M trial. While attorneys and expert witnesses often only explored specific aspects of the lives of each prospective parent,

Richard represents a further deviation. Certainly, Richard Whitehead’s personality contributed to the scattered portrayal. A quiet and taciturn individual, Richard often provided little information even when prompted. As a result, to develop a more complete picture, it is necessary to supplement his attorneys’ depiction with information from

Mary Beth Whitehead’s memoir.

Richard (Rick) Whitehead was born on December 19, 1949. Unlike William

Stern, Whitehead grew up in a family with multiple siblings. He was the son of a policeman, and Mary Beth would later describe Richard as someone who “learned early to follow the rules.”17 A middle child, Rick had two older brothers, Edward and Robert, along with a younger sister, Nancy.18

17 Mary Beth Whitehead, A Mother’s Story: The Truth About the Baby M Case (New York: St. Martin’s Press, 1989), 71.

149

Richard Whitehead graduated from high school in 1968. Following high school,

Rick was drafted into the United States Army, and served overseas in the ongoing conflict in Vietnam. Rick spent the first six months of his service with the 9th Division.

From the very beginning, Rick witnessed violence. Mary Beth recounts in her book, A

Mother’s Story: The Truth About the Baby M Case, that Rick was first stationed in an isolated area. Local children would often visit the soldiers stationed in the area looking for handouts. In Mary Beth’s version of Rick’s story, one day several local children were caught stealing. Mary Beth wrote,

[o]ne of the guys who caught them picked up a concussion grenade and threw it into the group. The rice paddies were so dry and the ground was so hard that when the grenade went off, it made the dirt fly like shrapnel. It penetrated the children’s skin and tore it apart. The children ran from the explosion, cut up and screaming in agony. That was the start of Rick’s Vietnam tour.19

Witnessing the violence and cruelty of war firsthand, Rick became quiet and reserved.

His experience with the Vietnam War would greatly influence his personality and behavior later in life. The Whitehead’s attorneys mentioned on multiple occasions

Richard’s service record in Vietnam.

The final seven months of Rick’s service in the armed forces was spent with the

101st Division. Again, Rick relayed stories of war and savagery that Mary Beth would later recount. Specifically, Rick told Mary Beth about an instance when he was helping

18 Testimony of Richard Whitehead, January 7, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 3 - 4.

19 Mary Beth Whitehead, A Mother’s Story: The Truth About the Baby M Case (New York: St. Martin’s Press, 1989), 71. 150 set up a landing zone in the jungles north of the city of Hue. While working, the men were suddenly attacked by gunfire and a man standing next to Rick was hit by a rocket propelled grenade (RPG), disfiguring his face. Only days later, Rick’s division was hit again by enemy forces, suffering fourteen deaths.20 He served a total of thirteen months in Vietnam, and returned to the United States in the spring of 1971. While the expert witnesses at trial never explored these incidents explicitly, Rick’s experience with the

War was implicit in many of the psychologist’s discussions regarding his subsequent substance abuse problem.

After he returned home, Rick met Mary Beth while she was working in her brother Donny’s luncheonette.21 Rick had very little interaction with Mary Beth until one day when he was involved in a hit-and-run car accident. Rick had been trying to hitchhike when a car struck him.22 Up to that point, Rick and Mary Beth had never gone on a date or even been alone together. Yet, after Rick’s accident, one of his friends went to the diner to let Mary Beth know. She made him a sandwich and brought it, along with a soda, to the hospital.23 Mary Beth started taking care of Rick while he was in the hospital, cleaning his cuts and talking to him about his injuries.

Mary Beth would later write about the consequences of Rick’s time in Vietnam in a way that reflected Rick’s identity, as well as her desire to care for others. Mary Beth

20 Mary Beth Whitehead, A Mother’s Story: The Truth About the Baby M Case (New York: St. Martin’s Press, 1989), 72.

21 Ibid., 68.

22 Ibid., 70.

23 Ibid., 69. 151 wrote, “[m]any years would pass before I could understand how perfectly Rick’s need for a woman to help soothe the nightmare of Vietnam had meshed with my own deep longing to take care of someone.”24 In this manner, Mary Beth expresses a theme that would be emphasized often during the Baby M trial. Rick was dependent on Mary Beth.

He was the passive partner in their relationship. In short, Mary Beth cared for a man unable to care for himself.

In many ways, the experience of Vietnam never quite left Rick. Not long after

Richard Whitehead and Mary Beth Messer married, Rick was involved in another automobile accident. Rick had recently obtained a side job digging graves at a local cemetery for fifty dollars a week.25 One evening after work, Rick had stopped at a local bar to have a few beers. As he was proceeding home, he lost control of the bulldozer he was pulling when he turned a corner on the local highway. When law enforcement arrived, they could smell alcohol and forced him to take field sobriety tests.

Consequently, Rick was convicted of “impaired driving.”26

In the following months, Mary Beth was forced to drive Rick to work at the paving company he was employed with. Mary Beth remembered that,

Rick couldn’t stand the feeling of total helplessness and dependency. On July 6, he pulled the patch off his eye and announced that he was driving the car to a party. He was not supposed to get his license back until July 15. In an effort to keep him from driving, I took the keys and hid them in my bra. He was so mad that he left the house and walked to the party.27

24 Mary Beth Whitehead, A Mother’s Story: The Truth About the Baby M Case (New York: St. Martin’s Press, 1989), 73.

25 Ibid., 69.

26 Ibid., 75.

152

That night, Mary Beth went into labor with the couple’s first child. Rick was completely incapacitated as a result of drinking too much at the party. Mary Beth would later write,

“[a]s soon as he walked into the house, my labor started. ‘I think I’m going to have the baby,’ I said. He staggered to the bed and passed out.” This instance, along with his convictions for drinking and driving, would later become keys discussions at the Baby M trial. Rick Whitehead’s inability to control his drinking, coupled with difficulty holding employment, would be used to characterize his suitability for fatherhood.

After having two children, Ryan and Tuesday, Rick and Mary Beth decided they needed to take more permanent action regarding birth control. At the time, Mary Beth was taking medication for varicose veins, and found her birth control prescription tended to aggravate her condition. Looking to other options, the Whiteheads decided against having Mary Beth’s tubes tied, as it would require her to spend three days in the hospital.

As Rick Whitehead would testify, a vasectomy could be accomplished in just an office visit.28 Moreover, the Whiteheads believed that it would be easier to reverse a vasectomy if they ever reconsidered their desire to have any additional children.29 Mary Beth would recall the discussion surrounding Rick’s vasectomy differently. She would later write,

“[a]t the time, we were young and poor, and two children seemed like all we’d ever be able to handle economically. Rather than risk another accident, my doctor had advised a

27 Mary Beth Whitehead, A Mother’s Story: The Truth About the Baby M Case (New York: St. Martin’s Press, 1989), 76.

28 Testimony of Richard Whitehead, January 7, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 5 - 6.

29 Ibid., 57. 153 more radical approach to birth control.”30 This account of the Whitehead’s representations regarding their desire to have children differed further from the account given at trial by William Stern. Regarding the Whiteheads, Stern testified that,

[h]er husband had indicated, as well as the application, that her husband had a vasectomy, so to us that really meant that they didn’t want anymore children, because having a vasectomy is a pretty drastic step and you’re saying that’s it, you don’t want anymore kids and Rick, in fact, had said if Mary Beth wanted to keep the kid, he’d walk right out on her.31

The difference in the characterization of Richard Whitehead’s vasectomy reflected each party’s portrayal of Richard Whitehead’s interest in the surrogacy arrangement. Stern’s description of the Whitehead’s representations would later gain credibility as a result of

Richard’s own statements. At trial, Rick would recount that he wasn’t very excited about the possibility of Mary Beth serving as a surrogate. He stated, “[a]t first, I was against it.

I guess it’s my pride. I thought I’d feel like less of a man if she carried somebody else’s child. But I understood her reasoning and I can live with it.”32 Indeed, during direct examination in the trial phase, Harold Cassidy asked Whitehead, “[d]uring the pregnancy, did you ever actually feel like you were less than a man?” In other words, Richard

Whitehead believed that his masculinity would be put into question if his wife carried another man’s child.

30 Mary Beth Whitehead, A Mother’s Story: The Truth About the Baby M Case (New York: St. Martin’s Press, 1989), 89.

31 Testimony of William Stern, January 5, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 118 – 119.

32 Testimony of Richard Whitehead, January 7, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 9. 154

However, Rick’s hesitation concerning surrogate motherhood was partially assuaged after he learned about the financial compensation associated with the agreement. When asked by the Whitehead’s attorneys regarding the financial benefits to the surrogacy contract, Rick suggested that Mary Beth wasn’t interested in money.

Instead she was only focused on helping another couple achieve the joy of parenthood.

However, when Harold Cassidy asked Rick about his personal feelings concerning the money, Rick stated, “I saw no harm in taking the money. It would benefit Ryan and

Tuesday.”33 As such, Richard saw the ability of the family to add additional income and supplement Richard’s salary. According to Rick Whitehead, however, he would not always be receptive to the surrogacy payments. Later in the surrogacy process, Rick would have more misgivings about taking the payments – even if the financial component would benefit his children. Mr. Whitehead would tell the court, “[t]owards the end of the pregnancy, the thought of taking $10,000 to help Ryan and Tuesday with a college education, it was like selling their sister in order to benefit them. It was – it was very difficult to live with that thought.”34 In other words, as the pregnancy continued,

Richard Whitehead grew more and more uncomfortable about supplementing the family’s income with payments associated with Mary Beth Whitehead’s reproductive labor.

33 Testimony of Richard Whitehead, January 7, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 9-10.

34 Ibid., 10-11.

155

In addition, Richard Whitehead was asked how he felt after the birth of Baby M.

Discussing seeing the child for the first time in the hospital room, Whitehead replied, “I think I wanted to keep the baby, too. That was – that was the first time I seen a child born. It’s just completely amazing. I think I grew very attached right then and there.”35

Richard had previously testified that due to external circumstances, he was unable to be present at the birth of his other children. Accordingly, the first time he was given an opportunity to see a child born was the birth of Baby M. He explained that his feelings toward the child had changed during the delivery. Prior to the birth, he was able to convince himself that the child wasn’t his and that he would be able to part with it.

The background and history of both William Stern and Richard Whitehead were fundamental to the custody phase of the Baby M litigation. The attorneys representing

William Stern and Richard Whitehead attempted to demonstrate the ways in which the men exemplified widely held societal notions of fatherhood in the United States. The ability of either man to provide for his family became a central component to the trial strategies of both the Stern’s and the Whitehead’s lawyers. Moreover, expert witnesses scrutinized the histories and backgrounds of William Stern and Richard Whitehead.

Along with the psychological evaluations, the personal backgrounds were utilized to determine the relative “fitness” of each husband for fatherhood.

“Fit” versus “Unfit” Expert Witnesses and the Determination of Suitable Fatherhood

35 Testimony of Richard Whitehead, January 7, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 15. 156

Similar to the handling of Elizabeth Stern and Mary Beth Whitehead, several expert witnesses testified about the characteristics and personalities of both William Stern and Richard Whitehead regarding their aptitude towards fatherhood.36 Importantly, the expert witnesses were asked to testify by the guardian ad litem. In other words, the experts were not supposed to have a bias in favor of either set of parents. The experts’ judgment was to be independent and solely focused on the welfare of the child.

Moreover, their testimony centered on several fundamental aspects of masculinity as it related to William Stern and Richard Whitehead. The experts mirrored the attorneys’ focus on the ability of each man to be a provider and breadwinner for the family.

Moreover, the witnesses stressed the lack of assertiveness for both William Stern and

Richard Whitehead. Both men were characterized as weak and non-aggressive.

In addressing the types of topics and issues examined by the expert witnesses, Dr.

David Brodzinsky stated,

[a]n assessment of the marital stability, importantly an assessment of the family dynamics that are involved, an evaluation of the quality of relationship and interpret that in terms of attachment between the baby and

36 In describing the kinds of testing he conducted, Dr. Brodzinsky stated, “I gave each of the adults a self report objective self report personality test called Cattell 16 PF, personality factor. This is a self report questionnaire in which they receive approximately 186 questions which they have to answer on a one to three scale to the extent which they agree or disagree or to the extent a certain statement applies or doesn’t apply to them. It’s a well-standardized test, one that’s frequently used as opposed to what’s called M.M. P.I. which is a widely used test clinical, but a very, very long test, takes three hours just to fill that out. I also gave them Rorschach test and TAT, Thematic Apperception Test. Both of those are so-called projective or subjective tests. The assumption being that when you present an individual with a relatively ambiguous symbol, no right or wrong answer, they tend to project into it some of their individual dynamics, their own intellectual life, if you will, and from that we extract patterns of personality dynamics.” Testimony of Dr. Brodzinsky, February 20, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 30. 157

all four adults as well as any degree of attachment between the baby and the Whitehead children.37

As with Betsy Stern and Mary Beth Whitehead, Dr. Brodzinsky and the other experts evaluated both Bill Stern’s and Richard Whitehead’s personality and temperament.

Comparable to each prospective mother, Dr. Brodzinsky’s evaluation was fundamental to the basic determination of Baby M’s custody.

In discussing Bill Stern, Dr. Brodzinsky testified that Stern was initially nervous and apprehensive about the psychological evaluation. Dr. Brodzinsky stated, “[l]et me begin by saying that my initial impression was one of a person who was somewhat reserved emotionally. He was anxious when he first entered, as almost all adults would be in this particular kind of evaluation.”38 Stern’s trepidation was a clear consequence of the enormous stakes involved in the litigation. Dr. Brodzinsky was essentially making a recommendation on whether or not William Stern should be allowed to keep his child. If

William Stern’s statements or actions were interpreted in a negative fashion, he might never be awarded custody of Baby M.

However, as Dr. Brodzinsky testified, William Stern’s anxiety was not out-of- place or unnatural. Furthermore, Dr. Brodzinsky believed that William Stern made a whole-hearted attempt to be honest and forthright during the evaluation. Dr. Brodzinsky said, “I found no evidence of any conscious fabrication or distortion of facts just to meet his own needs. I suppose I should say one would expect some degree of distortion and

37 Testimony of Dr. Brodzinsky, February 20, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 27.

38 Ibid., 31. 158 selective memory, if you will, in this kind of situation by all parties.”39 As Dr.

Brodzinsky’s testimony suggests, individuals involved in contentious litigation will often contort the facts and modify their testimony to present the case in a manner most favorable to themselves. Even under the stress of a legal trial to determine whether or not he would be a good father, Bill Stern came across as straightforward and candid.

Additionally, in an effort to evaluate Bill Stern’s temperament and personality,

Dr. Brodzinsky conducted an intelligence assessment. Unsurprising, Bill Stern tested very well. As discussed previously, the Sterns’ commitment to education, as well as almost daily exposure to news publications and academic journals, allowed both to stay abreast of current events. As Dr. Brodzinsky explained, “[o]verall I would estimate that he’s a man who’s probably within the bright normal range in most areas but with specific abilities from average to the very superior range.”40 In other words, Bill Stern’s education and aptitude allowed him to score highly on the intelligence portion of Dr.

Brodzinsky’s examination. However, Dr. Brodzinsky also noted that Bill Stern’s apprehension and anxiety complicated the test results. Dr. Brodzinsky acknowledged,

“[o]n the intelligence test Mr. Stern showed marked variability performance ranging from very superior range down to I believe it was low average to borderline range. In those areas where the test is most sensitive to anxiety evaluation, apprehension, he tended to

39 Testimony of Dr. Brodzinsky, February 20, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 27.

40 Ibid., 32 - 33. 159 perform relative to what I would have expected.”41 Again, the test results demonstrated a very intelligent man, yet the testing was impacted by the anxiety of the situation.

At the core of Dr. Brodzinsky’s evaluation was his assessment of William Stern’s personality. A central component of Bill Stern’s overall personality was his emotional wellbeing. Regarding his assessment of Bill Stern’s personality, Dr. Brodzinsky stated,

“Mr. Stern came across in a way that is very common among scientists, if you will. He showed good ego maturity. He seems to be emotionally stable. Reality testing was excellent, well oriented to time, person and place.”42 As this statement illustrates, Dr.

Brodzinsky considered Bill Stern’s professional life in his overall impression of Stern’s emotional state. Stern’s employment as a scientist, at times, dominated Dr. Brodzinsky’s testimony regarding Stern’s personality. Dr. Brodzinsky continued, “I would say overall he is a man who tends to be somewhat more reserved than maybe most people as many scientists tend to be. There is a certain detachment in the presentation of self on an emotional level.”43 Again, Dr. Brodzinsky emphasized Bill Stern’s profession as it related to his emotions. Similar to Elizabeth Stern, this relationship between the Stern’s careers and their personality traits is important as it illustrates how the similarities in the educational backgrounds of the Sterns and the experts influenced the testimony at trial.

41 Testimony of Dr. Brodzinsky, February 20, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 32.

42 Ibid., 51.

43 Ibid., 52. 160

The importance of this connection may also be seen in the further description of

Bill Stern’s “scientific” personality. The experts tended to accentuate Bill Stern’s commitment to reason and logic. This emphasis is in clear contrast to the depiction of

Mary Beth Whitehead as emotionally unstable and irrational. Dr. Brodzinsky said, “[h]e was a person who values reason over emotion. For the most part reason dominates his mode of functions over emotion. In fact, there was some discrepancy. In the test he comes across much more emotionally reserved and I suspect that is [a] reflection of his history.”44 The history that Dr. Brodzinsky is referencing is Bill Stern’s family background. Many of the experts, including Dr. Brodzinsky, believed that Bill Stern’s extended family perishing in the holocaust influenced his emotions in adulthood. In particular, his reserved nature and detachment were a consequence of a lack of an extended family. Moreover, Bill Stern’s loss of his father early in life contributed to an individual that was quiet and reserved.

In his testimony, Dr. Brodzinsky specifically referred to Bill Stern’s loss as a child. He reasoned, “I think for the most part this can be easily understood in terms of his own history beginning with the loss of his father when he was twelve, somewhat ambivalent relationship with his mother during childhood but which improved.”45 As discussed above, this family history coupled with a difficult relationship with his mother, suggested to Dr. Brodzinsky that Bill Stern might have difficulty with relationships. He

44 Testimony of Dr. Brodzinsky, February 20, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 52.

45 Ibid., 53. 161 might seek out detachment from individuals looking to be close to him in order to avoid the loss he previously experienced. Moreover, his history with relationships was further complicated by a lack of strong associations with individuals outside his family. Bill

Stern didn’t have very many close friends. Dr. Brodzinsky noted, “[h]is peer relationships were not that strong according to his own report, also the loss of his mother later on. The fact that his family, virtually all of his family except for his parents, were lost in the Holocaust.”46 As this passage illustrates, the lack of other relationships was connected to Stern’s losses as a child. In summary, Bill Stern’s life seemed largely void of close relationships with the exception of his wife. While experts attributed some of this personal detachment to his personality and “scientific” demeanor, it clearly contributed to an overall impression of Bill Stern as largely isolated and sequestered.

Dr. Brodzinsky went further in describing Bill Stern. He suggested that Stern had difficulty handling emotions. He testified, “I indicated that in my report that I found he had some difficulty handling strong emotions, that came across not only in the testing but in the interview and so forth. He’s [a] man who d[oes] not like confrontation.”47 Of course, this assessment of Bill Stern’s dislike for confrontation was crucial to understanding how the Baby M litigation unfolded. From the beginning of the disagreement between the Sterns and the Whiteheads, Bill Stern attempted to avoid confrontation. When Mary Beth Whitehead came to the Stern’s home the day after she

46 Testimony of Dr. Brodzinsky, February 20, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 53.

47 Ibid., 52 - 53. 162 gave the Sterns Baby M, Bill Stern felt sorry for Mary Beth and didn’t want to further upset her. However, in this regard, Dr. Brodzinsky characterized Bill Stern’s effort to avoid conflict as someone prone to manipulation. Dr. Brodzinsky contended, “I think to some extent he was manipulated early, that’s his term, but I think it’s also my judgment too by the strong emotions presented by Mrs. Whitehead.”48 Clarifying his testimony,

Dr. Brodzinsky stated, “[w]ith respect to, you know, the baby, the custody of the baby at least having the baby in his and his wife’s possession, allowing Mrs. Whitehead to take the child and she came with her sister.”49 In other words, the characterization of Bill

Stern’s personality is that of a passive individual prone to manipulation. This characterization of passivity would become an important component to a larger depiction of William Stern by expert witnesses as a weak man – a theme discussed in greater detail below.

For all of the expert witnesses concerns over Bill Stern’s relationships with colleagues, peers and family members, they also uniformly noted a strong and healthy bond with his infant daughter. In fact, not a single expert during trial questioned Bill

Stern’s connection and fondness for his child. Dr. Brodzinsky observed, “[h]e has a very strong attachment to his daughter which from his report and I’ve no reason to disbelieve began during the pregnancy itself when the reality of the child began.”50 As this

48 Testimony of Dr. Brodzinsky, February 20, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 53.

49 Ibid.

50 Ibid. 163 quotation demonstrates, Dr. Brodzinsky relied on self-reporting for large portions of his analysis. In many ways, this reliance was understandable. The Baby M litigation did not begin until after Baby M was born. None of the trial experts observed or evaluated the

Sterns or the Whiteheads prior to the birth of Baby M. As such, Dr. Brodzinsky was forced to rely upon the self-reported statements of both the Sterns and the Whiteheads.

However, this reliance was supplemented by his observing the interactions between the adults and Baby M following the commencement of the litigation. In summarizing his observations, Dr. Brodzinsky stated, “[t]he interactions I observed are a joy to watch.

This is a child who responds exceptionally well to her father. There is much cooing behavior and positive affect, emotional tone was wonderful to watch.”51 In other words, all the concerns about attachment and bonding dissipated after Dr. Brodzinsky watched

Bill Stern interact with Baby M. Nevertheless, the perceptions of a passive and taciturn man remained.

Moreover, while Bill Stern was characterized as connected and bonded with his child, experts also viewed him as an insecure parent. He didn’t display signs of self- assurance with respect to childcare or childrearing. Furthermore, he seemed deferential to his wife on issues related to Baby M. Indeed, Dr. Brodzinsky testified,

[a]lso his wife Dr. Stern appears to be exceptionally competent with children and that they seem to have no possessiveness and inner-actions with the baby and whatever insecurity he has as a parent which I think is quite common among many first time fathers especially I think that will pass quickly.52

51 Testimony of Dr. Brodzinsky, February 20, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 52.

52 Ibid., 58. 164

Again, Dr. Brodzinsky characterized Bill Stern as a father who lacked confidence with respect to his interactions with his daughter. However, Dr. Brodzinsky also didn’t believe that this was a unique quality among first time fathers or even a problematic aspect of Bill Stern’s personality. Dr. Brodzinsky continued,

[w]ith regards to Bill Stern’s “insecurity” as a parent…”I don’t think it will continue. I think first of all one has to understand in the context he had relatively little experience with children by his own admission before this, that he’s only had the baby with him for ten months now I guess, no, six months now, that he seems to be competent, he seems to be able to utilize information to rely on when appropriate on others to bolster his knowledge and skills.”53

As this quotation demonstrates, Dr. Brodzinsky utilized Bill Stern’s background and

“scientific” personality to portray his insecurity as a positive virtue. In Stern’s case, his insecurity is an advantage, because Bill Stern’s intellect and character motivated him to seek out expertise and assistance. In other words, he might not be self-assured and certain in his actions regarding rearing his daughter, but he would find qualified people to help him in areas he was less competent.

Similar to Dr. Brodzinsky, Dr. Schechter viewed William Stern as a sympathetic actor in the litigation. He described Bill Stern as someone who could relate and empathize with others. In particular, he believed Bill Stern understood the feelings of

Mary Beth Whitehead. Moreover, he characterized Bill Stern as caring and concerned about Mary Beth Whitehead’s overall well being. Dr. Schechter stated,

[f]rom Mr. Stern I think that we saw, I saw, the sense of concern about Mrs. Whitehead and the pain that this was all causing her. As I mentioned, I

53 Testimony of Dr. Brodzinsky, February 20, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 58. 165

think yesterday, that I felt that there was a good deal of his own and his wife’s feelings about the potential loss of the baby, that then set in motion the whole series of his feelings.54

In this statement, Dr. Schechter suggests that William Stern identified with the pain Mary

Beth Whitehead was experiencing. In fact, during Bill Stern’s own testimony during trial, he described how he attempted to console Mary Beth Whitehead during the days after her separation from Baby M. Bill Stern relayed his own experiences with loss and separation to Mary Beth, hoping that hearing about the difficulty with losing someone you love would help her with turning over the child to the Sterns. Furthermore, Bill Stern attempted to communicate the love he possessed for Baby M. Dr. Schechter elaborated,

“[t]hose feelings were, again as I was mentioning before, the interruption of the lack of continuity with a blood relative and the importance that this baby represented to him.”55

All of this testimony was a component of a larger representation of Bill Stern, at trial, as an intelligent, sensitive and emotional man.

The reaction and emotional response of Bill Stern was also compared to the response of Mary Beth Whitehead in the days following the birth of Baby M. In short,

Bill Stern’s masculinity was contrasted with not only Richard Whitehead, but also Mary

Beth Whitehead. As referenced above, Bill Stern was portrayed as an individual that was reasoned and logical in his approach. Dr. Schechter thought it was interesting and important to contrast that approach with Mary Beth Whitehead’s actions following the

54 Testimony of Dr. Schechter, February 25, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 8.

55 Ibid., 8 - 9. 166

Stern’s initially taking Baby M home. Dr. Schechter said, “[w]hat was so interesting and

I think important in terms of the difference in reaction between these two parents was that with Mrs. Whitehead there was the reaction of you’re doing me in and you may force me into not only running away but suiciding, [sic] et cetera.” Dr. Schechter’s evaluation depicted Mary Beth as illogical and almost unhinged. He continued, “[w]hen the issue came up with Mr. Stern about continuing on if, indeed, the Court ruled in favor of Mrs.

Whitehead, in almost Solomonic fashion, Mr. Stern said, I don’t think that I want to have continued contact, not because of the pain to me but the pain that this might cause the baby.”56 To Dr. Schechter, this instance demonstrated the essential difference between

Bill Stern and Mary Beth Whitehead. Bill Stern was willing to bear severe emotional pain for the good of the child, whereas Mary Beth seemed to be unwilling to consider any alternative other than her retaining custody of Baby M – even if that caused the child harm in the eyes of others.

The Baby M trial also highlighted how the litigating parties viewed fatherhood.

Throughout the trial, Mary Beth would only casually acknowledge William Stern’s paternity. Mary Beth would often diminish William Stern’s relationship with Baby M.

She would refer to Bill Stern as “Mr. Sperm.” Her depiction of William Stern as simply a sperm donor diminished his involvement in Baby M’s life. Moreover, it was a way of rhetorically refusing to acknowledge William Stern as the father of Baby M. Mary

Beth’s characterization did not go unnoticed by the Sterns, nor by the psychologists. Dr.

56 Testimony of Dr. Schechter, February 25, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 9. 167

Schechter described the Stern’s reaction to Mary Beth’s characterization in the following manner, “I think they were very much concerned about the effect that she made the sort of comments that were exemplified by the food, the clothing, the jungle rot and so on and indicated that, essentially, that she considered Mr. Stern to be the sperm donor.”57 In other words, Mary Beth Whitehead didn’t consider Bill Stern to be the father of Baby M.

According to Dr. Schechter, Mary Beth Whitehead perceived Bill Stern to be nothing more than a sperm donor, a concept devoid of fatherhood to Mary Beth. In describing

Mary Beth’s statements, Dr. Schechter continued, “[h]e’s not the father, fathers aren’t called sperm donors in the usual custody matters that I’ve been involved with before.”58

As this statement explains, Dr. Schechter’s testimony reinforced the disconnection Mary

Beth was making between Bill Stern and fatherhood. Bill Stern might be considered the genetic parent, but Mary Beth Whitehead didn’t believe that conferred him with the title of “father.”

Similar to the other parents, when Dr. Brodzinsky discussed Richard Whitehead he noted that Rick was also nervous. He stated, “[i]nitially again like the others he was somewhat guarded and reserved, a little bit anxious not excessively so.”59 However,

Rick’s nervousness similarly was not interpreted as deception or dishonesty. This was a stark difference from the evaluations of his wife. Unlike Mary Beth, who was portrayed

57 Testimony of Dr. Schechter, February 23, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 177.

58 Ibid.

59 Testimony of Dr. Brodzinsky, February 20, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 84. 168 as disingenuous, Richard Whitehead was viewed as simply trying to represent himself in the best possible light. Dr. Brodzinsky suggested, “[l]ike Dr. Stern (Betsy) he scored quite high on fake good skill indicating [a] tendency to put himself in a socially desirable light which raised the question of the veracity of his reports.”60 Indeed, Dr. Brodzinsky compared Rick’s approach to the evaluation in very similar terms to his evaluation of

Elizabeth Stern. He believed that Rick wanted to highlight the better qualities of his personality and the best aspects of his family. Overall, Dr. Brodzinsky believed that

Richard Whitehead was an honest and straightforward man.

In describing Rick, Dr. Brodzinsky detailed specific instances where Rick demonstrated his trustworthiness. In particular, Dr. Brodzinsky believed that Rick was candid about some of the more negative aspects of the case’s history. In particular, Dr.

Brodzinsky cited Rick’s discussion of the telephone calls Mary Beth made to the Sterns following Baby M’s birth. In those telephone calls, secretly recorded by Bill Stern, Mary

Beth threatened suicide and implied she might accuse Bill of sexually abusing the

Whitehead children. Dr. Brodzinsky testified, “[m]y overall feeling though was that he was pretty honest and open about the situation. He acknowledged things about the telephone calls that his wife made to the Sterns.”61 This acknowledgment, along with other admissions, helped create a positive impression of Richard Whitehead for Dr.

Brodzinsky.

60 Testimony of Dr. Brodzinsky, February 20, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 84.

61 Ibid. 169

As with Bill Stern, Dr. Brodzinsky fashioned an overall image of Richard

Whitehead with his courtroom testimony as a weak, passive man – yet authentic. While perhaps molding the facts to illustrate his best qualities, Whitehead was portrayed as a sincere man. Moreover, like his assessment of Bill Stern, Dr. Brodzinsky characterized

Richard Whitehead’s overall emotional state. Again, his portrayal was largely positive.

Whitehead was an emotionally stable and grounded individual. As Dr. Brodzinsky contended,

[h]e’s a relatively mature individual, emotionally mature. I mean by that kind of down to earth person. I said he is what you see. There is no pretension. Struck me again and again that when I asked a question and he responded I felt comfortable with this person’s response in a sense that I felt he was telling me how he really felt. He was forthright, somewhat rule- bound, moralistic, conventional, compulsive.62

As Dr. Brodzinsky’s testimony demonstrates, Richard Whitehead was considered moralistic and rule-bound. Interestingly, this portrayal contradicts some of Richard

Whitehead’s behavior during the days following Baby M’s birth. For example, when police officers arrived at the Whitehead home to turn over Baby M to the Sterns, Richard had Mary Beth hand the child through a window, and then he left the property. Richard and Mary Beth subsequently fled New Jersey for a period of several weeks. As such, Dr.

Brodzinsky’s perception of Richard Whitehead’s personality reflects Whitehead’s own characterization of himself.

Nevertheless, Dr. Brodzinsky, as well as the other experts, believed Rick to be forthright. He was not viewed as especially aggressive or violent. Dr. Brodzinsky noted,

62 Testimony of Dr. Brodzinsky, February 20, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 85. 170

“I think there is evidence from the testing particularly of some difficulty in handling strong emotions, hostile aggressive feelings which are kept in check.”63 In other words,

Dr. Brodzinsky characterized Rick as an individual that didn’t react emotionally and irrational. Again, this is a strong contrast to the portrayal of his wife. To the extent that

Richard Whitehead experienced strong emotions, he didn’t become aggressive or violent as a result.

Moreover, during the trial, Richard Whitehead was further characterized as a submissive man. He often deferred to the decision-making of his wife. This description of Richard was picked up both by the trial experts and attorneys, as well as the press. Dr.

Brodzinsky explained, “[t]here was a submissive accommodating component to this man particularly in his relationship to his wife. It’s very clear that he is the passive partner in this relationship and that Mrs. Whitehead really for the most part is the controlling force who sets the rules.”64 As this quotation demonstrates, Dr. Brodzinsky believed that

Richard Whitehead was the submissive partner in the relationship. However, it wasn’t simply an observation from his time with the Whiteheads. Dr. Brodzinsky also discussed conversations with other family members. In particular, Dr. Brodzinsky discussed how

Mrs. Whitehead’s family also viewed Richard Whitehead as passive and acquiescent. Dr.

Brodzinsky continued, “[h]e acknowledged that, his wife acknowledged it, the Messers

(Mary Beth Whitehead’s family) acknowledged that she is the dominant force and that

63 Testimony of Dr. Brodzinsky, February 20, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 85.

64 Ibid., 86. 171

Mr. Whitehead frequently will accommodate to that.”65 In other words, Richard

Whitehead was portrayed by everyone at trial as a passive party in the relationship, an implicit characterization of weakness.

The characterization of passivity and submissiveness was not highly regarded by the expert witnesses. Richard Whitehead’s inability or lack of desire to be more assertive was linked to larger problems within the Whitehead family. Richard Whitehead was viewed as unable to provide stability within the home, since Mary Beth Whitehead controlled the overall family dynamic. As Dr. Brodzinsky noted, “[t]his sets up the stage for certain problems in my opinion in terms of family dynamics. He’s not a strong counterbalancing force for her tendency to be overruled and foster and enmesh only dependent pattern.”66 Accordingly, Dr. Brodzinsky felt that Richard Whitehead helped contribute to the more destructive aspects of Mary Beth’s parenting style. Mary Beth was characterized as a mother overly involved with the children. Her parenting style, according to the experts, did not encourage independence. Richard Whitehead’s inability to stand up to Mary Beth’s decisions and her rule creation provided their children with another example of dependent relationships versus independence.

This characterization was contrasted with the parenting style and overall relationship dynamics of the Sterns. Again, Dr. Brodzinsky, along with the other psychological experts, believed that the Sterns had a much more balanced relationship.

65 Testimony of Dr. Brodzinsky, February 20, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 86.

66 Ibid. 172

The Sterns were perceived as respecting the unique qualities each partner brought to the marriage. As Dr. Brodzinsky described, “I felt that each of them respects the uniqueness and the value of one another and that there isn’t one who says this is what I want and this is what we’re going to do.” As such, each individual possessed a certain amount of independence within the relationship. Dr. Brodzinsky continued, “I found the Sterns to be much more accepting of each other as equal, more equal sharing in terms of the baby, certainly in terms of the practicalities of rearing these children, feeding, changing and so forth as well as [the] emotional aspect.”67 Dr. Brodzinsky’s assessment illustrates that he viewed the childrearing responsibilities as best shared by the mother and father. The

Sterns appeared to exemplify that conception, whereas, the Whiteheads relied much more heavily on Mary Beth’s role as the caregiver with regards to the children.

As discussed above, the other psychological experts that testified during the Baby

M trial agreed with Dr. Brodzinsky’s characterizations of Richard Whitehead.

Describing Richard Whitehead as passive, Dr. Schechter added that Whitehead appeared to be a very calm man. Moreover, Richard Whitehead did not seem to let many things bother him. As Dr. Schechter testified,

Mr. Whitehead appeared to me to be a calm, concerned, supportive individual who really followed, in great part, the directions established by his wife. His ignoring, for example, when I asked specifically about any injuries of the blindness in his left eye I think is characteristic of something about his personality, that this really isn’t a big trouble to him.68

67 Testimony of Dr. Brodzinsky, February 20, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 87.

68 Testimony of Dr. Schechter, February 23, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 137. 173

This reference to Richard Whitehead’s accident, which left him partially blind, supported

Dr. Schechter’s overall impression of Whitehead. Even aspects of his life that created great difficulty were often handled in a way that minimized their burden so Whitehead could move beyond them. Indeed, this impression of someone that was able to handle adversity was supported in other observations of Dr. Schechter. For example, Dr.

Schechter noted that Richard Whitehead seemed to have a healthy approach to the Baby

M litigation. Dr. Schechter observed, “[o]ther things about him is that he indicated that if the Judge decided against him and his wife having the child that they would do fine, that they would do well together.”69 Again, according to Dr. Schechter, Richard Whitehead was a very calm and supportive individual.

However, Dr. Schechter also noted Richard Whitehead’s relationship with his wife. Like Dr. Brodzinsky, Dr. Schechter believed that Richard was the passive and submissive partner in their marriage. Furthermore, Dr. Schechter was troubled by the implications of Richard Whitehead’s relationship dynamic with Mary Beth. Richard

Whitehead, according to Dr. Schechter, was not seen as an authority figure within the family. He was rarely involved in the disciplinary aspects of raising the children. Dr.

Schechter testified,

[a]s far as Ryan was concerned, who was aggravated with having to come in and spend time, was handled entirely with reference to Mrs. Whitehead. Mr. Whitehead was quietly, at one particular point, asked him to quiet down a bit and stop complaining. But, it was really to Mrs. Whitehead that he related in terms of total discipline.70

69 Testimony of Dr. Schechter, February 23, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 137.

70 Ibid., 138. 174

As referenced above, this quotation demonstrates Dr. Schechter’s overall impression of the Whitehead home and the family dynamics as they related to Richard Whitehead. As a father, Richard was passive and quiet. He did not assert himself in the family. The children understood Mary Beth Whitehead to be the controlling figure, and the individual responsible for the discipline of the children.

The observation that Richard Whitehead was largely absent from the disciplinary role of raising the children was not lost on the children either. This aspect of the family dynamic also concerned Dr. Schechter. When Dr. Schechter discussed Richard

Whitehead with the children, they openly discussed how Richard wasn’t around very much. Moreover, they noted that he largely desired to be left alone. Dr. Schechter described the relationship in the following manner, “[w]hen I asked him about what he gets angry or sad about, Ryan indicated his mother doesn’t allow him to do some things and then went on to say he doesn’t really feel this way about [his] father because [his] father sleeps all of the time.”71 Ryan’s depiction of his father’s behavior troubled Dr.

Schechter in terms of parental control and involvement. Richard Whitehead didn’t appear to be active in the family, nor did he appear to be a controlling or authoritative presence.

Mary Beth Whitehead’s control over the family extended beyond the disciplinary aspects of parenthood to include everyday decision-making. Again, the emphasis during trial testimony was not that Mary Beth controlled the Whitehead household, but that

71 Testimony of Dr. Schechter, February 23, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 139. 175

Richard Whitehead allowed her to and assumed the submissive role in their relationship.

Dr. Schechter even described how Mary Beth chose and laid out Richard Whitehead’s clothes for him each morning. Dr. Schechter explained, “[a]nd, this continues on despite the fact that, as Mr. Whitehead said, he’s not color blind but that’s part of what is her function within the family.”72 In this manner, Mary Beth treated Richard Whitehead in the same way she treated her children. She provided Richard with a motherly presence and figure in the household. Furthermore, it provided another example of how Richard

Whitehead was the submissive partner in the marriage.

The belief by the psychological experts that Richard Whitehead was passive and nonassertive in his relationship with Mary Beth and the children was exemplified in his interactions with the psychiatrists. Richard Whitehead arrived late for one of the meetings with the psychologists prior to the start of the trial. Given the Whitehead’s financial position and Richard Whitehead’s employment, he often had to work long hours. Moreover, he often needed to fill in for late or absent coworkers. However,

Richard Whitehead did not provide this explanation. Instead, Dr. Schechter noted that it was Mary Beth Whitehead who spoke when Richard was questioned. In referencing this encounter, Dr. Schechter stated,

[t]he explanation had been that somebody had not appeared at Mr. Whitehead’s work and he had to fill somebody else’s job. And, this explanation about work didn’t come from him, it came from Mrs. Whitehead. But, there was a comfortableness in the interaction between them and a general deferring on Mr. Whitehead’s part to what it was that Mrs. Whitehead was talking about.73

72 Testimony of Dr. Schechter, February 23, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 160.

176

To reiterate, Dr. Schechter’s description of Richard Whitehead was heavily influenced by the perception that Mary Beth Whitehead largely controlled him. In Dr. Schechter’s example, Richard could not even describe the circumstances of his tardiness to the psychologists without Mary Beth’s intervention.

Indeed, the view that Richard Whitehead was the submissive party in the

Whitehead’s relationship controlled a significant portion of the expert witness testimony concerning Whitehead. His submissive nature impacted not only his relationship with his wife, but as demonstrated above, it also characterized his interactions with his children.

Furthermore, the psychiatrists believed that it impacted the Whitehead’s decision-making on issues outside of family dynamics. Dr. Schechter testified that Mary Beth’s assertiveness in the relationship controlled the couple’s thinking about the future and the family’s finances. Specifically concerning the litigation and its financial impact, Mary

Beth informed the psychologists that Richard Whitehead would support doing whatever was financially necessary regarding the litigation. Dr. Schechter reported, Mrs.

Whitehead

[i]ndicated that she felt that the relationship with her husband was good and that whereas there were some difficulties, she said, at the beginning of the marriage, particularly financial, that she felt things were going along well; and, that even though the litigation currently involved in them might cost them considerably, that she felt that they would be willing to pay for the rest of their lives and that her husband was in agreement with that statement.74

73 Testimony of Dr. Schechter, February 23, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 141.

74 Ibid., 146. 177

In this instance, Richard Whitehead was viewed as allowing Mary Beth to control and dictate the family’s finances. This aspect of his passive nature was particularly troublesome to many of the expert witnesses as it demonstrated a certain degree of irresponsibility on the part of Richard. As many of the psychologists observed, the financial impact of the litigation could be disastrous for the Whiteheads. Richard’s inability to assert himself and provide a counterbalance to Mary Beth regarding such an important issue demonstrated a very acquiescent role in the relationship.

Dr. Schechter also analyzed Richard Whitehead’s interactions and relationship with Baby M. As discussed in M is for Motherhood, Dr. Schechter would become infamous in the journalistic descriptions of the trial for his characterization of Mary Beth playing pattycake with Baby M. Dr. Schechter also observed Richard Whitehead’s attempts to play games with the child. In particular, Dr. Schechter described Richard

Whitehead playing airplane and pattycake. Dr. Schechter said,

Mr. Whitehead, when he was lying on his back, picked the baby up, the baby was playing airplane and in the airplane kind of position the baby would be able to clap his hands and Mr. Whitehead said, you’re playing pattycake. And there was, again, an interpretation of the validity of a behavior which connects, again, in terms of causality, pieces of behavior and language with them, a child’s beginning to understand.”75

As with Mary Beth Whitehead, Dr. Schechter noted some reservations with Richard

Whitehead’s interactions with Baby M. Specifically, he was concerned that Whitehead was not properly connecting the child’s behavior with her actions. This connection and relationship to causality was important to Dr. Schechter. He noted, “[t]he significance to

75 Testimony of Dr. Schechter, February 23, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 160. 178 me is that parents are interpreters of reality, parents are the connecting link between behaviors and language formation.”76 As such, Richard Whitehead was assisting Baby M in connecting her actions with desired consequences. In other words, Dr. Schechter wanted to see Richard encouraging and reinforcing the desired behavior. Instead,

Whitehead appeared to be adopting Mary Beth’s interpretation of the child’s conduct, even when Dr. Schechter believed there was little evidence to support it.

Another aspect of Richard Whitehead’s aptitude for fatherhood, as well as his overall masculinity, that was closely examined at trial was his problem with alcohol.

Richard Whitehead had difficulty controlling his drinking throughout the Whitehead’s marriage. However, Rick was not considered by the psychological experts to be diagnosable, at the time of the trial, as an alcoholic. Dr. Schechter explained,

[t]hat Mr. Whitehead may represent an alcoholic as a diagnosis, substance abuser, alcoholism, chronic, how we might list it from the DSM III, that that’s certainly possible, he would meet the criteria for inclusion under that, that he was not currently, during the time of my examination alcoholic, I would have to say I saw no evidences of it at all.77

As this quotation illustrates, Dr. Schechter believed that Richard Whitehead may have demonstrated characteristics of alcoholism at different points in his past. Yet, he didn’t consider Richard Whitehead to be an alcoholic while the litigation was ongoing.

This observation and characterization that Richard Whitehead did not have an ongoing problem with alcohol was supported by Dr. Schechter’s interview of Mary Beth

76 Testimony of Dr. Schechter, February 23, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 160.

77 Testimony of Dr. Schechter, February 24, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 53 - 54. 179

Whitehead. Mary Beth Whitehead explained that Richard’s substance abuse was not continuing. Dr. Schechter testified, “[s]he told me and then he, in effect, reiterated very similarly that the drinking was not a problem currently, that it had been a problem to some degree, a minor degree he felt in the past, represented by, I believe, two DWI tickets in ’72 and ’78.”78 In short, Richard Whitehead’s inability to control his drinking was an aspect of his past and not recurring. When attorneys pressed Dr. Schechter on this characterization, he stated, “I could see nothing that represented something similar to the alcoholics that I see at the Veteran’s Hospital on a weekly basis.”79 This reference to veteran’s hospitals reflected Dr. Schechter’s medical practice. He often worked with veterans in his psychiatric practice. It also reflected the connection between Richard

Whitehead and combat veterans. Dr. Schechter’s observation suggested that he did not see Richard Whitehead’s behavior as similar to other combat veterans who experienced substance abuse problems and PTSD.

Moreover, Dr. Schechter’s characterization of Richard Whitehead’s alcohol problem was consistent among the various psychologists and psychiatrists that examined the family. Dr. Brodzinsky, likewise, noted that he did not believe that there was any indication that Richard Whitehead’s substance abuse was an ongoing problem. He said,

“I didn’t see any evidence from [the] self report[ing] in my evaluation with him to indicate that there was any ongoing problem with alcohol. I’m not an expert in alcohol or

78 Testimony of Dr. Schechter, February 24, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 52.

79 Ibid., 53. 180 substance abuse so that it might have to be a little more blatant for me to pick up but I saw no evidence of it.”80 In many ways, Dr. Brodzinsky’s admission that he was not a substance abuse expert was irrelevant. Since his overall impression of Richard

Whitehead, as a nonviolent drunk who’s past alcohol problem wasn’t ongoing, aligned with all of the other experts at trial it painted a consistent picture of Richard Whitehead.

Part of Dr. Schechter’s belief was premised on Richard Whitehead’s own characterization of his drinking, as well as the description of his past substance abuse by

Mary Beth. Of course, the Whiteheads had every reason to attempt to conceal any ongoing problems with alcohol Richard Whitehead may have had. Nevertheless, Dr.

Schechter’s overall observations seemed to support the Whitehead’s statements. He also described Richard Whitehead as a nonviolent drunk. He stated,

[m]aybe just a quick example of that, if I may and actually I’m quoting now from a report by Dr. Klein who talked about Mr. Whitehead’s alcoholism and that he was a quiet drunk, he was not a violent drunk. My professor of psychiatry always said the super ego or conscious is that part of the personality which is soluble in alcohol in the same kind of way stresses will bring forth those elements which are inherently internal and may come out under the circumstances of specific stress periods.81

In this manner, Dr. Schechter was reinforcing his interpretations of Richard Whitehead’s personality. According to Dr. Schechter, if Richard Whitehead possessed tendencies of violence or aggressiveness, these tendencies would have been more visible during periods

80 Testimony of Dr. Brodzinsky, February 20, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 134.

81 Testimony of Dr. Schechter, February 24, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 33. 181 of intoxication. Moreover, Richard Whitehead’s continued docile and passive nature during periods of intoxication demonstrated his overall submissive personality.

During the Baby M trial, much was made and discussed about the individual personalities and intelligence of each parent involved in the litigation. The analysis of the personalities and emotional state of William and Elizabeth Stern and Richard and

Mary Beth Whitehead was fundamental to the determination of the ultimate custody decision. However, a significant discussion about the differences between men and women, in relation to emotional responses, was also highlighted and debated by the attorneys and the guardian ad litem. Accordingly, Lorraine Abraham called Dr. Phyllis

Silverman to testify about how men and women behaved differently. Dr. Silverman was a trained psychiatric social worker, earning her doctorate from Brandeis University. At the time of the trial, Dr. Silverman was a professor at Massachusetts General Hospital

Institute of Health Professions. She was also a visiting scholar at Wellesley College. Her primary area of expertise was considered to be bereavement. In describing her specialty, she testified,

[w]ell, I’m particularly interested in the whole area of human behavior but on specialty I suspect my specialty is in the area of the psychology of women and with particular reference to the studies of loss and bereavement and how that differs for both men and women, differs between men and women.82

As such, Dr. Silverman was asked to testify during the Baby M litigation on the differences between the men and women involved in the dispute. While her testimony

82 Testimony of Dr. Phyllis Rolme Silverman, February 25, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 65. 182 was often focused on the differences between men and women in relation to loss, she also discussed differences between the sexes more broadly.

A large portion of Dr. Silverman’s testimony concerning the distinctions between men and women centered on the degree of autonomy and/or dependence needed by each gender. Overall, Dr. Silverman described men as being more autonomous than women.

In addition, Dr. Silverman suggested that men’s identity was often independent of their relationships. She argued, “[t]he focus on autonomy in a man’s development often means that they feel more separate from others and they are not as enmeshed in the relationships and they don’t look to relationships for their identity for the sense of who they are in the same way that a woman does.”83 Under Dr. Silverman’s analysis, this partially explained Mary Beth Whitehead’s behavior. In the context of her testimony, relationships were defined broadly and encompassed marriages, as well as friendships and parental relationships. To Dr. Silverman, this helped explain Mary Beth Whitehead’s behavior. Her identity was shaped by her relationships with her husband and her children. Dr. Silverman continued,

[a]nd, women, on the other hand, seem to be much more invested in the relationship. And, their sense of who they are seems to be much more profoundly disrupted by that loss of the relationship. So that, in a sense, they are doubly bereft not only in the sense of the person that they lost but their very sense of identity.84

83 Testimony of Dr. Phyllis Rolme Silverman, February 25, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 86.

84 Ibid., 85. 183

In the context of the Baby M litigation, once the Sterns took Baby M home, Mary Beth not only felt the loss of the child, but also experienced a sense of loss in relation to her identity as mother and caregiver.

Men, on the other hand, experienced relationships very differently. Dr. Silverman testified that men certainly struggle with the emotional pain of a loss; however, they don’t tend to also have an accompanied sense of loss to their identity. As Dr. Silverman explained, “[a] man is, as I said, more likely to focus on the tasks, less likely to process his feelings. His sense of self is much less likely to be imbedded in that relationship. So, he doesn’t lose that sense of who he is.”85 This explained the difference in the reactions by Bill Stern and Mary Beth Whitehead. As mentioned above, Bill Stern suggested that he was much more concerned with the continuing litigation’s impact on the child. As such, he would be willing to abide by the court’s determination. Yet, Mary Beth

Whitehead stated that she would continue to fight regardless of the cost. According to

Dr. Silverman, this difference was partially due to gender and the way men and women process loss.

In addition, Dr. Silverman testified during trial regarding the differences between men and women in overall emotional response. She explained that in her experience and research, men tended to be resistant to crying. She explained that men often implied that they did not confront or examine their feelings. She said,

[s]ome of the older men have been more socialized, in my data, to talk about the fact that they can’t cry, they can’t process feelings, they have to behave as if it’s all right. And younger men are fortunately not being so badly

85 Testimony of Dr. Phyllis Rolme Silverman, February 25, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 103. 184

scarred, if you wanted to put a value judgment on that, on being able to be more forthright about their feelings and attitudes.86

The above quotation illustrates an important component of Dr. Silverman’s testimony.

She described for the Court the prevailing socialization regarding the appropriate emotional responses by gender. As such, when compared to the descriptions of Bill

Stern, it is clear that he didn’t exhibit many of the behaviors that Dr. Silverman associated with men’s handling of emotions. Bill Stern did very much associate Baby M with his identity. This is partly a result of Bill Stern’s history and the loss of almost his entire family. Moreover, Bill Stern was described often as being emotional and crying.

Such outward displays of emotion were contrary to Dr. Silverman’s description of typical male responses to loss and emotional pain.

Finally, Dr. Silverman addressed the question of the relationship dynamic between Richard and Mary Beth Whitehead. As other psychiatrists testified, Dr.

Silverman also viewed Mary Beth Whitehead as the dominant spouse in many aspects of their relationship. However, unlike the other psychiatrists, Dr. Silverman was more measured and nuanced in her description. She believed that Richard Whitehead was the dominant spouse in some areas of the Whitehead’s marriage. When asked if she could identify a servient and dominant spouse, Dr. Silverman stated, “[n]ot without looking at the context. I think that in some parts of their lives she’s (Mary Beth) clearly the dominant person and in other parts of their lives, I think he is, as far as I could make

86 Testimony of Dr. Phyllis Rolme Silverman, February 25, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 104. 185 out.”87 In her assessment, Dr. Silverman believed that Richard Whitehead was the more dominant spouse in terms of the couple’s finances. She continued, “I think in terms of his earning a living, supporting his family economically.”88 As this statement illustrates,

Dr. Silverman based her assessment largely on Richard Whitehead’s employment and the fact that Mary Beth Whitehead was a homemaker. Moreover, Dr. Silverman’s impression of the dominant spouse differed slightly from many of the other expert witnesses. The other psychiatrists viewed the economic insecurity surrounding the

Whitehead home, as well as Mary Beth Whitehead’s temporary employment, as indicative of Richard Whitehead’s inability to be the dominant spouse even in the financial aspects of the marriage.

As the above analysis indicates, the expert witnesses testifying at the Baby M trial extensively discussed the men associated with the litigation. Fatherhood, and the ability of either Bill Stern or Richard Whitehead to be a “fit” father, was a theme explored throughout the trial. Significantly, the ability of both men to be viewed as the economic providers of the family was a crucial factor in investigating the maturity and responsibility of both men. Moreover, Bill Stern’s and Richard Whitehead’s relationships with their spouses occupied considerable attention of the expert witnesses.

The descriptions of passive, acquiescent men contributed to an overall picture developed

87 Testimony of Dr. Phyllis Rolme Silverman, February 25, 1987, In the Matter of Baby M, 217 N.J. Super. 313 (1987), 214 - 215.

88 Ibid., 215. 186 during trial of women dominating their marriages. Consequently, these portrayals were discussed in the media coverage discussing the Baby M trial.

Fatherhood in the News

During and immediately after the Baby M trial, many commentators and journalists asked why the case turned out the way it did. Many looked to the trial itself and to the testimony of the expert witnesses. As mentioned in M is for Motherhood, the testimony of the psychiatrists concerning Mary Beth Whitehead figured prominently in the conclusions of several writers. The portrayal of Mary Beth Whitehead as irrational, overly emotional and dependent on motherhood seemed damning in retrospect.

Accordingly, writers compared the treatment of Mary Beth to the depiction of the men, leading some to conclude that the standard utilized by the experts and the courts were derived from patriarchal assumptions. Phyllis Chesler wrote,

[w]hy? Because the Court essentially views parental rights (which they have restored to Mary Beth Whitehead) as paternal rights. Men and women are equal as long as women are identical to men, and can be treate[d] like men. The judicial model for a human being – rational, parental or otherwise, is still a man and not a woman.89

In Phyllis Chesler’s opinion, the testimony, at trial, suggested that men and women were treated equally as long as women behaved like men. In this regard, Mary Beth’s behavior was seen as irrational and emotional, as opposed to William Stern’s measured and reasoned approach. According to Chesler, to the extent that Mary Beth Whitehead could

89 Phyllis Chesler, “Baby M: NJ Outlaws Surrogacy,” Off Our Backs: A Women’s Newsjournal 18, no. 3 (1988). 187 have behaved similar to Bill Stern (rational and logical) she could be considered for the custody of Baby M.

However, other commentators looked towards more long-standing principles in family law to explain the outcome of the case. As Franklin Zimring suggested, the difficulties in determining custody with a surrogate parenting agreement were in some ways inconsequential. In Zimring’s analysis, the result of the case was a natural progression of the events rather than the unique circumstances that gave rise to Baby M.

In other words, Baby M’s future was ultimately determined by the time she spent with the

Sterns, rather than the psychological profiles of the parents or the biological differences between men and women. Zimring argued,

[t]hese problems are not unique to the surrogate-parent arrangement. In Baby M, the attachment of William and Elizabeth Stern to this child after months of living with her would have been just as strong, and worthy of the same legal recognition, even if William Stern were not the biological father.90

As this passage illustrates, Zimring is contending that the time the Sterns spent with Baby

M was as formative in considering a paternal relationship as the biological connection between William Stern and the child.

Zimring continues by defending William Stern’s rights to the custody of Baby M.

As Zimring believes the fact that the child has lived with the Sterns is determinative. If

Baby M had never been a part of the Stern’s home, Zimring argued that courts should actually reject those cases. Zimring wrote, “[t]he only time biological paternity might

90 Franklin Zimring, “Beyond Solomon: The “Tragic Choice” Cases,” Los Angeles Times, March 16, 1987. 188 make a difference is when the natural mother refuses ever to give up the child and the father sues to obtain custody without any history of living with the child as a parent.

Courts would and should reject this contractual claim.”91 Zimring continues, “[b]ut once an adoptive family has lived with and loved a particular child, claims of both the father and the new mother are every bit as strong as those of the birth mother. This is the problem in Baby M. Here even Solomonic strategies will fail.”92 In this analysis,

Zimring compares surrogate motherhood agreements to all cases involving adoptive families. Accordingly, Zimring suggests that a fundamental factor that should be considered by courts is where the child has resided in the past.

Some journalists agreed with Zimring’s analysis. However, the relationship between the time spent living with the child and the ability to provide a nice upper- middle-class life was blurred. For example, Robert Hanley also noted the time Baby M spent with the Sterns. His description included a number of activities Baby M enjoyed with the Sterns. He suggested,

[f]or six months, the Sterns who have temporary custody, have raised the baby at their three-bedroom colonial home in Tenefly, a suburb of upper- middle-class professionals 15 miles from Manhattan. They have taken the infant to museums; model train shows; supermarkets; department stores; to see a Santa at Christmas, and on visits to friends in Manhattan.93

91 Franklin Zimring, “Beyond Solomon: The “Tragic Choice” Cases,” Los Angeles Times, March 16, 1987.

92 Ibid.

93 Robert Hanley, “Baby M Case Etches a Study in Contrasts: Different Social Classes and Family Relations,” New York Times, February 17, 1987. 189

As this passage illustrates, Hanley’s description of the time Baby M spent with the Sterns is centered on the lifestyle they could provide. Nevertheless, a large component of his piece is that the time spent with the Sterns should also be considered fundamental to

Baby M’s placement. Moreover, the issues emphasized by both Chesler and Zimring exemplify the Baby M case’s connection to the larger debate over father rights in the

United States. At the heart of the discussion is the question, what factors should be considered in determining custody.

The background and personality differences between Bill Stern and Richard

Whitehead were also highlighted and emphasized by journalists covering the case.

Richard Whitehead’s lack of higher education and his working-class employment were often stressed in the news coverage. Robert Hanley described Richard Whitehead in the

New York Times in the following manner,

[a] high school graduate, he became a truck driver for construction and sanitation companies, after having served 13 months on combat duty in the Mekong Delta in Vietnam. They met about a year before their marriage, after Mr. Whitehead had been hit by a car and blinded in the left eye.94

Again, as this quote illustrates, Richard Whitehead’s status as a working-class man, with limited employable skills, was a focal point for journalists. Charles Krauthammer also discussed the educational and employment differences between Bill Stern and Richard

Whitehead. He wrote, “Mrs. Whitehead did not lose Baby M to Mr. Stern because he is a

94 Robert Hanley, “Baby M Case Etches a Study in Contrasts: Different Social Classes and Family Relations,” New York Times, February 17, 1987. 190 man and she is a woman. She lost because Mr. Stern is a biochemist and Mr. Whitehead is a garbage collector.”95

Furthermore, the discussion of Whitehead’s employment often took the form of whether or not he was capable of providing financially for his family. His difficulty obtaining and holding jobs was complicated by his documented substance abuse problem.

As Robert Hanley wrote,

[i]n late 1978, Mr. Whitehead fell asleep at the wheel after drinking and hit three poles. He lost his drivers license and his truck-driving job and entered Alcoholics Anonymous for a year. To help support the family, Mrs. Whitehead took a job as a dancer and bartender in her sister Beverly’s bar for a few months.96

Hanley’s coverage of the trial emphasized the differences between the Sterns and the

Whiteheads in terms of social class and economic well-being. However, he also portrayed Richard Whitehead as struggling to support his family. His difficulty with alcohol forced Mary Beth to take on jobs outside the home. As Hanley noted, “[o]ver the course of their marriage, she had earned extra money cleaning houses, running coat- check counters in restaurants and selling ski equipment at Christmas in department stores.”97 In a home depicted at trial with clearly demarcated roles based on gender, this was a serious shortcoming of Richard Whitehead. The expert witnesses, and even the

Whiteheads, had described the roles of Mary Beth and Richard Whitehead in clear terms.

95 Charles Krauthammer, A Triumph of Feminist Ideology, The Washington Post, April 3, 1987.

96 Robert Hanley, “Baby M Case Etches a Study in Contrasts: Different Social Classes and Family Relations,” New York Times, February 17, 1987.

97 Ibid. 191

Mary Beth took care of the home and children, while Richard was to earn the income to support the family. Richard’s inability to consistently hold employment demonstrated his inability to perform his responsibilities.

In addition, newspapers and writers discussed the trial expert’s depiction of

Richard Whitehead as the weaker and more passive spouse in the marriage. The consensus among the expert witnesses was that Mary Beth Whitehead dominated the marriage with her assertive personality. Robert Hanley also discussed this portrayal in his article. He stated, “[a]s to her husband, the guardian’s experts found him deferential to his wife’s wishes. They also found Mr. Whitehead forthright, articulate, genuine and

“down to earth.”98 In other words, combined with Richard Whitehead’s difficulty in providing for his family, his masculinity was further questioned when journalists reiterated trial experts testimony regarding his place in the marriage. This depiction of a weaker and passive spouse was further reinforced when the New York Times reported that Mary Beth Whitehead was pregnant with another man’s baby. The New York Times wrote, “Mary Beth Whitehead, the New Jersey surrogate mother who lost custody of

Baby M after a bitter court fight, has become pregnant by a man other than her estranged husband, the court-appointed lawyer for Baby M said today.”99 Combined, these events illustrated an overall image of Richard Whitehead as not very masculine in terms of fulfilling the roles he was expected.

98 Robert Hanley, “Baby M Case Etches a Study in Contrasts: Different Social Classes and Family Relations,” New York Times, February 17, 1987.

99 “Baby M’s Mother is Pregnant Out of Wedlock, Lawyer Says,” New York Times, November 1, 1987. 192

Unsurprisingly, Bill Stern is portrayed quite differently in the news coverage of the Baby M trial. Bill Stern is described in a positive light. He worked hard to provide for his wife while she attended medical school. While they experienced harsh financial times, Bill Stern never failed to provide a financially secure home for Betsy. Robert

Hanley describes, “[d]uring the seven years that Elizabeth Stern pursued her medical degree . . . Mr. Stern worked to help finance it.”100 This description contrasts with the way Hanley described Richard Whitehead. While the Sterns experienced difficult times,

Bill Stern was able to work to finance Betsy’s higher education. In short, Bill Stern was a provider.

Bill Stern’s desire to have a genetically related child was another quality of the

Baby M trial emphasized by the press. While Stern was portrayed as a caring and gentle man, some questioned and criticized his need to have biologically related children. These questions often arose in connection to the overall number of children without homes still available for adoption in the United States. Ann Taylor Fleming observed,

[t]his is a new, hybrid relationship that’s come unglued, one part of which is a man who deeply wanted to be a father, to father his own child and raise that child, a man who has no other blood relatives left on earth. Leaving the surrogacy issue aside for a moment, is something wrong with that impulse? I’ve heard William Stern accused of genetic narcissism, of procreative machismo. But there is nothing macho about William Stern; in fact, quite the contrary. He seems to be the tenderest of the protagonists in this story, a man who can cry quite easily at the idea of losing his daughter.101

100 Robert Hanley, “Baby M Case Etches a Study in Contrasts: Different Social Classes and Family Relations,” New York Times, February 17, 1987.

101 Ann Taylor Fleming, “Our Fascination with Baby M: At Stake in the Trial is Our Sense of Ourselves, Our Concept of Motherhood, of Parenthood,” New York Times, March 29, 1987. 193

Again, Bill Stern’s background and history became a prominent factor in these discussions. His desire to have genetically related children was often associated with losing his extended family in the holocaust. Moreover, Fleming’s passage illustrates that never far removed from any discussion of Bill Stern was the characterization of passivity.

When suggested that Stern was practicing procreative machismo, Fleming counters that there is nothing “macho” about William Stern.

Interestingly, journalists also observed the difference in the amount of attention and coverage the concept of motherhood received by the news media during trial, compared to the lack of attention received by the fathers. As Ann Taylor Fleming wrote in the New York Times, “[a]t last we come to the father. In all the endless talk about the

Baby M case, William Stern is the forgotten figure, as if the battle for the baby were but a custody catfight between two women, as if he were nothing more than a sperm donor.”102

Indeed, Bill Stern and Richard Whitehead were the “forgotten figures” of the Baby M trial – at least in terms of news coverage.

Moreover, as Ann Taylor Fleming observed, Bill Stern was treated similar to a mere sperm donor. In this way, the focus of the trial mirrored Mary Beth Whitehead’s continued description of Bill Stern as “Mr. Sperm.” Fleming continued, “Mary Beth

Whitehead, in fact, continues to dismiss him as such, calling him ‘Mr. Sperm.’ It is her ultimate slur. She even had the baby baptized at one point and listed Richard Whitehead as the father.”103 In many ways, the differences in media coverage could be attributed to

102 Ann Taylor Fleming, “Our Fascination with Baby M: At Stake in the Trial is Our Sense of Ourselves, Our Concept of Motherhood, of Parenthood,” New York Times, March 29, 1987.

194 this distinction in how William Stern and Mary Beth Whitehead were viewed. For example, in comments following the trial, Mary Beth Whitehead’s lawyer described the difference between the two in terms of Mary Beth’s pregnancy. Mary Beth carried the child for nine months, whereas, Bill Stern simply provided the sperm.

In conclusion, the Baby M litigation reflected ongoing discussions concerning fatherhood and masculinity in modern America. A once dominant conceptualization of a family, defined by a male breadwinner, persisted during the Baby M trial. While it cannot be argued that single-income, male breadwinner households ever constituted a monolithic presence in American society, the ideal of family life centering on a male economic provider pervaded the immediate postwar period. Nevertheless, challenges to this conceptualization of fatherhood were growing in acceptance. The economic realities of modern family life necessitated a growing need for dual-income households.

Moreover, feminist challenges to women’s roles in the family and economy helped facilitate a growing shift in the construction of family life and fatherhood in the United

States. The differences between the Sterns and the Whiteheads exemplified these distinctions. The Sterns were emblematic of modern families. Both William and

Elizabeth Stern worked. Moreover, William Stern expected to be involved in the caregiving and nurturing aspects of childcare. The Whiteheads, on the other hand, followed a single, male breadwinner model. Richard Whitehead was to provide for the family’s economic security. Mary Beth was to raise the children and care for the home.

103 Ann Taylor Fleming, “Our Fascination with Baby M: At Stake in the Trial is Our Sense of Ourselves, Our Concept of Motherhood, of Parenthood,” New York Times, March 29, 1987. 195

At the core of the Baby M case is the divergence between these two competing family models.

Moreover, the breadwinning or provider aspect of fatherhood was discussed, at length, during the Baby M trial. Utilizing their ability to economically provide for their families, both William Stern and Richard Whitehead’s aptitude to be sufficient fathers were assessed. Attorneys and experts discussed Bill Stern’s support of Betsy while she attended medical school. Moreover, Stern’s relatively high income and secure job was viewed favorably in terms of custody and fatherhood. In short, in terms of economically providing for his family, Bill Stern was considered responsible and masculine.

Conversely, Richard Whitehead was perceived as unable to provide financial or economic security for his family. He had difficulty holding jobs. His substance abuse would often complicate his efforts at securing employment. Moreover, his pay often barely made ends meet. Moreover, at multiple points in their marriage, Mary Beth was forced to work to provide for the family. Using these considerations, experts and attorney’s characterized Richard Whitehead as “less of a father” due to his inability to be a stable breadwinner.

In addition, the Baby M trial highlighted the relationship roles of both men.

Under this analysis, both William Stern and Richard Whitehead were portrayed as passive men. They were described as acquiescent, dependent upon their stronger and more assertive wives. In Bill Stern’s case, experts suggested that he was timid of childrearing, and needed to rely on his wife for support. Moreover, he was unable to be confrontational and was prone to being manipulated by Mary Beth Whitehead’s

196 emotions. Richard Whitehead was labeled as weak and passive. Mary Beth Whitehead controlled the children and the rules of the household. Moreover, Mary Beth made the financial decisions for the home. In both cases, the men at the center of the Baby M case were servient to their dominant spouses.

197

Chapter 4: M is for Modernity

“What man has joined, nature is powerless to put asunder.” Aldous Huxley, Brave New World

“The earliest ethical considerations were, ‘Should we tamper with Mother Nature’s way of reproducing?’ . . . Now . . . the question has shifted to how to deal with the situations that seem like a chapter out of Aldous Huxley’s “Brave New World.”1 Dr. Edward Wallach

In 1932, Aldous Huxley published an innovative dystopian novel foretelling a vision of the future accounting for recent developments in science and medicine. Huxley was grappling with wide scale, disruptive changes that had altered human society. The

Industrial Revolution had remade the social and economic bonds that united human beings. Modernization brought with it changes to the production of goods and introduced new technologies, such as automobiles, radios, telephones and movies accompanied with audio. Huxley viewed these changes negatively – fearing their effects on society.2

1 Sally Squires, “Whose Baby Is It, Anyway?: Surrogates, Donors and Petri Dishes Are All in the Family,” The Washington Post, April 12, 1988.

2 Many scholars have studied the work of Aldous Huxley. Regarding Huxley’s dissatisfaction with contemporary society, Robert Baker has written: “Like so many of his contemporaries Huxley regarded English—or for that matter, European—culture as having entered a period of decline. His satirical novels are animated by a sense of crisis, social disintegration, and imminent collapse. Deploying an imagery of regression, degeneracy, and inward decay, his work, like that of D.H. Lawrence and Evelyn Waugh, repudiated modern theories of historical progress. see Robert S. Baker, Brave New World: History, Science, and Dystopia (Boston: Twayne Publishers, 1990) 198

Huxley’s novel, Brave New World, grappled with the implications of technological innovation on society, and alluded to the challenges modernity would herald.

A little over fifty years following Brave New World’s publication, journalists and commentators would cite Huxley’s work when discussing the case of Baby M. The dystopian vision that Huxley foretold appeared to be materializing before their very eyes.

For decades, scientists had been working on advances to reproductive technology and fertility treatment that seemed to mirror those forecasted by Huxley. Those technologies raised questions of morality and ethics that scholars, journalists, lawyers and the public would debate. Even Huxley’s 1932 novel correctly guessed some of the subjects that would be contested when advances in technology overlapped with human reproduction.

Just as Huxley suggested, Americans would question the implications of reproductive technologies on family formation. Similar to the novel Brave New World, Americans would wonder about the consequences if reproduction were made possible without sexual intercourse. Would it be detached from human relationships? Would sexual activity simply become recreational? What would the resulting family look like when reproduction was no longer associated with human relationships, but instead achieved in a lab?

This chapter explores American society’s struggle with the implications of modernity in the context of reproductive technologies and biomedical research. While the implications of modernity can shape society in numerous ways, this chapter specifically traces the issues of eugenics and the development of more robust principles of informed consent through the growth of bioethical guidelines shaping surrogate motherhood contracts and the modern fertility industry. While these issues do not find

199 their genesis in the Baby M litigation, the Baby M case illustrates how these concerns manifested themselves in the larger debate over the use of reproductive technologies in modern American society.

Finding broad acceptance during the progressive period, eugenics in the United

States was utilized to explain existing variances between individuals of different racial, ethnic and/or economic backgrounds. To those that subscribed to eugenics principles, individuals who found greater economic success owed this achievement to superior genetic material. Conversely, weak genes limited and constrained individuals unable to achieve greater economic prosperity. An individual’s economic station in life, in this way, was linked to an individual’s intelligence and inherited from his/her parents. Such a view of the economic structure of society led eugenics proponents to conclude that humanity could accomplish more, be more efficient and create a better society if only those with superior genetic backgrounds were allowed to reproduce. Accordingly, eugenic advocates split individuals into those who were deemed “fit” and those who were

“unfit.”

The progressive period witnessed the expression of a far-reaching commitment to eugenics across American society. One such expression of the eugenic beliefs pervading the period may be found in the adoption of the Immigration Act of 1924. A reaction to large influxes of immigrants pouring into the United States during the end of the nineteenth century, the Immigration Act of 1924 created quotas limiting the total number of immigrants permitted entry from specified regions. Partially aimed at reducing the number of newly arriving eastern and southern European immigrants, the law was influenced by eugenic beliefs in the genetic superiority of “old stock” Europeans. In

200 addition to immigration restrictions, the progressive era ushered in the popularity of

“better baby” contests. Better baby contests emerged at state fairs with the purpose of evaluating contestants using standardized, scientific criteria to determine the “best” or most “fit” baby. Instead of receiving points for specific attributes, babies were deducted points for imperfections or deviations from the drafted criteria. Better baby contests contributed to a culture that was not only accepting of eugenic principles, but also rapidly attempting to adapt eugenic notions of efficiency and standardization to a wide array of social problems and issues.

One way the ideas and concepts underpinning the better baby contests influenced state laws was through the embracing of compulsory sterilization. In 1907, Indiana would be the first state to pass compulsory sterilization legislation, but it would not be the last. A number of states soon followed, implementing laws and regulations requiring individuals with low IQs or convicted criminals to be sterilized. While it would be unfair to characterize the practice of compulsory sterilization as prolific or routine, it would eventually gain approval in 33 states. Some scholars have estimated that over 65,000 individuals were sterilized in the United States during its period of legal permissibility.

Such widespread acceptance can only be attributed to both cultural support and legal sanction. Legal endorsement came with the 1927 Supreme Court decision, Buck v. Bell.

The case of Buck v. Bell involved a mentally challenged adult, named Carrie

Buck, institutionalized in the state of Virginia. Carrie Buck was the daughter of a woman who was also considered intellectually challenged, and herself the mother of a child considered mentally disabled by Virginia. In the case, the state of Virginia argued that the welfare of society would be promoted if individuals similar to Buck were sterilized

201 and discharged from the institutions that cared for them. Arguing that the provision violated the Fourteenth Amendment of the United States Constitution, attorneys representing Carrie Buck challenged the Virginia law allowing the sterilization. The

Supreme Court of the United States disagreed permitting compulsory sterilizations by state governments. Writing for the Court, Justice Holmes wrote, “[i]t is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes . . . Three generations of imbeciles are enough.”3 Justice

Holmes pronouncement that a societal benefit occurred by the sterilization of “degenerate offspring” reflects the widespread acceptance of eugenic principles across the United

States in 1927.

The Supreme Court revisited the issue of compulsory sterilization in the 1942 case of Skinner v. Oklahoma. Before 1942, the state of Oklahoma permitted compulsory sterilization of habitual criminals who committed offenses involving moral turpitude. In

Skinner v. Oklahoma, Jack Skinner was previously convicted of armed robbery when he appeared before an Oklahoma court to answer charges associated with stealing a chicken.

He was convicted of theft and sentenced under the Oklahoma Habitual Criminal

Sterilization Act of 1935. Moreover, since Jack Skinner had been convicted of three offenses involving moral turpitude he was subsequently sentenced to be sterilized.

Skinner challenged the law as unconstitutional under the Fourteenth Amendment. While the Supreme Court did not overturn their decision in Buck v. Bell, the Court did modify

3 Buck v. Bell, 274 U.S. 200 (1927).

202 the much broader support for compulsory sterilization it previously granted. Justice

Douglas wrote for the Court, “[t]he power to sterilize, if exercised, may have subtle, far- reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear.”4 From the Court’s language, it is clear that in the intervening years, a significant erosion of an unwavering support for compulsory sterilization had occurred. Justice Douglas continued, “[a]ny experiment which the state conducts is to his irreparable injury. He is forever deprived of a basic liberty.”5 Such a statement is a stark contrast from the Justice Holmes assertion of, “[t]hree generations of imbeciles are enough.” These two quotations from Justice

Douglas foreshadow two fundamental themes to be discussed in greater detail in the pages below – the racial impact and eugenic effect of the new reproductive technologies and the need for informed consent for medical procedures involving fertility.

The Birth of Bioethics: Advances in Reproductive Technology and Medical Ethics

Many scholars have traced the genesis of modern bioethics to the conclusion of the Second World War. As historian David J. Rothman wrote, “[w]ell into the post-

World War II period, decisions at the bedside were the almost exclusive concern of the individual physician, even when they raised fundamental ethical or social issues.”6

However, as technological advances in medicine occurred, a growing belief in the need

4 Skinner v. Oklahoma, 316 U.S. 535 (1942).

5 Skinner v. Oklahoma, 316 U.S. 535 (1942); The Court in Skinner v. Oklahoma decided the case on equal protection grounds holding the statute’s exemptions of other felonies, such as embezzlement, were not punishable by sterilization, the Court found that like crimes were not treated similarly.

6 David Rothman, Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision Making (New York: Basic Books, 1992), 1. 203 for a broad set of guiding principles to govern medical decision-making became widely accepted. This belief was partially facilitated by the discovery of medical malfeasance by doctors, particularly Nazi doctors, during the War. After the allied powers liberated

Europe, the full extent of Nazi atrocities became evident. While the horrors of the final solution were seen in uncovering the mass graves and the discovery of the crematoriums, a more extensive investigation revealed a fuller accounting of Nazi activities across continental Europe.

These atrocities were not limited to the policies of mass extermination, but also included Nazi medical experiments obtained without authorization or consent. These experiments encompassed tests on the affects of high-altitude and freezing conditions on the human body, experiments on malaria, typhus, mustard gas experimentation, bone transplantation, seawater experiments, epidemic jaundice, sterilization, different effects of poison, and how incendiary bombs affect humans. While some of the categories of

Nazi experimentation could be justified by a connection with legitimate combat concerns of the German military, most of the experimental procedures demonstrated a program far removed from reasonable scientific advance. At the conclusion of the War, the doctors that designed and conducted the experiments were tried for crimes against humanity. In the opening statement at the doctors’ trail, prosecutor Telford Taylor said, “[t]hese experiments revealed nothing which civilized medicine can use. It was, indeed, ascertained that phenol or gasoline injected intravenously will kill a man inexpensively and within 60 seconds.”7 Taylor continued, “[t]his and a few other advances are all in the

7 Telford Taylor, “Opening Statement of the Prosecution” December 9, 1946 in George J. Annas and Michael A. Grodin, The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation (New York, Oxford University Press, 1992). 204 field of thanatology. There is no doubt that a number of these methods may be useful to criminals everywhere and there is no doubt that they may be useful to a criminal state.”

Telford’s statement reflects the growing sense of the power of medical science to do harm and great irreversible wrong. Moreover, it demonstrated a need for greater oversight of individuals conducting medical research.

At the conclusion of the trial, a final judgment was entered and the convicted defendants were sentenced to death. The judgment is more important, however, for what it contained than the sentence it imposed. The Nuremberg judgment contained ten distillations of concepts that the judges intended to lay the legal framework to guide medical research and ethics in the future. These ten points articulated by the judges would become the foundation of a conceptual regime aimed at reining in research involving human subjects in a rapidly changing, modern world. Researchers, today, would recognize the concepts articulated by the judges in courses and instructional materials written by institutional review boards (IRBs) at universities and research facilities across the United States. Some of the basic points discussed by the document are the essential nature of informed consent, the construction of the research project balanced against its potential benefit for human society, the design of the experiment to avoid unnecessary physical and mental pain, and the ability of the test subject to withdraw or terminate consent at any time.8

8 The ten points forming the foundation of modern bioethics are: “1. The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the subject matter involved as to enable him to make an understanding and enlightened decision . . . 2. The experiment should be such as to yield fruitful results for the food of society, unprocurable by other methods or means of study, and not random and unnecessary in nature. 3. 205

The principles outlined at the conclusion of the Nuremberg Trial, now known as

The Nuremberg Code, were eventually revised and transformed into guidance for medical research. This guidance would eventually be codified into U.S. Law. Originally provided by the United States federal government in “The Institutional Guide to DHEW

Policy on Protection of Human Subjects,” the instructions were directed at protecting the subjects of medical research from abuse. This document, first issued in 1971, expanded on previous drafts issued by the National Institutes of Health. In the document, the

Department of Health, Education, and Welfare described the purpose of the policy guidelines as: “[s]afeguarding the rights and welfare of human subjects involved in activities supported by grants or contracts from the Department of Health, Education, and

Welfare is the responsibility of the institution which receives or is accountable to the

DHEW for the funds awarded for the support of the activity.” In order to effectuate this policy, DHEW required that institutions create committees to review research conducted

The experiment should be so designed and based on the results of animal experimentation and knowledge of the natural history of the disease or other problem under study that the anticipated results will justify the performance of the experiment. 4. The experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury. 5. No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur; except, perhaps, in those experiments where the experimental physician also served as subjects. 6. The degree of risk to be taken should never exceed that determined by the humanitarian importance of the problem to be solved by the experiment. 7. Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death. 8. The experiment should be conducted only by scientifically qualified persons. The highest degree of skill and care should be required through all stages of the experiment of those who conduct or engage in the experiment. 9. During the course of the experiment the human subjects should be at liberty to bring the experiment to an end if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible. 10. During the course of the experiment the scientist in charge must be prepared to terminate the experiment at any stage, if he has probable cause to believe, in the exercise of good faith, superior skill and careful judgment required of him that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject.” Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10: Nuremberg, October 1946-1949, 2 vols. (Washington, D.C.: U.S. Government Printing Office, 1949), pp. 181 – 182. 206 on human subjects. These committees were to review the applications of researchers operating under their authority and utilizing funding provided by the federal government.

The Institutional Guide continues by stating,

[t]his review shall determine that the rights and welfare of the subjects involved are adequately protected, that the risks to an individual are outweighed by the potential benefits to him or by the importance of the knowledge to be gained, and that informed consent is to be obtained by methods that are adequate and appropriate.9

The notion of informed consent, as one of the cornerstones of modern bioethics, was a theme reinforced in subsequent documents produced by government bodies and professional organizations. Moreover, it would become important to the research and medical procedures associated with the new reproductive technologies that would rapidly develop in the postwar period.

In 1971, recognizing the need for additional guidance concerning biomedical research, the United States Congress created the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The commission was comprised of twelve members, hailing from a variety of backgrounds, including science, law and philosophy. The commission was charged with making further recommendations regarding potential ways to protect the subjects involved in human research and experimentation to the Secretary of Health, Education and Welfare. It took the commission approximately eight years to issue a comprehensive report, although it would release smaller more detailed reports in the years in between.

9 The Institutional Guide to DHEW Policy on Protection of Human Subjects. DHEW Publication No. NIH 72-102, December 1, 1971 (Washington, D.C.: U.S. Government Printing Office, 1971), 2-11.

207

In 1979, the commission published the Belmont Report. As the commission observed, “[t]he objective is to provide an analytical framework that will guide the resolution of ethical problems arising from research involving human subjects.”10

Accordingly, the commission determined that three principles guided ethical considerations involving human subjects: respect for persons, beneficence and justice. In describing the foundational principle that human subjects should be respected, the

Commission stated, “[r]espect for persons incorporates at least two ethical convictions: first, that individuals should be treated as autonomous agents, and second, that persons with diminished autonomy are entitled to protection.”11 As such, the Commission wanted to protect individual’s rights to self-determination, yet provide the ethical framework to ensure that those who were in compromising positions were not exploited. In elaborating on the concept of beneficence, the Commission wrote, “[i]n this document, beneficence is understood in a stronger sense, as an obligation. Two general rules have been formulated as complementary expressions of beneficent actions in this sense: (1) do not harm and (2) maximize possible benefits and minimize possible harms.”12 In this regard, the

Commission mirrored the Hippocratic Oath already guiding physicians. Yet, it also required the Commission to consider under what circumstances experimentation might be an overall benefit to mankind.

10 National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research (Washington, D.C.: U.S. Government Printing Office, 1979).

11 Ibid.

12 Ibid. 208

Finally, the Commission articulated an outline for considering the term “justice.”

This concept expanded further on the Commission’s interpretation of beneficence. The

Commission wrote, “[w]ho ought to receive the benefits of research and bear its burdens?”13 In considering this question, the Commission suggested,

[t]here are several widely accepted formulations of just ways to distribute burdens and benefits. Each formulation mentions some relevant property on the basis of which burdens and benefits should be distributed. These formulations are (1) to each person an equal share, (2) to each person according individual need, (3) to each person according to individual effort, (4) to each person according to societal contribution, and (5) to each person according to merit.14

This concept of justice might seem abstract in the context of the Baby M case or surrogacy more broadly. A stark example of the stakes involved in biomedical research might be found in the problems associated with organ transplantation. With limited resources, the system for allocation and selection of individuals receiving organs is strained. However, utilizing the same conceptual framework, it is possible to see how these formulations of justice could be applied to surrogacy in the decade that followed.

Who should bear the risk? Who should benefit from the technology and practice?

Should the benefits of surrogacy be reserved for only the wealthy?

As suggested above, the concept of informed consent greatly influenced the

Commission’s work. In applying the principles of respect for persons, beneficence and justice, the Commission sought to create a framework of ideas and concepts that could guide biomedical research. The Commission argued, “[r]espect for persons requires that

13 National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research (Washington, D.C.: U.S. Government Printing Office, 1979).

14 Ibid.

209 subjects, to the degree that they are capable, be given the opportunity to choose what shall or shall not happen to them. This opportunity is provided when adequate standards of informed consent are satisfied.”15 In other words, in order for human beings to have respect, self-determination must be protected. However, for any individual to give informed consent, the Commission wrote that individuals must be provided with appropriate information in order to make a knowledgeable decision. Moreover, an individual needed to be able to comprehend the information that had been presented to him or her.

The ability to comprehend, in particular, should require unique consideration.

The Commission argued, “[s]pecial provision may need to be made when comprehension is severely limited—for example, by conditions that might consider as incompetent (e.g. infants and young children, mentally disabled patients, the terminally ill and the comatose) should be considered on its own terms.”16 As such, individuals at risk of failing to comprehend the information provided needed further thought. Finally, the

Commission wrote that informed consent could only occur if the permission was obtained voluntarily. As the Commission stated, “[t]his element of informed consent requires conditions free of coercion and undue influence.”17 In other words, for an individual to give informed consent, s/he could not be pressured or compelled. These doctrines, as embodied by the overall principle of informed consent, were very much present in the

15 National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research (Washington, D.C.: U.S. Government Printing Office, 1979).

16 Ibid.

17 Ibid. 210 debate surrounding the Baby M litigation – and paid surrogacy more broadly. Was Mary

Beth Whitehead given adequate information regarding the procedure, as well as, information concerning her contractual obligations after the birth of the child? Can any woman give informed consent to relinquish her child before the child is even born? Do brokers take advantage of a woman’s lack of education to circumvent properly obtained informed consent? Journalists and commentators covering of the Baby M litigation advanced all these questions. At their heart, these questions suggest the struggle to come to terms with the implications of modern reproductive technologies as well as, reconcile paid surrogacy with the growing framework governing questions of bioethics.

As mentioned previously, prior to the publication of the Belmont Report, the

National Commission for the Protection of Human Subjects of Biomedical and

Behavioral Research released a few smaller reports addressing more discrete questions.

These reports would later be accumulated and combined into sections of the larger

Belmont Report. One such report is worth discussing in greater detail. In 1975, the

Commission issued its findings on fetal tissue research. Barely two years removed from the landmark abortion rights decision, Roe v. Wade, the Commission attempted to find an ethical approach to research conducted on a living fetus. Regarding this form of research, the Commission stated,

[t]hroughout the deliberations of the Commission, the belief has been affirmed that the fetus as a human subject is deserving of care and respect. Although the Commission has not addressed directly the issues of the personhood and the civil status of the fetus, the members of the Commission are convinced that moral concern should extend to all who share human genetic heritage, and that the fetus, regardless of life prospects, should be treated respectfully and with dignity.18

18 National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, Report and Recommendations: Research on the Fetus, DHEW (OS) 76-127 (Washington D.C.: U.S. Government Printing Office, 1975). 211

As the above quotation demonstrates, the Commission believed that a fetus deserved the protections afforded human subjects of biomedical research. However, the Commission was unable to come to a decision on whether or not a fetus possessed personhood – a question that is still hotly debated in the United States. The significance of this report, however, in relation to this chapter is the Commission’s statement on the specific requirements a research study must possess for it to be considered ethical. The

Commission wrote,

[t]o this end, the Commission concludes that in order to be considered ethically acceptable, research involving the fetus should be determined by adequate review to meet certain general requirements: (1) Appropriate prior investigations using animal models and nonpregnant humans must have been completed. (2) The knowledge to be gained must be important and obtainable by no reasonable alternative means. (3) Risks and benefits to both the mother and the fetus must have been fully evaluated and described. (4) Informed consent must be sought and granted under proper conditions. (5) Subjects must be selected so that risks and benefits will not fall inequitable among economic, racial, ethnic and social classes.19

The commission was specifically interested in ensuring that participants were able to give informed consent, that the risks and benefits of the research are fully described, and that the overall risks and benefits of the research did not fall disproportionately on specific societal groups. This last point is significant to note in light of the concerns forwarded about economic class during and immediately following the Baby M case. As discussed in M is for Money, the benefits of paid surrogacy seemed to be disproportionately shared among the upper class, while the risks and perils of the practice seemed to fall on the economically disadvantaged.

19 National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, Report and Recommendations: Research on the Fetus, DHEW (OS) 76-127 (Washington D.C.: U.S. Government Printing Office, 1975). 212

In addition to examining the topic of fetal research, the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research also studied the effects of biomedical research on children. As with the Commission’s findings on the subject of fetal research, the resulting report recommended that the Department of Health,

Education and Welfare establish an Ethics Advisory Board to address specific ethical issues as they arise. In 1979, the Advisory Board was asked to review proposed research involving assisted reproductive technologies. The Advisory Board subsequently issued a report on in vitro fertilization. The Board concluded,

(1) the Department [of Health, Education and Welfare] should consider support of more animal research in order to assess the risks to both mother and offspring associated with the procedures; (2) the conduct of research involving human in vitro fertilization designed to establish the safety and effectiveness of the procedures is ethically acceptable under certain conditions; (3) Departmental support of such research would be acceptable from an ethical standpoint, although the Board did not address the question of the level of funding, if any, which such research might be given; (4) the Department should take the initiative in collecting, analyzing and disseminating data from both research and clinical practice involving in vitro fertilization throughout the world; and (5) model or uniform laws should be developed to define the rights and responsibilities of all parties involved in such activities.20

This statement reflects the Advisory Board’s opinion that insufficient data existed to make a final recommendation regarding the practice of in vitro fertilization. As such, the

Board advocated that additional research be conducted regarding the ethical implications of in vitro fertilization. This desire to have more data would be echoed in the reports of two professional organizations overseeing medical research into reproductive technologies and fertility treatment. However, it also meant that no meaningful guiding

20 Federal Register (118), 35033-35058, 1979. 213 principles related to in vitro fertilization or surrogacy would be available by the time the

Sterns and Whiteheads would sign their surrogacy agreement in the mid-1980s.

In 1984, the American Fertility Society (AFS) issued a statement, entitled

“Ethical Considerations of the New Reproductive Technologies,” in the journal of

Fertility and Sterility. Chairing the ethics committee for the AFS was famed fertility researcher Howard W. Jones. Since no further action was taking by the Department of

Health and Human Services Ethics Advisory Board or the President’s Commission on

Bioethics (the successor to the National Commission for the Protection of Human

Subjects of Biomedical and Behavioral Research) following its 1979 statement, the AFS believed that it was an important moment to address the issues involved in the emergence of the new reproductive technologies. The subsequent statement issued by the

Committee addressed a number of the technologies associated with advances in fertility treatment, such as artificial insemination, in vitro fertilization and surrogacy. An overarching concern, addressed by the Committee, covering all of these technologies was the appropriate role of government. Regarding the role of government, the Committee stated, “[t]he Committee is aware that the general role of government in the delivery of health care services differs among the countries that have devoted the most detailed discussion to the new reproductive technologies.”21 The statement continued, “[t]he

Committee clearly subscribes to the view that government should intervene to prevent substantial harm to offspring, for example, by requiring donor screening if such screening is not voluntarily practiced by sperm banks or health practitioners involved in the

21 Ethics Committee, American Fertility Society, “Ethical Considerations of the New Reproductive Technologies,” Fertility and Sterility 46, no. 3 (1986). 214 donation process.”22 While this statement directly involves the practice of sperm banks, the Committee’s assertion reflected a broader belief that government had a duty to regulate the practices, at a minimum, to the extent that the safety and health of the public was at stake.

In addition, the Ethics Committee of the AFS also adopted the approach taken by the National Commission for the Protection of Human Subjects of Biomedical and

Behavioral Research in the Belmont Report. It found three philosophies underpinning the ethical structure governing the new reproductive technologies: respect for autonomy, beneficence, and justice. Regarding the principle of beneficence, the committee wrote,

“[t]he principle of beneficence has traditionally faced at least two major problems. The first is identifying whose welfare or harm is to be taken into account.” Similar to the

Belmont Report, the Ethics Committee utilized the principles of the Hippocratic Oath, which is unsurprising given that the AFS is a professional organization composed of fertility doctors. The Committee, however, elaborated on this principle in the context of reproductive technologies. The Committee stated, “[a] . . . problem is the relative weight to be assigned to different kinds of benefits or harms. In the reproductive context, for example, physical harm to the wife must sometimes be compared with psychological benefits for her and her spouse.”23 The Committee’s consideration of the psychological harm foreshadowed the events of the Baby M litigation. Even as the ethics panels reviewed the implications and problems posed by surrogate motherhood and assisted

22 Ethics Committee, American Fertility Society, “Ethical Considerations of the New Reproductive Technologies,” Fertility and Sterility 46, no. 3 (1986).

23 Ibid.

215 reproductive technologies, they failed to establish a system that could effectively manage the advances in reproductive medicine.

When the Committee concentrated on surrogate motherhood, it acknowledged that the issue had received little national attention. Moreover, the Committee was concerned that researchers had largely ignored multiple aspects of the emerging treatments. The Committee commented,

[a]lthough it has produced many more babies than have been born after cryopreservation of a preembryo or by preembryo donation after in vivo fertilization, there have been no medical articles published about the procedure, its success rate, or the mental or physical health of the children produced.24

As the above quotation illustrates, the Committee was particularly concerned about the health consequences of the practice on surrogates, adoptive parents and children.

Moreover, the Committee blamed this lack of attention and scrutiny on the commercial origins of the practice. They stated, “[o]ne reason for the lack of scientific attention to the medical aspects of surrogate motherhood is that it has developed in an entrepreneurial setting, generally apart from medical institutions.”25 They continued, “[a]lthough the founders of some surrogate mother programs are physicians, the majority are lawyers, social workers, or persons with no professional training.”26 This assessment would certainly be true of the factual circumstances of the Baby M litigation. Noel Keane, the founder of the clinic utilized by the Sterns, was a lawyer. His staff was comprised of largely social workers. While the clinic engaged medical professionals to assist in the

24 Ethics Committee, American Fertility Society, “Ethical Considerations of the New Reproductive Technologies,” Fertility and Sterility 46, no. 3 (1986).

25 Ibid.

26 Ibid. 216 artificial insemination of surrogate mothers, medical providers were largely absent from the practice. As such, the Committee’s concerns were factually accurate, and would be highly visible to the public only three years later when the Baby M case would capture national headlines.

Additionally, after closely examining the emerging practice of surrogacy arrangements, the AFS concluded that it was unwise, in 1986, to endorse the practice of surrogate motherhood. The Committee decided that too many ethical and moral problems existed. In describing its decision, the Committee said,

[t]he Committee does not recommend widespread clinical application of surrogate motherhood at this time. Because of the legal risks, ethical concerns, and potential physical and psychological effects of surrogate motherhood, it would seem to be more problematic than most of the other reproductive technologies. The Committee believes that there are not adequate reasons to recommend legal prohibition of surrogate motherhood, but the Committee has serious ethical reservations about surrogacy that cannot be fully resolved until appropriate data are available for assessment of the risks and possible benefits of this alternative.27

As the above quotation demonstrates, the Committee did not advocate a regulatory ban of the practice. In essence the Committee wanted to accumulate further data to study the effects of surrogate motherhood. Moreover, it recommended that a number of issues be

27 Ethics Committee, American Fertility Society, “Ethical Considerations of the New Reproductive Technologies,” Fertility and Sterility 46, no. 3 (1986). Moreover, the Committee recommended that a number of issues be researched before surrogates were utilized more widely in the United States. The Committee stated, “a. the psychological effects of the procedure on the surrogates, the couples, and the resulting children; b. the effects, if any, of bonding between the surrogate and the fetus in utero; c. the appropriate screening of the surrogate and the man who provides the sperm; d. the likelihood that the surrogate will exercise appropriate care during the pregnancy; e. the effects on the surrogate’s own family of her participation in the process; f. the effects of disclosing or not disclosing the use of a surrogate mother or her identity to the child; h. other issues that shed light on the effects of surrogacy on the welfare of the various persons involved and on society.” 217 extensively researched and studied before any further action or adoption of surrogacy took place.

Like the AFS, the American College of Obstetricians and Gynecologists (ACOG) studied the practice and the problems posed by surrogate motherhood. Indeed, ACOG had reviewed surrogate motherhood, alongside the AFS, in the early 1980s. In 1983,

ACOG issued a statement largely consistent with the AFS’s report described above.

Nevertheless, it chose to revise and clarify its position in 1990. In its revised statement, the ACOG wrote, “[a]fter extensive deliberation and debate, the Committee on Ethics has adopted an analytical framework and reached a conclusion which it now puts forward for public discussion and critical evaluation.”28 This desire to make the discussion public followed the intense media scrutiny of the Baby M case. As a way of engaging a previously unaware public, the ACOG committee took advantage of the publicity associated with the Baby M trial. In addition, the Committee’s revised perception of the issues reflects the questions inherent in surrogacy contracts as highlighted by the Baby M litigation. The Committee continued,

[t]he Committee’s general view is that the surrogate mother, who both carries the fetus and delivers the infant, 1) should be the sole source of consent for all questions regarding prenatal care and delivery and 2) should have a specified time period after the birth of the infant during which she can decide whether or not to carry out her original intention to place the infant for adoption. Thus in all relevant aspects the position of the surrogate mother should be the same as the position of any other woman who, either prenatally or postnatally, has expressed the intention of placing an infant for adoption.

28 American College of Obstetricians and Gynecologists, Committee on Ethics, Ethical Issues in Surrogate Motherhood. ACOG Opinion 88. Washington, D.C.: American College of Obstetricians and Gynecologists, 1990. 218

ACOG’s desire to protect the surrogate mother and allow her to change her mind is a reflection of the criticism leveled at the surrogacy brokers in the aftermath of the Baby M decisions. Moreover, the effort to ensure that surrogate women were able to make their own health care choices during the pregnancy echoed the suggestions at the Baby M trial that Elizabeth Stern attempted to persuade or coerce Mary Beth Whitehead to take specific actions regarding fetal testing and maternal health.

In addition to the questions of choice described above, ACOG also discussed in depth the issue of compensation in surrogacy. The ACOG Ethics Committee stated,

“[p]erhaps no topic related to surrogate motherhood has been more contentious than that of the surrogate mother’s being paid by the commissioning couple.” The Committee statement was undoubtedly true. The issue of payment was the central question debated by much of the public. As demonstrated in the chapter M is for Money, inherent in the question of compensation was the potential for exploitation. The ACOG committee, however, largely dismissed the possibility that exploitation in surrogacy was different, in any meaningful capacity, from that of any other medical technology. They wrote, “[t]hat argument seems correct; however, it applies equally to any medical service that is not currently covered by most health insurance programs.” In short, the Committee felt that while exploitation was possible, opponents could hardly complain about the problem associated with surrogacy without addressing other areas of health care.

Ultimately, the Committee was most concerned with the implications of whether regulating compensation could end the practice. While emphasizing the ability of treating infertile patients, the ACOG Ethics Committee suggested that prohibiting fees could destroy the treatment options. The committee argued,

219

[i]n short, financial transactions clearly complicate surrogate motherhood arrangements. However, surrogacy arrangements between strangers are not likely to occur without the payment of a fee to the surrogate mother. While the committee has reservations about the introduction of financial transactions into human reproduction, it can see no overriding ethical objection to the payment of a surrogate mother for her services, provided that policy guidelines . . . are carefully observed.

The Committee largely accepts the argument that surrogacy can only be supported by an industry facilitating and providing for compensation for surrogate mothers. Moreover, as the Committee’s statement implies, the Committee believed that surrogacy arrangements are a necessary and important tool in assisting infertile couples achieve success in family formation.

Finally, ACOG issued a set of guidelines to enable the implementation of improved ethical practices in surrogate motherhood arrangements. While the entire list of recommendations comprises eight suggested policies, a few specific recommendations are noteworthy. The Committee recommended that surrogate motherhood arrangements only be used in “the case of infertility or other medical need, but not for reasons of convenience alone.” This statement was a clear reference to the conservative concerns that women would start adopting the procedure to avoid childbirth, while enjoying careers and lifestyles outside of the home. In addition, the Committee suggested,

“surrogate parenting arrangements be overseen by private nonprofit agencies with credentials similar to those of adoption agencies.” This recommendation was particularly aimed at the perception that brokers were exploiting the practice and the primary source of the problem. Furthermore, by removing the for profit broker, the Committee could combat the perception that compensation was the central drawback associated with surrogacy in the United States. Lastly, the Committee believed that “[w]hatever

220 compensation is provided to the surrogate mother should be paid solely on the basis of her service in attempting to assist an infertile or otherwise medically handicapped couple.” As argued above, this recommendation was primarily designed to counteract the widespread perception that compensated surrogate motherhood arrangements were little more than baby-selling.

The bioethical regime implemented in the United States following the Second

World War attempts to balance the competing values of furthering scientific research with the protection of participants and test subjects. A problem emerged, however, in that these attempts largely focused on the use of federal money. To the extent that a regulatory “bite” existed, it was that the rules and policies advanced by DHEW and its successors were enforced via federal funding. While many large research organizations, public and private universities, and even private organizations received federal money for research involving human subjects, not all areas of medical or scientific research have been funded in this manner. Indeed, a characteristic of fertility treatment and research is that a large portion of the funding is from private sources. As demonstrated by the chapter discussing money and the Baby M decision, the expense of surrogacy agreements help fund ongoing research into assisted conception – leaving the enforcement mechanism envisioned by federal regulations ineffective. As Leonard Grantz writes,

“[t]hese regulations were applicable to all DHEW grants and contracts in which human subjects were involved. Accordingly, the regulations were not applicable to research funded by other sources. This was not because DHEW was not concerned about other research populations, but because this was the only body of research over which it had jurisdiction.” Consequently, the reports and statements discussed in the above-

221 paragraphs remained largely recommendations and guidelines at the start of the Baby M litigation.

Morality and Modernity

In 1987, the Baby M case elevated the issues associated with surrogacy arrangements to the national spotlight. In newspaper articles and editorials, writers speculated about solutions to the growing number of problems arising from the rapid advances in biomedical science. In many ways, as discussed in the previous section, these issues were becoming embedded in the fabric of the guidelines governing medical research in the United States. While the public was aware of biomedical advances, the

Baby M litigation focused attention on reproductive medicine and fertility treatment like few other cases. Nevertheless, bioethicists had been working on a number of issues, such as the right to die, genetic engineering, gene therapy, and organ and tissue donation. The

Baby M case propelled the issue of surrogacy to the forefront of public debate. Almost from the moment the trial started, journalists related the Baby M case to bioethics.

As the Baby M trial started to gain a broader following in the United States, numerous groups and organizations not only took notice of the issues involved, but also appreciated the potential to promote their organization’s particular viewpoint by utilizing the public visibility generated by the litigation. This desire to utilize the intense media coverage was particularly true of the Catholic Church. Already aware of the emerging issues involved in biomedical advance, the Catholic Church viewed the Baby M litigation as an opportunity to take a public stand on the issue of surrogacy, as well as a larger set of reproductive technologies. Accordingly, the Vatican announced during the trial phase

222 of the Baby M case that any use of in vitro fertilization and surrogate motherhood to achieve a family was forbidden under Catholic teachings.

Unsurprisingly, the Vatican was correct in anticipating journalistic interest in covering the story. E.J. Dionne of the New York Times reported, “[i]n an effort to influence laws on these issues before they are passed, the Vatican last week issued a lengthy statement condemning virtually all forms of test-tube fertilization, the use of surrogate mothers and experimentation on human embryos.”29 In short, the Vatican utilized the widespread publicity generated by the Baby M case to disseminate its belief that the new reproductive technologies represented a dangerous aspect of modernity.

One way the new reproductive technologies seemed threatening to the Catholic

Church, apart from questions of morality, was the rapidity by which the technologies seemed to be developing and evolving. Church leaders believed that the technology was being discovered and implemented far faster than humans could promote rules and procedures to contain their hazardous implications. In interviewing Richard Doerflinger of the National Conference of Catholic Bishops, E.J. Dionne wrote,

[t]hese procedures are getting away from us, warned Richard Doerflinger, a theologian in the Washington headquarters of the National Conference of Catholic Bishops, who has sensed that people are paying more attention to thorny ethical problems in the past six months. “Baby M shifted the debate in favor of our position. The problems with the procedures became so clear. It showed lots of choices and they’re all wrong. There is no happy solution to Baby M-type cases,” he said. That court decision crystalized feelings against surrogacy, and it shifted the debate from “is surrogacy good or bad?” to ‘We have to prevent these abuses.”30

29 E.J. Dionne, Jr., “Tough Decisions Along a New Ethical Frontier,” New York Times, March 15, 1987.

30 Timothy J. McNulty, “Growing Pains Afflict Birth Technology,” Chicago Tribune, July 28, 1987. 223

As Dionne’s interview with Doerflinger suggests, the Catholic Church not only believed that the Baby M litigation represented an excellent opportunity to publicize its position on reproductive technologies, but that it had fundamentally altered the public’s attitude toward reproductive biomedical research. As Doerflinger argued, the Catholic Church considered the Baby M case to be a good example of how surrogacy arrangements could go very wrong.

In Bishop Doerflinger’s interview with E.J. Dionne, he continued to criticize the way reproductive technologies were being developed and implemented in American society. Especially troubling to Doerflinger was the concern that medical doctors would simply not allow patients to accept their infertility. As Doerflinger stated, “[p]eople are persuaded by doctors to try more and more treatment because the doctors are enamored with the new technology.”31 In other words, Doerflinger believed that despite the moral hazards of the new methods in fertility treatment, doctors would continue to recommend their patients try different treatment options. This inability of physicians to resist, however, recommending reproductive technologies was only one side of the coin for

Bishop Doerflinger. Equally concerning was the public’s attitude toward the new reproductive technologies. As Doerflinger argued, “[w]e want our own children . . . our immortality, our yuppie, me-generation desire to own a child. A consumer mentality toward babies is developing.”32 Doerflinger’s comments highlight many of the concerns generated by the Baby M litigation. Most evident is the prospect of markets developing

31 Timothy J. McNulty, “Growing Pains Afflict Birth Technology,” Chicago Tribune, July 28, 1987

32 Ibid. 224 in children and baby-selling. Moreover, Doerflinger’s statement offers a critique of the consequences of modernity and the acceptance of market capitalism.

The Catholic Church’s statements were not overlooked by the attorneys and litigants involved in the Baby M trial. Both Gary Skoloff and Harold Cassidy commented on the Vatican’s statement in an article written by Iver Petterson appearing in the New

York Times. Petterson wrote,

Gary N. Skoloff, a lawyer for Mr. Stern, predicted that liberal states would enact laws legalizing surrogate contracts and conservative states would not. But for the large majority of states somewhere in the middle,” he said, “this kind of edict from the Pope will carry some weight, negatively.33

In Skoloff’s view, the statement from the Vatican would be consequential. While it would not directly impact legislation in the states, it might influence public attitudes in states without a predisposition to surrogacy regulations. Gary Skoloff’s perception of the

Vatican’s statement was slightly different from that of Harold Cassidy. In discussing

Cassidy, Petterson stated,

Harold J. Cassidy, the lawyer for Mrs. Whitehead and a Catholic who once studied for the priesthood, said a third of the country is Catholic and required to abide by the Vatican’s statement. “The courts,” he added, “cannot ignore prevailing social attitudes about the morality of surrogate- parenting arrangements.”34

Cassidy’s prediction concerning the impact of the Vatican’s statement proved to be optimistic. His belief that a third of the United States, by virtue of being Catholic, was bound to abide by the Vatican’s wishes reflected his training for the priesthood.

The Catholic Church and Richard Doerflinger’s statements, during the Baby M case, however, did not result in unquestioning acceptance by the Catholic faithful in the

33 Iver Petterson, “Hospitals Acted Ahead of the Vatican,” New York Times, March 11, 1987.

34 Ibid. 225

United States. Similar to other issues involving human reproduction, Catholics viewed the statements from Rome with a certain disregard. For many Catholics experiencing trouble conceiving a child, the Vatican’s statement was out of touch with modern society.

Additionally, the Church’s comments represented a lack of compassion for the heartbreak infertile couples experienced while struggling to conceive and start a family. E.J. Dionne summarized the attitude of many Catholics in the following passage,

[m]any Catholics, as well as non-Catholics, took issue with the document, especially its ban on the use of new technologies by married couples who want children. Many Catholic couples said they would deal with this aspect of the Church’s teaching in the same way they dealt with its ban on birth control: by ignoring it.35

As Dionne wrote, many Catholics simply ignored the Vatican’s statements on the new reproductive technologies. Far from Richard Doerflinger’s belief that the Baby M litigation generated greater support for the Church’s positions, the net result of the

Church’s statements was largely inconsequential.

While Catholic parishioners largely ignored the Vatican’s proclamations concerning reproductive technologies, the Catholic Church’s statement on in vitro fertilization and surrogacy was not completely discounted. As the Catholic Church operates a number of hospitals in the United States, the Church’s teachings were implemented at medical facilities across the country. At hospitals controlled by the

Catholic Church, patients would not be treated with the new reproductive technologies.

As Iver Petterson reported, “[t]he sisters of Bon Secours, which operates Catholic hospitals, including four in the East, passed a resolution . . . discouraging surrogate

35 E.J. Dionne, Jr., “Tough Decisions Along a New Ethical Frontier,” New York Times, March 15, 1987. 226 mothers from having their babies delivered at the order’s hospitals.”36 As Petterson’s statement suggests, not only were the reproductive technologies prohibited at Catholic hospitals, but surrogate mothers were even discouraged from delivering children from surrogate mother agreements at their medical facilities.

For doctors and medical providers at Catholic hospitals, the Church’s statement on surrogate motherhood and in vitro fertilization hindered their ability to treat infertile couples. The inability to utilize the new reproductive technologies greatly limited the treatment options available to Catholic physicians. However, many of these physicians worked to provide alternative methods of treatment for infertile patients. Petterson wrote,

“[s]ome Catholic physicians and hospitals are developing techniques to relieve infertility in married couples without running afoul of the Vatican’s teaching. When damaged

Fallopian tubes impede the movement of the egg, for example, the doctor may move the egg to the lower portion of the tube for natural fertilization.“37 As Petterson’s writing suggests, Catholic doctors did utilize the Church’s teachings in their practice. For these physicians, while the range of treatment options was limited, they did find less invasive ways to help facilitate conception.

As E.J. Dionne’s and Iver Petterson’s reporting suggests, the Catholic Church was deeply troubled by the advances in the new reproductive technologies as they related to the development of surrogate motherhood contracts. However, these concerns were a part of larger apprehensions regarding morality and modernity. The development of

36 Iver Petterson, “Hospitals Acted Ahead of the Vatican,” New York Times, March 11, 1987.

37 Ibid. 227 different forms of fertility treatment and surrogate motherhood were part of larger trends in sexuality, modernity and medicine. Dionne argued,

[y]et the timeliness of the Vatican’s cry of alarm almost certainly won the document a wider hearing than it would have received a decade ago. The anguish of the Baby M trial has made many uneasy about the very idea of surrogate motherhood – and that is just part of the new anxiety over the sexual and medical revolutions. The source of much of the strain can be summarized in one word: AIDS.38

As this excerpt demonstrates, the Catholic Church utilized the coverage of the Baby M litigation to comment broadly on the new reproductive technologies. Importantly, however, journalists and other observers noted that the sentiments underlining the statement transcended the rapid advances in biomedical technology. At the heart of the

Vatican’s statement was a deeply held belief that advances in biomedical technology were but an example of the widespread changes wrought by modernity. Furthermore,

Dionne continued, “[f]or some believers, AIDS is divine retribution against a society that had abandoned restraint. But the spread of the disease has engendered a new caution even among the most sexually active.”39 Again, Dionne is connecting the developments in the biomedical reproductive field to larger concerns about sexuality and modernity in the United States.40

38 E.J. Dionne, Jr., “Tough Decisions Along a New Ethical Frontier,” New York Times, March 15, 1987.

39 Ibid.

40 E.J. Dionne would elaborate on the association between the medical revolution in reproduction and concerns over sexuality and sexual health in the United States. He wrote, “For many conservatives, the lesson of the disease is that permissive sexual behavior must be curbed. But for the Surgeon General, Dr. C. Everett Koop, the urgent concern is how to keep the disease from spreading. So this ardent foe of abortion finds himself championing sex education and advertisements for condoms. Many of Dr. Koop’s former allies see the ads as an affront to public modesty and to their sense of values. Paul Maslin, a liberal poll taker, said the implicit message of condom advertising was clear: “It’s a continuation of ‘more sex.’” E.J. Dionne, Jr., “Tough Decisions Along a New Ethical Frontier,” New York Times, March 15, 1987. 228

The Baby M litigation also spurred debate about the implications of the new reproductive technologies among journalists. As members of the news media reported on the Baby M case, they researched the evolving science behind reproductive medicine.

Consequently, they expressed reservations about the implications of surrogate motherhood on families and American society. In an article appearing in the Washington

Post, Judy Mann wrote,

[s]o there be as little misunderstanding of this column as possible, I am on record as having a lot of misgivings about some of the alternative methods of becoming parents that rely on doctors and technology rather than a husband and wife. The heartbreak that enveloped every person involved in the Baby M case was enough to convince me that there should be laws banning the use of surrogacy, for example. I’m old fashioned enough to believe that a child is generally better off coming into a home with a mother and father who can both help with childrearing than he or she is in a home with a single parent.”41

As Mann’s article articulates, many expressed grave concern about the structure of the modern family. Many shared Mann’s anxiety about a child being raised in a home without both a mother and a father. Her trepidations reflect many of the growing anxieties discussed in the chapter, M is for Motherhood, over the possibility of women postponing childbearing for a career or convenience.

Mann labeled her characterization of surrogate motherhood “virgin births” to highlight the disconnect between surrogacy facilitated reproduction and traditional family structure. To Mann, surrogacy allowed for the creation of family units that did not have two heterosexual parents. While this was certainly possible without surrogate motherhood, Mann was disturbed that this could now be intentional, deliberate and planned. Mann wrote, “[b]ut once it became possible to fertilize women artificially, thus

41 Judy Mann, “Furor Over Virgin Birth Misses the Point,” The Washington Post, March 13, 1991. 229 making the sex act unnecessary for procreation, it then became possible for single women and lesbians to become pregnant. Could a virgin be far behind?”42 As this quotation reveals, Mann is alarmed that modern society is forgoing traditional families. In addition to family structure, Mann is concerned that modern society and the new reproductive technologies will erode parenting skills and produce unwanted children. She continued,

“[b]ecause those women have never had children, they have no idea what it is like to raise one. Neither do they have a clue about how tough it is to raise a child alone, because that is something you don’t really understand until you are doing it.”43 In this instance, Mann believes that surrogate motherhood might produce even more unwanted children. Single women, established in careers, might engage a surrogate to conceive a child. After the child is born, Mann envisions many of these single women might no longer want the child after they realize how difficult childrearing is. Like many of the other concerns described by activists, attorneys, and journalists during the Baby M litigation, Mann’s fears never really materialized. However, it is important to note as it demonstrates growing concerns over modernity and reproductive technologies.

A more accurate fear expressed during the Baby M case was the prospect that the technologies facilitating surrogacy could lead to genetic engineering and widespread eugenics. In particular, many journalists considered the possibility that couples could one day choose specific features they desired their child to possess. Whether the sex of the baby, hair color, intelligence or athletic ability, commentators and activists grew

42 Judy Mann, “Furor Over Virgin Birth Misses the Point,” The Washington Post, March 13, 1991.

43 Ibid.

230 increasingly alarmed at the technologies’ implications for engineering perfect children.

In an article appearing in the Chicago Tribune, Timothy McNulty wrote,

[t]he research that has gone into solving their infertility has spurred on new methods of conception and testing for fetal abnormalities, and it has created larger implications for society. The science created to ease the anguish of infertile couples is now giving choices of conception methods and preferred baby characteristics; parents may choose not only how to conceive, but whom to conceive.44

McNulty argues that the pain experienced by infertile couples is producing an environment where society does not question the implications of the science involved.

The logical extension, according to McNulty, is the ability of couples to choose baby characteristics. Indeed, McNulty consults with a Miami-based physician who not only agreed that the logical implications were greater selectivity in choosing the characteristics of children, but also that this process could be preferable. “As heretical as it may sound,” suggested Janet Canterbury, a Miami physician, “if we can improve the human race, why not?”45 Such a statement horrified McNulty, as well as many others actively engaged in the debate over the new reproductive technologies.

Journalists were not the only individuals concerned about the eugenic implications of the new reproductive technologies. While these concerns were not new, nor did they originate with the Baby M trial, the litigation did focus greater public attention on modern questions of bioethics. Gena Corea, a feminist activist long engaged in the debate over reproductive technology, believed that these biomedical advances would shape the coming decades. She stated,

44 Timothy McNulty, “Growing Pains Afflict Birth Technology,” Chicago Tribune, July 28, 1987.

45 Timothy McNulty, “High-Tech Motherhood Creates Social Rifts,” Chicago Tribune, July 26, 1987. 231

[t]hese are technologies that are going to shape our coming century . . . What is really happening is not visible yet, but this is a way of controlling which kinds of human beings are allowed to be born. It’s eugenics for health’s sake. We don’t like to compare it to Nazi Germany’s search for the master race, but we do want only healthy babies.”46

Corea’s rhetoric linking the implications of the technologies underpinning the rapid growth of surrogate mother arrangements to the Nazi’s search for a master race was exaggerated and overstated. However, the growing concern over reproductive technologies’ ability to create a modern eugenics problem was well justified.

Genetic Gatekeepers: Eugenics in the Modern Fertility Industry

At the California Cryobank, with locations across the country, including Los

Angeles and Palo Alto, California, Cambridge, Massachusetts, and New York, New

York, couples and single individuals either experiencing difficulty conceiving a child or confronting structural or cultural impediments to parenthood may casually browse carefully prepared dossiers of available sperm donors. Scholars have been aware of these types of organizations, such as, the California Cryobank for decades. As assisted reproductive technologies (ART) have became more commonplace, and in many ways accepted in the United States, providers of these services have also steadily increased.

Indeed, according to the Center for Disease Control (CDC), there are currently over 443 clinics and organizations that report data concerning practices involving assisted reproductive technologies (ART).47 While many of these providers started as clinics or other nonprofit organizations designed to aid couples experiencing infertility, many today

46 Timothy McNulty, “High-Tech Motherhood Creates Social Rifts,” Chicago Tribune, July 26, 1987.

47 Center for Disease Control, "Spreadsheet of Clinic Tables and Data Dictionary." Last modified February 2010. Accessed June 1, 2012. http://www.cdc.gov/ART/index.htm. 232 are either for-profit or have transitioned to for-profit corporations. One only needs to look to the literature offered by the provider to discern the commercial purpose of these ventures. Those seeking services furnished by these providers are typically not referred to as patients, but as clients.48 This is not to imply that providers of other medical services, related or unrelated to fertility and/or assisted reproduction, are not engaged in a commercial purpose, only that their status as a commercial enterprise may suggest that their behavior in society and the marketplace may be influenced by business-related purposes.

Today, over two decades removed from the concerns voiced during the Baby M litigation, individuals have a wide range of available services from which to choose when seeking to purchase gametes or gametic material. Driven by consumer demand, sperm and egg banks offer individuals the ability to search for very specific donor characteristics. At the intersection of public health concerns, sound medical procedure, and acceptable standards of care emerge a collection of issues that challenge the boundaries between acceptable medical practices and the creation of designer babies.

California Cryobank (CCB), for example, allows potential clients to search their online donor database by hair color, hair texture, eye color, height, blood type, ancestry, ethnic origin, education level, area of university study, and religion – leading many critics to argue that the infertility industry is merely practicing modern day eugenics. Concerns over the potential for modern day eugenics are not entirely unfounded. While many procedures for screening gametes and gamete donors have sound medical rationale, such as testing for Chlamydia, Gonorrhea, Hepatitis B, Hepatitis C, HIV, Syphilis and other

48 California Cryobank, "Selecting a Sperm Bank." Accessed June 3, 2012. http://www.cryobank.com/Why-Use-Us/Selecting-a-Sperm-Bank/. 233 infectious diseases, others have more uncertain medical or public policy rationales. Even procedures that at first appear to be grounded firmly in medical practice, have received critical attention from scholars. For example, screening programs for sickle cell anemia in the 1970s provided recipients and black communities more generally with poor information and little support. Such misinformation accompanied by poor counseling led to discrimination, along with advice and programs that often discouraged “completed pregnancies.”49

Statements by gamete providers illustrate the tension between legitimate medical concerns and consumer marketing. The California Cryobank’s website claims,

[the] CCB provides quantity without sacrificing quality. Our strict donor qualification process eliminates over 99% of all applicants. High educational and physical standards, personal and family medical history, multiple semen and blood analyses, genetic screening, and a series of extensive interviews are used to find the highest caliber sperm donations possible.50

As this passage demonstrates, a very real tension exists between providing reasonable medical diagnosis and responding to market pressures, potentially leading to policies resembling eugenics. The CCB’s website continues,

[m]ost sperm banks’ donor recruiting is limited by their single location. CCB’s four donor labs are spread across the country, allowing us to not only recruit from many of the country’s top universities (UCLA, USC, Stanford, Harvard, MIT), but also from the major metropolitan cities surrounding them.51

49 Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (New York: Vintage Books, 1997), 250.

50 “Donor Selection,” California Cyrobank Reproductive Tissue Services, Accessed December 6, 2011, http://www.cryobank.com/Why-Use-Us/Donor-Selection/.

51 Ibid.

234

Recruiting specific types of individuals to donate gametic material, whether by market selection or a sperm or egg bank’s internal “quality control” procedure, opens the door for a number of issues associated with eugenics. Specifically, the ability of gamete banks to select the donors of gametic material, exercise custody over the gametic material and sell the gametic material allows banks to exercise a unique form of control over the industry and ultimately the “goods” they trade – in this case reproductive tissue.

As the above-mentioned passage indicates, gamete banks may exercise their own personal judgment and discretion when selecting donors. As these organizations and businesses control the vast amount of gametic material available for use in assisted reproductive procedures, their judgment and screening procedures places them in a

“gatekeeper” position – deciding which donors, exhibiting certain traits, should ultimately be selected and made available to couples or individuals in need of gametes.

Generally, these providers are free to choose the donors they wish, exclude those that do not meet their written or unwritten criteria, and base selection determinations on whatever criteria they desire.

Their ability to control the gametic material extends beyond the walls of the laboratory. The placement of advertisements and marketing materials affect the types of donors that are available in a given pool of potential applicants. Again, as CCB’s materials indicate, the gamete bank is active in the recruiting process, searching for the

“right” type of donors. Not only the donors that meet basic minimum qualifications to donate, such as medical background targeting disease prevention, but also phenotypical traits – eye color, hair color, height, weight, complexion, and even skin color. Beyond these traits, gamete banks search for other characteristics based on personality type and

235 education. Gamete banks are able to combine these elements of selection to create, as the

California Cryobank claims, the “highest caliber sperm donations possible.”

Gamete Selection and the Marketing of the Gamete Products

For many prospective clients, the process of selecting a donor starts with either an appointment at a local gamete bank or visiting the organization’s website. Presently, many gamete banks provide donor profiles at their facilities or online. The amount of information provided during this initial selection stage often varies between gamete banks. Some gamete banks, such as the Sperm Bank of California (SBOC), provide detailed donor profiles, accompanied by a narrative written by the donor. Other providers supply this information, but only after a potential client has engaged their services and paid a fee for the information. Typically, gamete banks that charge a fee or detailed profiles offer limited profiles for prospective clients, allowing prospective clients to view the “range” of possible donor choices. Whether a limited profile is supplied or a more detailed donor profile is provided, both serve as a marketing device for the gamete bank. It demonstrates to potential clients the choices available to them and allows clients to make decisions based on individual attributes and phenotypical traits exhibited by the donor.

At the Sperm Bank of California, donor profiles include personal information, physical characteristics, family medical history, and donor lab results, along with a discursive section, entitled “Donor Narrative.” The amount of information given to prospective clients in these dossiers is quite large. Among the information collected in the portion labeled “Personal Information” is the month and year of the donor’s birth, the

236 donor’s education and current occupation. Moreover, the status of the donor’s Identity-

Release Program selection is also provided.52

Under the heading “Physical Characteristics,” a prospective client has access to information regarding the donor’s height, weight, hair color, hair type, eye color, complexion, body type, ethnic origin, religion, and blood group. For some donors, a prospective client may view a baby photo of the donor. Even the results of lab tests are made available to prospective clients – testing for Chlamydia, Gonorrhea, Syphilis, HIV

1 & 2, Hepatitis B, Hepatitis C, Cystic Fibrosis, Tay Sachs, and Sickle Cell Anemia.

These tests are in addition to typical medical labs performed, such as, a CBC (complete blood count), Chem Panel (chemistry screen) and Urinalysis. While the identity of the donor is withheld, the remainder of the above-referenced information is easily accessible online to any prospective client.

While each donor profile at the Sperm Bank of California contains this basic, yet detailed, information, every donor profile at the SBOC also has an attached donor narrative. According to SBOC paperwork, each narrative “has not been altered by TSBC staff and there for [sic] reflects original written work of the Donor.”53 This donor narrative includes sections, entitled: “Describe your personality: introvert, extrovert, funny, serious, goal-oriented, curious, shy, etc.” “What are your interests and talents?”

“What are some of your goals and ambitions in life?” “Where do you see yourself in 5 or

52 The Sperm Bank of California, "Donor Profile 4350." Last modified September 24, 2009. Accessed June 1, 2012. http://www.thespermbankofca.org/donorcatalog?field_identityrelease_value=All&field_pregnanc ies_value=All&field_thestatus_value=All&field_vialtype_value=All&field_donoreyecolor_value =All&field_donorhaircolor_value=All&field_donorethnicity_value=All.

53 Ibid. 237

10 years?” “How would you describe your skills and interests in the following areas:

Math, Mechanical, Athletic, Musical, Artistic, Creative, Language, Writing, Literature and Science?” “If you were stranded on a deserted island and could only have one book, one movie and one album, what would they be?” What are some of your reasons for becoming a sperm donor?” Did you choose to be an Identity-Release Program donor?”

“Why did you make this choice?” and “Is there anything else you would like to share with participating families and offspring?”

These donor narratives can be highly subjective and based exclusively on the individual gamete donor. For example, Donor 4575, a 5’10”, 173-pound male with straight, dark brown hair with hazel eyes and a medium build describes his personality in the following manner:

[p]ersonality wise I would say I’m very extraverted. I love meeting new people, having a large friends group, and being at the center of attention. I’m incredibly curious, and find myself on huge tangents in my mind to find out answers to random inquiries I come up with. I’m seen as funny though my humor tends to be a bit dry and dark.54

Regarding his career ambitions, Donor 4575 states, “I yearn to find myself with some sort of creative career, be it in art or music. Something that keeps me challenged, but is fun.

I’d like to be settled in a nice house with a nice girlfriend or wife.”55 Finally, when asked if he would like to provide any further information for either any potential offspring or prospective recipient families, Donor 4575 writes, “I hate to sound arrogant, but I really

54 The Sperm Bank of California, "Donor Profile 4575." Last modified September 24, 2009. Accessed June 1, 2012. http://www.thespermbankofca.org/donorcatalog?field_identityrelease_value=All&field_pregnanc ies_value=All&field_thestatus_value=All&field_vialtype_value=All&field_donoreyecolor_value =All&field_donorhaircolor_value=All&field_donorethnicity_value=All.

55 Ibid. 238 think I’m a great guy. I’m compassionate, personable, and possess an inquisitive mind. I think my offspring would be a good addition to society, and I’d love to make a family happy with my help.”56

By means of comparison, Donor 3729 a 5’10”, 224-pound male with thick, kinky, dark brown hair and light brown eyes writes the following about his personality,

I love to have family and friends around. I’m sensitive to the feelings of others. I give clothes and food to the homeless. I try to resolve conflict and I am a peaceful person. I can have a bad temper if my kindness is taken advantage of and I am provoked. I love to laugh and have a good sense of humor. I’m very respectful of others and make a conscious effort not to fit the offensive stereotypes that Black men are labeled with.57

He reports that his immediate goal in life is to become a firefighter. He states, “I’m taking classes now, but in the future I would like to get into movie production. Finally, in discussing his decision to become a sperm donor and a possible message to be passed along to people who are receiving [his] sperm, Donor 3729 writes, “I’m glad that I can help. I have love in my heart to give and I hope your child brings you so much joy and love.”58

These two examples illustrate both the type of information available to clients of gamete banks and a method used by gamete banks to market the gametes provided by

56 The Sperm Bank of California, "Donor Profile 4575." Last modified September 24, 2009. Accessed June 1, 2012. http://www.thespermbankofca.org/donorcatalog?field_identityrelease_value=All&field_pregnanc ies_value=All&field_thestatus_value=All&field_vialtype_value=All&field_donoreyecolor_value =All&field_donorhaircolor_value=All&field_donorethnicity_value=All.

57 The Sperm Bank of California, "Donor Profile 3729." Last modified September 24, 2009. Accessed June 1, 2012. http://www.thespermbankofca.org/donorcatalog?field_identityrelease_value=All&field_pregnanc ies_value=All&field_thestatus_value=All&field_vialtype_value=All&field_donoreyecolor_value =All&field_donorhaircolor_value=All&field_donorethnicity_value=All.

58 Ibid. 239 donors. The brief narratives give subjective accounts of personality traits exhibited in the donor and might be potentially expressed in a resulting child conceived with the use of denoted gametic material. While the potential clients might have a variety of reasons for desiring a particular attribute, the use of these donor profiles makes it possible that prospective parents have some choice in the genetic composition of their child.

Moreover, these donor narratives allow for the ability of gamete banks to market and target specific attributes deemed desirable by their client base. In addition, the questions themselves form a type of gatekeeping activity. By choosing the questions each donor answers, the gamete bank also chooses the types of answers and the information that can then be conveyed to prospective clients.

This aspect of marketing the gametic material to potential clients is also demonstrated in the interview notes provided by the Sperm Bank of California that accompany the donor profiles. Taken together, the donor profile and interview notes, suggest that donor selection and marketing may not be two completely separate functions performed by gamete banks. For example, the interview notes for Donor 4411 describe a handsome male with seemingly no physical or personality flaws. The interviewer writes,

Donor 4411 is exceedingly handsome and could easily model for a men’s magazine. In my opinion he is one of the best looking donors I have seen in my time here. He came to our interview wearing baby blue basketball shorts with white stripes down the side…His smile is absolutely infectious and lights up his face with happiness. I found it difficult not to smile with him…He can simply be described as a breath of fresh air.59

59 The Sperm Bank of California, "Donor Interview 4411." Last modified September 24, 2009. Accessed June 1, 2012. http://www.thespermbankofca.org/donorcatalog?field_identityrelease_value=All&field_pregnanc ies_value=All&field_thestatus_value=All&field_vialtype_value=All&field_donoreyecolor_value =All&field_donorhaircolor_value=All&field_donorethnicity_value=All. 240

As this passage suggests, the gamete bank is presenting only the best attributes of each selected donor. The information conveyed to the potential client is the best traits of each donor. Negative impressions or ambivalent feelings by the interviewer are not expressed in these interviews. In another example, Donor 4350 is described as, “a broad, athletic build, describing himself as a linebacker type, and I would agree. He is very muscled and built without looking overdone or extremely chiseled. He has cute red hair that suits him well and a pale, slightly rosy undertone to his skin. The donor says some people have told him he looks like the actor Rupert Grint, Ron in the Harry Potter movies.60

This tactic, using celebrity look-a-like photos or comparisons, seems to be prevalent among various gamete banks. Again, it appears as another tool to market donors to prospective clients. It focuses on specific types of characteristics likely to be desirable to couples or individuals seeking gametes. In general, the publication of all of these traits and characteristics in the profiles and interview notes illustrates that couples or individuals select gametes on these traits and gamete banks market these traits to attract prospective clients.

Donor Recruiting and the Lack of Diversity in Available Gametes

In selecting donors, each gamete bank uses a number of different methods to screen applicants. The California Cryobank provides one of the clearest examples of the selection process. The California Cryobank’s literature describes the process with a visual pyramid. At the bottom of the pyramid lies the very first screening process.

60 The Sperm Bank of California, "Donor Interview 4350." Last modified September 24, 2009. Accessed June 1, 2012. http://www.thespermbankofca.org/donorcatalog?field_identityrelease_value=All&field_pregnanc ies_value=All&field_thestatus_value=All&field_vialtype_value=All&field_donoreyecolor_value =All&field_donorhaircolor_value=All&field_donorethnicity_value=All. 241

According to the California Cryobank, applicants are selected for further screening based on their online application. This application asks applicants for their age, height, weight, ethnicity, education, and medical history. In other words, before ever entering the facility and beginning the process, applicants are sorted and selected based on specific characteristics, some with valid medical purpose, others less so. While ethnicity and education are not listed as factors for disqualification, the literature does not distinguish between disqualification and not being selected to proceed. Indeed, the remaining levels of the pyramid only take into consideration additional medical disclosures and further testing and semen analysis. This might suggest that this entry point provides a place in the selection process where the gamete bank exerts greater control over the selection of the donor’s physical characteristics.

When characterizing its donor recruitment and selection procedures, California

Cryobank notes that most of its donors are recruited from “world-class universities,” including UCLA, USC, Stanford, Harvard and MIT. Donors not recruited at universities are typically professionals. Like many other gamete banks, California Cryobank uses internet advertising, information seminars and university publications to recruit sperm donors. Again, this suggests that gamete providers are exercising control and functioning like a gatekeeper when they select and recruit potential gamete donors. In order to receive an applicant pool that meets the expectations of the gamete bank these organizations and corporations use their marketing and advertising to recruit from specific geographic areas and from specific demographic pools.

The result of these policies and recruiting techniques is evident in the donor demographics. At the largest gamete banks in the country, donor profiles indicate that a

242 majority of sperm donors are either college educated or pursuing a college education. A significant percentage of donors have an advanced or professional degree, and a much smaller proportion of the donors indicate attaining at least an associate’s degree. Few donors listed on the donor logs of large sperm banks have a high school education, high school equivalent or less. In other words, it seems safe to infer that the policies and recruitment techniques by gamete banks have been effective in creating a group of gamete donors largely uniform in achieving a baseline level of higher education.

A more troubling aspect concerning trends in donor demographics emerges when race and ethnicity are considered. Across most large gamete banks, minorities are underrepresented among the available donor lists. Among those underrepresented,

African Americans seem to have the lowest representation among sperm donors. Their numbers are lower than both their percentage of the population and among those diagnosed as infertile. A sampling of various gamete banks across the United States indicates that this trend is widespread. The recent donor list of the California Cryobank revealed that only 7 of 322 donors were African American – a mere two percent of the available donors. Northwest Cryobank reported no African American donors. The

European Sperm Bank USA indicated 4 of 94 donors were African American – roughly four percent. The Midwest Sperm Bank had only two African American donors listed - approximately six percent of the thirty available donors at the center. Finally, the New

England Cryogenic Center’s donor list contained only 4 of 77 donors listed as African

American.

A survey of donors of varying backgrounds shows similarly distressing numbers.

Donors, from the above-mentioned group of providers, listed as possessing Asian

243 heritage averaged 5.6 percent of available donors. Only three of the gamete providers reported Hispanic donors, averaging 6.3 percent. Among other demographic groups, gamete banks report either very low numbers of available donors or no available donors.

These numbers suggest gamete banks are likely exercising some gatekeeping role, either through selection or recruitment, in constructing donor lists underrepresenting portions of the American population.

Eugenics and Race

As the reported numbers of available donors suggest, there currently exists a very real lack of diversity among gamete donors, and consequently of available reproductive tissue in the fertility marketplace. The area where this is abundantly clear is racial or ethnic categorizations at large gamete banks. As Dorothy Roberts notes in her work

Killing the Black Body: Race, Reproduction, and the Meaning of Liberty, “…the images that mark these controversies appear to have little to do with Black people and issues of race. Think about the snapshots that promote the new reproduction. They always show white people. And a baby produced often has blond hair and blue eyes – as if to emphasize her racial purity.”61 This observation, generally speaking, is still true. The advertisements and marketing materials provided by gamete banks often show images of white babies, with white families. However, as the data concerning gamete donors indicates, this doesn’t appear to be only a decision by gamete banks regarding the most effective and profitable course to market their services – these materials and images reflect the industry more broadly. They reflect an enterprise that disproportionately services white, educated and privileged patrons.

61 Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (New York: Vintage Books, 1997), 246. 244

Of course, the disparity among individuals of different demographic groups in seeking fertility treatment is well documented. Discussing these disparities, Roberts wrote,

[o]f course, the busiest fertility clinics can point to some Black middle-class patients; but they stand out as rare exceptions. Only about one-third of all couples experiencing infertility seek medical treatment at all; and only 10 to 15 percent of infertile couples seeking treatment use advanced techniques like IVF. Blacks make up a disproportionate number of infertile people avoiding reproductive technologies. White women seeking treatment for fertility problems are twice as likely to use high-tech treatments as Black women. Only 12.8 percent of black women in the latest national survey used specialized infertility services such as fertility drugs, artificial insemination, tubal surgery, or IVF, compared with 27.2 percent of white women.62

Recent studies confirm Roberts’ observations. Indeed, the percentage of African

Americans seeking infertility treatment remains quite low when compared to the overall client population. A University of Cincinnati Medical Center study found that only

10.2% of the client population was African American, compared to 85.2% white and

4.4% categorized as other. While African Americans remain more likely to experience infertility, they are dramatically less likely to seek and/or have access to infertility treatment.63

The percentage of African Americans seeking infertility treatment appears to be significant when considering the relative percentages of African Americans and other minorities represented on the donor rolls of large domestic gamete banks. With low numbers of African Americans seeking infertility treatment, gamete banks likewise

62 Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (New York: Vintage Books, 1997), 251.

63 Green, Robins, Scheiber, Awadaili, and Thomas, “Racial and Economic Demographics of Couples Seeking Infertility Treatment,” American Journal of Obstetrics and Gynecology 184, no. 6 (2001). 245 experience lower demand for the reproductive and gametic tissue provided by these donors. This may partially explain their disproportionately low representation on the donor rolls.

If the availability of gametes, provided by donors of underrepresented racial or ethnic backgrounds, is driven, or at least partially driven by lower demand, which in turn is a consequence of disproportionately low numbers of infertile couples or individuals of a minority background actively seeking fertility treatment, then underrepresentation of minority gamete donors may be more symptomatic than representative of the underlying problem itself. In this regard, an understanding of the processes that influence whether or not couples or individuals seek fertility treatment is necessary in order to address the lower demand gamete providers’ experience, facilitating lower numbers of minority donors. In Dorothy Roberts’ work, she identifies several factors that explain the disparity in the use of infertility treatment among African Americans. First, she discusses the existence of economic barriers. The cost of infertility treatment places it out of the reach of most African Americans. Moreover, even those with insurance coverage are unlikely insured for infertility treatment.

Another factor Roberts’ observes is racial steering. She suggests that physicians import certain assumptions and privately held views that affect their decision-making and influence the recommendations that are offered to African American women. In addition,

Sickle Cell screening, once thought as a way to improve the lives and health of African

Americans, has instead been used to counsel or restrict Black women from procreating and seeking fertility treatment. Citing culture, Roberts suggests, “[o]ne reason may be the extent to which Blacks have bought into stereotypes about their own reproductive

246 capacities. The myth that Black people are overly fertile may make infertility especially embarrassing for Black couples.”64 Correspondingly, African Americans may reject genetic marketing.

Taking into account Roberts’ factors regarding the disparity in the use of fertility treatment among African Americans, we can see that finding a workable solution to address this disparity will be difficult and complex. With regards to the first factor, economic barriers to access, it seems from the available data that lowering economic barriers might improve the number of African Americans accessing treatment, but may be unlikely to fully resolve not only the discrepancy in the use of fertility treatment, but also other structural barriers encountered by infertile African Americans. Naomi Cahn, author of Test Tube Families, writes, “[i]n an extensive study of the use of infertility services in the military health-care system, where health care is easily accessible, Black patients accessed infertility services at a rate roughly proportionate to their percentage in the military population.”65 Cahn uses this study to support the notion that using health care coverage to weaken existing economic barriers has the potential to alleviate the disparity. However, this most likely extends the implications of this study beyond its boundaries. While it seems clear that this may improve the numbers of African

Americans accessing fertility treatment, it does not account for the greater numbers of infertile African Americans. In other words, improving access to fertility treatment

64 Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (New York: Vintage Books, 1997), 259.

65 Naomi Cahn, Test Tube Families: Why the Fertility Market Needs Legal Regulation (New York, New York: New York University Press, 2009), 137. 247 through weakening economic barriers alone is unlikely to fully address the disparity in the use of fertility treatment.

This, of course, is not to imply that using policies to improve access by lowering economic barriers cannot partially alleviate the disparity in access, thereby potentially improving the disparity in gamete donors. As some scholars have noted, it may be possible to reduce the near monopoly of access of affluent Americans by using varying methods, including public spending or regulating insurance coverage, to address these racial and class inequalities.66 Nevertheless, if using the test case of military health care is informative, we can infer that some improvement may be recognized, but it is unlikely to resolve the problem entirely.

If by solving the economic barriers issue is not enough, then it appears that any potential solution to change the disparity in donor representation must also examine factors beyond these economic impediments. “Whittier Law School Professor Judith

Daar usefully distinguishes between medical and structural infertility. Medical infertility is the kind that is diagnosable through medical testing, and structural infertility refers to an inability to bear children because the individual is not involved in a heterosexual relationship.”67 Scholar Naomi Cahn adds the following: “[t]o these two types, I would add a third type, cultural infertility, which refers to an inability to become pregnant because of cost or discrimination or social attitudes.”68 In order to more fully address the

66 Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (New York: Vintage Books, 1997), 288.

67 Naomi Cahn, Test Tube Families: Why the Fertility Market Needs Legal Regulation (New York, New York: New York University Press, 2009), 134 – 135.

68 Ibid. 248 problem of disparity in access and use of fertility services among African Americans and other minority communities, it will be necessary to take a broader approach and find solutions to overcome many of the other issues that Roberts, Daar and Cahn have identified.

In conclusion, rapid changes in medical technology created fundamental questions concerning the obligation of society and professional organizations to manage the ethical problems associated with biomedical advance. These questions were no more apparent than in the area of reproductive technologies. Just as Aldous Huxley forecasted in Brave

New World, innovations in reproductive technology raised concerns over genetic engineering and eugenics. While these issues previously existed in American society, particularly during the progressive period, they were elevated during the Baby M trial as intense media attention focused on the eugenic effect of new reproductive technologies.

Exacerbating these fears were the widespread belief that modernity had released rapid advances in medical technology without the corresponding ability of institutional controls to harness the potential harmful effects of biomedical modernization. Following the Second World War, greater attention was paid to medical research. Applying the principles outlined in the Nuremberg Code, regulators in the United States attempted to construct a functional regime to implement biomedical ethics in the United States. While codification of some of the principles of bioethics has occurred, the enforcement mechanism, today, is primarily the denial of federal funding for projects falling outside the federal government’s guidelines. Moreover, as the reports of both the AFS and

ACOG suggest, the ethical boards of professional organizations also lack the authority to control these rapid advances in reproductive technology.

249

The current lack of diversity among available gamete donors represents fundamental problems present in the fertility industry. However, the problem this inequality presents goes well beyond the selection of gamete donors. It seems clear that fertility clinics and providers of fertility services exercise a substantial “gatekeeping” role in the selection of sperm and egg donors. Clinics and providers are able to determine the donor characteristics that are available in the fertility marketplace; selections that are clearest when examining ethnicity or race. Their use of targeted advertisement and marketing contribute by not only providing the image of the perfect client, but also that of the perfect donor to meet their clients’ needs. These images often exclude minority donors and perpetuate a system that encourages treatment of affluent clients with donor’s possessing specific phenotypical characteristics. This relationship is further illustrated by the targeted recruitment of these specific donors.

The resulting disparity between white donors and minority donors has the potential for imposing a form of eugenics in the fertility industry. By having so few donors of a diverse background, coupled with few minority clients – a clear preference emerges for children within a defined ranged of phenotypical characteristics. Comparing these practices in the case of access to fertility treatment, Dorothy Roberts writes,

“[w]hile birth control has been the tool for imposing negative eugenics, the new reproduction is the instrument for achieving positive eugenics – increasing the number of births from superior parents.”69 It seems that the fertility industry is doing just that. As the lack of diversity suggests, principles of eugenics are still a part of the fertility industry, and the combination of commercialism and rapid innovation demonstrate the

69 Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (New York: Vintage Books, 1997), 283. 250 continued struggle of American society to manage modernity in the context of biomedical advance.

251

Chapter 5: M is for Model Regulations

The years that followed the Baby M decision witnessed a dramatic upsurge in both public interest and legislative attention concerning issues of biomedical advance in the field of human fertility – with specific focus on the question of surrogacy. Through the late 1980s and the 1990s, there was sustained news coverage of advances in fertility treatment and biomedical science. These advances raised public questions and concern over the ethics of infertility treatment and moral limits of scientific research. Yet, public concern over the ethical questions involved in fertility treatment did not produce widespread legislative enactment following the Baby M case. However, the consequences and influence of Baby M shouldn’t be understood in terms of legislative success. Most efforts within state legislative bodies did not result in the successful passing of legislation dealing with surrogacy contracts. This does not imply that the issue did not pervade American understandings of the modern family or of modernity. Instead, it is important and more informative to look at the attempts to provide regulatory guidance on surrogacy contracts in the United States.

The failure of legislatures to enact laws governing surrogacy agreements reflects the contentiousness of the issue rather than an absence of interest. Moreover, it is important to understand that the attention by legislative bodies on surrogacy contracts was not uniform across the United States. While not all states addressed the polarizing issue of surrogacy contracts, states that did decide to examine policy choices governing

252 surrogacy contracts did not always elect the same set of policy options—producing a patchwork of competing legislative regimes across the United States. To fully understand the impact of the Baby M case on the American legal system and American society it is necessary to examine regulatory action concerning surrogacy both before and after the Baby M case was thrust into the national spotlight. Evidence of Baby M’s influence is visible in the work of national advisory commissions designed to create uniform state laws to approach specific issues. The Uniform Law Commission did not address the question of surrogacy agreements in the 1973 Uniform Parentage Act proposal. Yet, by 1988, two years after the Baby M case arose public interest, the

Uniform Law Commission advanced a specific proposed state law, entitled the Uniform

Status of Children of Assisted Conception Act.

Moreover, even in the absence of state legislative action, court cases arose across the United States. Many of the cases directly cited the New Jersey Supreme Court’s decision in Baby M. Finally, a number of states formed legislative committees to examine the issue of surrogacy. These committees often approached the issue in a similar manner to the New Jersey Supreme Court. While their conclusions differed at times, the analytical approach often mirrored that of the New Jersey Supreme Court. In this vein, Michigan legislators attempt to understand the issues involved and their effort to draft governing legislation is an excellent example of the problems facing state legislative bodies in the wake of Baby M.

The Case of Baby M Goes to Trial

In order to understand the impact of the Baby M litigation on subsequent efforts to regulate paid surrogacy contracts, it is first necessary to examine the court decisions

253 ensuing from the Baby M litigation. The dispute between the Sterns and the Whiteheads found its way into the court system months earlier when the Sterns sought judicial intervention following Mary Beth Whitehead’s refusal to surrender custody of Baby M, but it was not until the case reached trial that any dispositive determination could be made to resolve the case. The trial to decide custody of the child started on January 5,

1987. Presided over by Superior Court Judge Harvey Sorkow, the trial lasted approximately three months, and included the testimony of more than 20 witnesses. In order to protect the child’s interests, her name was changed to the pseudonym Baby M for court proceedings. On March 31, 1987, Judge Harvey Sorkow ruled in favor of the plaintiffs William and Betsy Stern, granting the Sterns custody of Baby M and terminating Mary Beth Whitehead’s parental rights.

In Judge Sorkow’s written opinion, he described the multiple legal issues that were advanced by both parties to the court case. While Judge Sorkow wrote, “[t]he primary issue to be determined by this litigation is what are the best interests of a child until now called, ‘Baby M,’” his legal analysis also covered several other questions to be addressed by his opinion.1 In addition to applying the best interests of the child standard to Baby M’s circumstances, Judge Sorkow examined five other discrete legal issues before the court; (1) the validity of the surrogacy contract, (2) constitutional questions controlling the rights of the parties to enter into surrogacy arrangements, (3) public policy considerations bearing on the contract’s validity, (4) the issue of joint custody between

William Stern and Mary Beth Whitehead, and (5) whether the doctrine of informed consent should apply to the facts of the Baby M litigation.

1 In the Matter of Baby M, 217 N.J. Super. 313 (1987), 323. 254

After reciting his finding of fact, Judge Sorkow in his written opinion first turned to the question of the surrogacy contract’s validity. Finding no applicable New Jersey law governing the validity of a surrogacy contract, Judge Harvey Sorkow announced a new rule of law. Sorkow held,

that in New Jersey, although a surrogacy contract is signed, the surrogate mother may nevertheless renounce and terminate the contract until the time of conception. She may then be subject to monetary damages as may be proven. Specific performance to compel the promised conception, gestation, and birth shall not be available to the male promisor. However, once conception has occurred the parties’ rights are fixed, the terms of the contract are firm and performance will be anticipated with the joy that only a newborn can bring.2

His decision fundamentally upheld the validity of the surrogacy agreement between the

Sterns and the Whiteheads. Moreover, Judge Sorkow’s opinion made the agreement irrevocable once conception had taken place. This irrevocability would prove important in subsequent judicial proceedings. Once conception occurred, according to Judge

Sorkow, neither the Sterns nor Mary Beth Whitehead could escape the contract.

Having concluded that a contract existed between the Sterns and the Whiteheads,

Judge Sorkow proceeded to examine possible reasons the contract may be held unenforceable, including: the contract in the Baby M case is one of adhesion, the enforcement of the contract would be unconscionable, the contract was formed on fraud, and finally the contract was illusory. In each instance, Judge Sorkow concluded that the

2 In the Matter of Baby M, 217 N.J. Super. 313 (1987), 375. Nevertheless, after holding that once conception has occurred, a surrogate mother is bound by the terms of the surrogacy contract, the trial court provided for an exception to this rule. “After conception, only the surrogate shall have the right, to the exclusion of the sperm donor, to decide whether to abort the fetus. Her decision to abort must comply with the guidelines set forth in Roe v. Wade, 410 U.S. 113 (1973).”

255 facts of the case did not warrant a finding that circumstances exist sufficient to void the contract.

In probing the argument that the contract between the Sterns and the Whiteheads was one of adhesion, Judge Sorkow first defined a contract of adhesion as “one in which one party has no alternative but to accept or reject the other party’s terms and there are no options by which the party may obtain the product or service.”3 Unconvinced, Judge

Sorkow ruled that both the Sterns and the Whiteheads were able to bargain equally at the time of contract formation. Moreover, Judge Sorkow wrote that both parties were able to make changes to the contract. As evidence, Judge Sorkow cited Mary Beth Whitehead’s testimony that minor changes had been made to the final contract.

In addition to claiming the surrogacy contract is one of adhesion, the Whiteheads argued that enforcing the agreement would be unconscionable. In order for a contract to be found unconscionable, it must be found to be so unfair as to render it unenforceable.

In his decision, Judge Sorkow refused to endorse the notion that the terms of the agreement were so disproportional as to constitute unfairness to Mrs. Whitehead. Indeed,

Judge Sorkow discussed Mrs. Whitehead’s eagerness to enter into the surrogacy agreement. Moreover, he claimed that Mrs. Whitehead was perhaps even in a position of strength when negotiating the terms of the surrogacy agreement. She was selling a service so scarce that she could have negotiated terms favorable to her. Furthermore, it was argued in an amicus brief that the amount of $10,000 was so low as to constitute unconscionability. While conceding that risk, in this case, may have been greater than the value of the agreement to Mrs. Whitehead, Judge Sorkow contended that the contract

3 In the Matter of Baby M, 217 N.J. Super. 313 (1987), 376.

256 possessed other intangibles, such as Mrs. Whitehead feeling that she was accomplishing a societal good. Accordingly, Judge Sorkow reasoned that Whitehead’s attorneys had not shown “unfairness, overreaching, bargaining disparity or patent unfairness that no reasonable person acting without duress would accept the contract terms,” and so the surrogacy agreement would not be held unenforceable due to unconscionablility.

Mary Beth Whitehead’s attorneys also argued that the contract could be rescinded due to fraud.4 At trial, Mary Beth Whitehead alleged three instances of fraud committed by the Sterns, as it pertained to the formation of the surrogacy contract. First, Mary Beth

Whitehead contended that Mrs. Stern was not in fact infertile, that her multiple sclerosis may have increased her risk of complications, but Betsy Stern could have children and her representation otherwise to Mary Beth Whitehead constituted fraud. Second, Mary

Beth Whitehead also alleged that Betsy Stern’s multiple sclerosis was not disclosed to her, and if it had been, she would have questioned Betsy’s ability to care for a child.

Finally, Mary Beth Whitehead alleged that the psychological evaluation conducted on

Mary Beth Whitehead was never disclosed to her. Mary Beth Whitehead’s evaluation raised concerns by the psychologist that she might have difficulty turning over custody at the end of her pregnancy.

In examining these claims of fraud, Judge Sorkow suggested that the attorneys for

Mary Beth Whitehead wished the court to adopt a narrow construction of infertility. In response, Judge Sorkow decided that in the Baby M case, he must define infertility broadly. In particular, Sorkow described infertility as “the inability to conceive and carry

4 Judge Sorkow acknowledged four elements to fraud: 1) a material misrepresentation of a fact; 2) known to be false; 3) upon which a party relied; and 4) to its damage. See In the Matter of Baby M, 217 N.J. Super. 313 (1987), 379. 257 to term without serious threat of harm to one’s physical well-being.”5 In providing a broad construction of the term infertility, Sorkow reasoned that fraud could not have existed at the time the contract formed because Betsy Stern had a reasonable belief that she would risk great bodily harm if she conceived and carried a child to term. Moreover, with regards to the alleged fraud that Betsy Stern’s multiple sclerosis would inhibit her from properly caring for the child, Judge Sorkow cited testimony by Dr. Dressner affirming Betsy Stern’s capability to care for Baby M. Finally, Judge Sorkow refused to adopt the contention that fraud was committed when Mary Beth Whitehead was not informed of the results of her psychological evaluation. In his analysis, Judge Sorkow concluded that ICNY could not have been acting as an agent for the Sterns, and therefore, the Sterns could not be liable for the failure of ICNY to report the results of Mary Beth

Whitehead’s evaluation. Moreover, Mary Beth Whitehead failed to show a reliance on the psychological evaluation, and as such, cannot sustain a claim of fraud in this case.

Mary Beth Whitehead’s attorneys also contended that the contract formed was illusory. In particular, Whitehead suggested that under certain circumstances, Bill Stern was not required to take the child. Accordingly, under such circumstances, only one party had a legal obligation, and thus the contract is unenforceable due to being illusory.

However, Judge Sorkow found that the contract did provide for an obligation on the part of Bill Stern. Mr. Stern would be still responsible under such circumstances to support

5 In the Matter of Baby M, 217 N.J. Super. 313 (1987), 380. Sorkow also provided several other variants to define infertility, including: “1) an inability to conceive, 2) unprotected coitus for a period in excess of one year without conception and 3) as the inability to conceive, carry or bear a child without significant risk to either the mother or the fetus. In the Matter of Baby M, 217 N.J. Super. 313 (1987), 379.

258 the child and provide for its welfare. Since there is an obligation on the part of Mr. Stern,

Judge Sorkow concluded, the contract cannot be illusory.

In his written judgment, Judge Sorkow, addressed many of the concerns raised by those opposing surrogate motherhood and the use of contracts to facilitate the practice.

He wrote,

[c]oncerns have been expressed about the efficacy of surrogate arrangements. They are: 1) that the child will not be protected; 2) is the potential for exploitation of the surrogate mother; 3) the alleged denigration of human dignity by recognizing any agreement in which a child is produced for money; 4) surrogacy is invalid because it is contrary to adoption statutes and other child benefit laws such as statutes establishing standards for termination of parental rights; 5) it will undermine traditional notions of family; and 6) surrogacy allows an elite economic group to use a poorer group of people to achieve their purposes.6

Sorkow analyzes each of these criticisms in his opinion – rejecting each argument as either unsupported or inaccurate.

Judge Sorkow argued that a child resulting from a surrogacy contract would be protected in New Jersey and that it was not true to assert that children from surrogacy contracts were left without legal protections. While legislative action may have been nonexistent, surrogacy agreements still required that an adoption take place to fulfill the terms of the agreement. In such cases, a New Jersey court would still be required to examine the child’s adoption and apply the “best interest of the child standard.” As such, the child would still be protected by the oversight afforded by the adoption proceedings.7

Moreover, Sorkow did not believe that surrogacy contracts held the potential for the exploitation of the mother. Under Sorkow’s analysis, a surrogate mother is aware of the

6 In the Matter of Baby M, 217 N.J. Super 313 (1987), 371.

7 Ibid., 370. 259 agreement before conceiving the child. As such, she has an opportunity to contemplate the ramifications of her decision and consult a myriad of different sources in order to make an informed decision.8

In considering the third argument against surrogacy contracts, Sorkow comes to an interesting conclusion. He agreed with the assertion that financial compensation for a child would denigrate human dignity. In reaching this deduction, Sorkow cites both the thirteenth amendment and New Jersey law as prohibiting compensation in adoption cases.

However, Sorkow concludes that surrogacy agreements do not fall under these types of cases. He suggested that a surrogacy contract is not a transaction for a child. Instead, a surrogacy contract is an agreement for services rendered by the surrogate mother. She is compensated for “her willingness to be impregnated and carry his child to term.”9 Since the agreement is for her services, rather than the result of her pregnancy (the child), surrogacy agreements do not constitute baby-selling.

Regarding the application of New Jersey adoption law, Sorkow did not agree that surrogacy agreements violated state laws governing adoptions. According to his analysis, adoption agreements were not subject to common law. As such, adoption is interpreted as a legislative solution that must be followed by strictly construing the applicable statute.10 By reviewing the legislative history and considering the evolution of reproductive technology, Sorkow concluded that the statute could not be applied to surrogacy because the technology did not exist at the time the statute was drafted and

8 In the Matter of Baby M, 217 N.J. Super 313 (1987), 373.

9 Ibid., 372.

10 Ibid. 260 enacted. Since the technology did not exist, the legislature could not have considered the possibility of applying this legislation to such agreements. Moreover, the legislative history confirmed that no such discussion had taken place. By concluding that New

Jersey’s adoption laws did not govern surrogacy agreements, Sorkow determined that only principles of contracts and family law could be used to adjudicate surrogacy contracts.11

Concerning the assertion that surrogacy agreements would undermine traditional notions of family, Judge Sorkow firmly rejected this argument noting that under surrogacy contracts infertile couples are presented with a child. The child is part of a loving family, with parents who desire a child and have gone to great lengths to be able to have a child join them in their home. Moreover, when addressing the question of the surrogate mother’s husband, Sorkow concludes that he will in most cases be required to sign the surrogacy contract. This would be required because the contract would be establishing the paternity rights of the biological father. Consequently, the contract would seek to have the surrogate’s husband relinquish any claims of paternity.

In addressing the claim that an elite upper economic group will be allowed to take advantage of a lower economic class, Sorkow stated that the “argument is insensitive and offensive to the intense drive to procreate naturally and when that is impossible, to use what lawful means as possible to gain a child.” Under Sorkow’s analysis, the human desire to procreate is essential, if not fundamental, to this question. By addressing the subject in this manner, Sorkow did not believe that the upper economic group is making

11 In the Matter of Baby M, 217 N.J. Super 313 (1987), 372. 261 any considerations other than following instinctual tendencies directed at continuing humanity.

All of these constructions of the applicable law of New Jersey demonstrate how complex and diverse the issues are in surrogacy cases. Surrogacy agreements, like other forms of emerging medical technology, demonstrate that the legal solutions designed to manage, restrict and facilitate biotechnological advance must be flexible and versatile in order to adapt to circumstances that vary factually from case to case.

Following his analysis of the public policy interests of the State of New Jersey,

Judge Sorkow addressed the constitutional questions raised by attorneys for both the

Sterns and the Whiteheads. In his analysis of the constitutional jurisprudence surrounding the right to form families, as it pertains to surrogacy agreements, Judge

Sorkow concluded that the constitutionally protected right to privacy does extend to the use of surrogacy arrangements. Specifically, Sorkow found that if the substantive due process right to privacy protected an individual’s choice to reproduce coitally, then the right must extend to an individual’s choice to reproduce non-coitally. He further refined his holding in the following manner, “[w]hile a state could regulate, indeed, should and must regulate, the circumstances under which parties enter into reproductive contracts, it could not ban or refuse to enforce such transactions altogether without compelling reason.”12

In addition to finding the substantive due process rights secured by the Fourteenth

Amendment to the U.S. constitution protected the parties ability to enter into a surrogacy agreement, Judge Sorkow concluded that the Constitution afforded further protection by

12 In the Matter of Baby M, 217 N.J. Super. 313 (1987), 386. 262 securing the parties’ right to enter into a service agreement. Citing Lochner v. New York,

Judge Sorkow reasoned that

[l]egislation or court action that denies the surrogate contract impedes a couple’s liberty that is otherwise constitutionally protected. The surrogate who voluntarily chooses to enter such a contract is deprived of a constitutionally protected right to perform services.

Judge Sorkow concluded his constitutional analysis by examining the Equal

Protection Clause’s governance of surrogacy contracts. Explaining that males who are surrogate father sperm donors are recognized in every state, Judge Sorkow concludes that a surrogate mother likewise must be recognized in every state or it would be a violation of the equal protection clause’s guarantees.

Under Judge Sorkow’s opinion, he utilized the “best interests of the child” standard in order to determine if the remedy of specific performance should be applied to the Baby M case, thereby terminating Mary Beth Whitehead’s parental rights and awarding sole custody to William Stern. Discussing the “best interest of the child” standard, Judge Sorkow wrote, “[i]t has many meanings for it is a concept general in meaning but specific in application. It is more than a child’s happiness, physical, mental and moral welfare.”13

In his analysis, Judge Sorkow largely adopted the recommendations of psychologist Dr. Salk, who set forth, during trial, a nine-part test to determine the best interest of Baby M. Dr. Salk’s criteria included: 1) [w]as the child wanted and planned for; 2) what is the emotional stability of the people in the child’s home environment; 3) what is the stability and peacefulness of the families; 4) what is the ability of the subject adults to recognize and respond to the child’s physical and emotional needs; 5) what are

13 In the Matter of Baby M, 217 N.J. Super. 313 (1987), 391. 263 the family attitudes towards education and their motivation to encourage curiosity and learning; 6) what is the ability of the adults to make rational judgments; 7) what is the capacity of the adults in the child’s life to instill positive attitudes about matters concerning health; 8) what is the capacity of the adults in the baby’s life to explain the circumstances of origin with least confusion and greatest emotional support; and 9) which adults would better help the child cope with her own life?14

In examining these criteria, Judge Sorkow largely deduced that they weighed in favor of awarding the Sterns sole custody of Baby M. Moreover, Judge Sorkow believed that Mary Beth Whitehead’s conduct following the birth of Baby M demonstrated that she did not have the same level of emotional stability as the Sterns. Additionally, he was concerned with multiple psychologist reports on her impulsiveness and willingness to manipulate. Citing the Whitehead’s past and current marital problems, Judge Sorkow considered the Sterns to represent a much more peaceful and stable family environment for Baby M.

Judge Sorkow relied heavily on the educational backgrounds of the Sterns and the

Whiteheads in evaluating which couple represented the best choice for baby Melissa to respond to her physical and emotional needs, the ability of the adults to instill positive values concerning health, along with motivating her curiosity and learning. Judge

Sorkow reasoned that Betsy Stern’s training as a pediatrician was a strong asset in her ability to respond to the child’s emotional and physical needs. Moreover, when comparing the Stern’s level of education to the Whitehead’s, Judge Sorkow believed the

Stern’s attainment of graduate degrees demonstrated a stronger commitment to education

14 In the Matter of Baby M, 217 N.J. Super. 313 (1987), 392 – 396. 264 and learning over the Whitehead’s. Again, Judge Sorkow concluded that Betsy Stern’s occupation as a pediatrician gave her a skill set that would be valuable in instilling positive and healthy behavior.

Looking over the trial record and his finding of fact, Judge Sorkow found the

Sterns to be better situated in their ability to help Baby M understand the circumstances of her origin. His conclusion was based largely on the Stern’s behavior before and during the trial. Specifically, Judge Sorkow cited the Sterns willingness to look to others for assistance and support. Describing the ability of the Sterns to convey to Baby M the circumstances of her origin, Judge Sorkow wrote, “[t]he Sterns have indicated a willingness to obtain professional advice on how and when to tell his daughter.”15

Similar to his analysis of the other criteria, Judge Sorkow relied heavily on the conduct of both the Sterns and Mary Beth Whitehead during the surrogacy and the subsequent trial in determining which couple had the better ability to make rational judgments and help the child cope with her own life. Specifically referring to Mary Beth

Whitehead’s flight from the jurisdiction, Judge Sorkow concluded that she had not exhibited patterns of “cogent thought” in her behavior immediately after Baby M’s birth.

Moreover, her threatened accusations of Mr. Stern for child molestation further provided proof, in Judge Sorkow’s mind, of her inability to make logical decisions. Furthermore,

Judge Sorkow noted that several psychologists observed that Mary Beth Whitehead did not cope well with stress. The greater the amount of stress in her life, the more often she exhibited impulsive decision-making ability.16

15 In the Matter of Baby M, 217 N.J. Super. 313 (1987), 395.

16 Ibid., 394 – 395. 265

After weighing all of the above criteria, Judge Sorkow concluded that it would be in Baby M’s best interest to be placed in the Stern’s custody. Judge Sorkow wrote,

[i]t is for all these reasons and because of all of the facts found by this court as the trier of fact that we find by clear and convincing evidence, indeed by a measure of evidence reaching beyond reasonable doubt, that Melissa’s best interests will be served by being placed in her father’s sole custody.17

In addition to the issues of contract validity, constitutional protections, public policy concerns, and the best interests of the child, Judge Sorkow also addressed two further legal questions raised by counsel during the Baby M trial – whether informed consent should apply to this case and whether there should be joint custody awarded.

Neither issue received extensive treatment from Judge Sorkow. Furthermore, Judge

Sorkow dismissed both subjects as being “non-issues” for the Baby M case.

In speaking to the issue of informed consent, Judge Sorkow concluded that as a negligence law concept, informed consent did not have any bearing on the case at issue.

Mary Beth Whitehead’s attorneys had argued that she was incapable of giving consent to the surrogacy procedure, and thereby the resulting contract, because she was not made aware of all of the necessary facts prior to the surrogacy. For example, she was not made aware of Betsy Stern’s multiple sclerosis diagnosis. Moreover, Whitehead’s attorneys argued, “until Mrs. Whitehead felt the emotion of birth and sensed the child, she could not give informed consent at the time she signed the contract.”18 Judge Sorkow disagreed with the concepts applicability to a surrogacy contract. He wrote,

[i]nformed consent is a negligence concept predicated on the duty of a physician to disclose to a patient information that will enable the patient to

17 In the Matter of Baby M, 217 N.J. Super. 313 (1987), 398.

18 Ibid., 357.

266

evaluate, knowledgably, options available and risks attendant upon each before subjecting the patient to treatment.19

Finally, the possibility of awarding joint custody was also considered by Judge

Sorkow during the original trial. Similar to the issue of informed consent, Judge Sorkow did not believe that the facts of the case merited serious consideration of joint custody.

Judge Sorkow referenced the relationship of William Stern and Mary Beth Whitehead.

Unlike cases meriting joint custody, the two parents in the Baby M litigation were never in a relationship and were not former spouses. He described the minimal success achieved in cases where parties shared years together. Moreover, Judge Sorkow cited the case of Beck v. Beck,20 establishing the necessary criteria needed for an award of joint custody to be made.

The New Jersey Supreme Court

Shortly after the trial concluded, and Judge Sorkow ruled in favor of the Sterns awarding custody of Baby M to William Stern and terminating Mary Beth Whitehead’s parental rights, the Whiteheads decided to appeal the decision. This time, however, the

Whiteheads would have a different result after the court issued its ruling. In an opinion written by Chief Justice Sean Wilentz, the New Jersey Supreme Court considered five primary issues: the constitutional considerations afforded to family formation, the validity and enforceability of surrogacy contracts, the issue of custody of baby Melissa,

19 In the Matter of Baby M, 217 N.J. Super. 313 (1987), 356 – 357.

20 Judge Sorkow summarizes the criteria set forth in Beck v. Beck, 86 N.J. 480, 432 A.2d 63 (1981), as “1) court determination of whether the children have established such a relationship with both parents that they would benefit from joint custody; 2) are the parents fully capable of physically and psychologically fulfilling the role of a joint custodial parent; 3) each parent must be willing to accept custody; 4) each parent must exhibit a potential for cooperation in matters of child rearing.” In the Matter of Baby M, 217 N.J. Super. 313 (1987), 358.

267 the termination of Mary Beth Whitehead’s parental rights, and visitation rights of the non-custodial parent.

Similar to the trial court, the New Jersey Supreme Court addressed the constitutional questions raised by both the Sterns and the Whiteheads. The Court concluded that both the Sterns and the Whiteheads cited the same group of cases in support of their arguments, even as they argued for very different outcomes and asserted different rights. The Court wrote,

[t]he source of their constitutional arguments is essentially the same: the right of privacy, the right to procreate, the right to the companionship of one’s child, those rights flowing either directly from the fourteenth amendment or by its incorporation of the Bill of Rights, or from the ninth amendment, or through the penumbra surrounding all of the Bill of Rights.21

For the purposes of the litigation, William Stern claimed support for his arguments based on the constitutionally protected right to privacy. In contrast, Mary Beth Whitehead, citing the same cases, asserted a constitutionally protected right to the companionship of one’s child.

In response to William Stern’s claim that the right to privacy protected his ability to enter into surrogacy contracts, the Court determined that the constitutional right had not yet extended so far. The Court wrote that cases, such as Griswold v. Connecticut, did not apply to the Baby M case because they dealt with the right not to procreate.

While the trial court determined that the surrogacy contract was enforceable, the

Supreme Court of New Jersey concluded the opposite. The court found that there were two reasons to find surrogacy contracts invalid in the state of New Jersey. First, the

21 In the Matter of Baby M, 109 N.J. 396 (1988), 447.

268 agreements violated existing state laws regulating adoption procedures. Second, the

Court found that surrogacy agreements were contrary to public policy.22

In analyzing the surrogacy agreement, the Court examined the fundamental purpose of the contract. Unlike the trial court, the Supreme Court of New Jersey did not believe that the surrogacy arrangement and payment were for services and not for the adoption of the child. Moreover, the Court was troubled by the terms of the agreement where Mary Beth Whitehead irrevocably agreed to relinquish custody of the child. This irrevocable agreement took effect before the child was even conceived. The Court believed that this was inconsistent with the existing law governing private adoption.

With regards to New Jersey statutory law, the Court determined that “the surrogacy contract conflict[ed] with: (1) laws prohibiting the use of money in connection with adoptions; (2) laws requiring proof of parental rights is ordered or an adoption is granted; and (3) laws that make surrender of custody and consent to adoption revocable in private placement adoptions.”23 By examining each of these elements, the Court used adoption legislation as controlling law in surrogacy agreements. In this manner, since

New Jersey did not have specific legislation concerning surrogacy, adoption legislation would be construed at effectively governing the practice. In particular, the Court cited

N.J.S.A. 9: 3-54 for legislative authority in restricting the practice.24

22 In the Matter of Baby M, 109 N.J. 396 (1988).

23 In the Matter of Baby M, 109 N.J. 396 (1988), 423.

24 N.J.S.A. 9:3-54 contained the following language, “a. No person, firm, partnership, corporation, association or agency shall make, offer to make or assist or participate in any placement for adoption and in connection therewith (1) Pay, give or agree to give any money or any valuable consideration, or assume or discharge any financial obligation; or (2) Take, receive, accept or agree to accept any money or any valuable consideration. 269

In addition, the Supreme Court of New Jersey was particularly concerned with ramifications associated with public policy considerations. The Court stated, “[t]he 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 interest shall determine custody.”25 Citing Sheehan v. Sheehan, the Court continued

“[whatever the agreement of the parents, t]he ultimate determination of custody lies with the court in the exercise of its supervisory jurisdiction of parens patriae.”26 Further, the

Supreme Court of New Jersey rejected the trial court’s assertion that the best interest of the child standard could be met when considering the adoption proceedings supervised by the court. The Court stated, “[t]he fact that the trial court remedied that aspect of the contract through the “best interests” phase does not make the contractual provision any less offensive to the policy of this State.”27 This determination places a premium on traditional notions of the family and its relationship to the child’s best interests.

The Supreme Court of New Jersey also reviewed the public policy standards of the State in considering what has traditionally been understood as the best interest of the child. The Court understood the longstanding public policy of the State of New Jersey to weigh in favor of permitting both natural parents to retain custody of the child. Finding

b. The prohibition of subsection a. shall not apply to the fees or services of any approved agency in connection with a placement for adoption, nor shall such prohibition apply to the payment or reimbursement of medical, hospital or other similar expenses incurred in connection with the birth or any illness of the child, or to the acceptance of such reimbursement by a parent of the child. c. Any person, firm, partnership, corporation, association, or agency violating this section shall be guilty of a high misdemeanor.” In the Matter of Baby M, 109 N.J. 396 (1988), 423. 25 In the Matter of Baby M, 109 N.J. 396 (1988), 434.

26 Ibid.

27 Ibid.

270 authority in the purpose of the adoption act, the Court believed that the child would be better suited and happier if both parents were involved in the child’s life. Moreover, the

Court’s rationale included a statement rationalizing this premise. “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 life with as much peace and security as possible, finds itself immediately in a tug-of-war between contending mother and father.”28

The application of this analysis is partially erroneous. Awarding both natural parents custody in this case did not promote “peace and security.” The child’s natural mother and father were not married, nor were they in any sort of romantic partnership before, during or after conception. By granting both the natural father and natural mother custody of the child, the Court did not promote a life of “peace and security” for Melissa.

The relationship between Mary Beth Whitehead and the Sterns was and would always be contentious. However, it is worth noting that by establishing a policy of not recognizing surrogacy arrangements, the Court promotes its asserted policy by making it less likely that couples would pursue surrogacy contracts and thereby avoiding contentious litigation.

In reviewing the advice and examination procedures afforded to Mary Beth

Whitehead before and during the pregnancy, the Court concluded that they fell well short of the standards expected by the state of New Jersey. As the Court noted, Mary Beth

Whitehead did not receive adequate legal advice as she evaluated and discussed the surrogacy agreement. An attorney recommended by the Infertility Center gave the only legal advice that Mrs. Whitehead received prior to entering into the agreement. “His

28 In the Matter of Baby M, 109 N.J. 396 (1988), 434.

271 services consisted of spending one hour going through the contract, and answering their questions.”29 With only one hour to understand a complex agreement, surrendering parental rights to a child not yet conceived, the justices believed Mrs. Whitehead could not adequately appreciate the issues at stake and the ramifications of her actions.

The advice and oversight did not fail merely in terms of legal instruction and consultation. Mary Beth Whitehead was not given proper medical advice during her evaluation prior to the surrogacy agreement and during the pregnancy. Following her initial assessment by psychologists evaluating her ability to undergo the pregnancy and the separation from the child, she was only informed that she “passed” the exam. For the

Stern’s part, they never asked to see the results of the examination. Troubling, concluded the Court, given that the Sterns exhibited a great amount of concern about Mary Beth

Whitehead’s ability to relinquish the child at the conclusion of the agreement when they had discussed the surrogacy arrangement with the Infertility Center.30

Even more disconcerting to the Court was the Infertility Center’s apparent lack of concern regarding the psychologist’s report on Mrs. Whitehead. The Court wrote,

“[a]lthough the evaluation was made, it was not put to any use, and understandably so, for the psychologist warned that Mrs. Whitehead demonstrated certain traits that might make the surrender of the child difficult and that there should be further inquiry into this issue in connection to the surrogacy.”31 The Infertility Center did not follow up on this

29 In the Matter of Baby M, 109 N.J. 396 (1988), 436.

30 Ibid., 437.

31 Ibid.

272 recommendation and did not inform the Sterns that Mary Beth Whitehead exhibited signs that might make her ability to fulfill the terms of the agreement difficult, if not impossible. This behavior indicated to the Court that the primary motive of the Infertility

Center was driven by profits and that it did not take adequate steps to minimize risks associated with the practice.

The most troubling aspect of the surrogacy agreement to the justices was its “total disregard of the best interests of the child.”32 The Sterns were never questioned or evaluated by the Infertility Center. Their motivations were never investigated. They did not have to submit to psychological evaluations and they were never asked to demonstrate the financial capacity to care for the child. It is not that the Sterns would not have been able to demonstrate capacity and ability to parent the child of the resulting surrogacy agreement. Instead, the lack of any investigation by the Center into their fitness to parent the child concerned the justices. As the Court stated, “[t]here is not the slightest suggestion that any inquiry will be made at any time into 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.”33

Finally, an additional factor in determining the consistency of surrogacy agreements with public policy, the Court analyzed the transaction itself. According to the trial court, the surrogacy agreement was for services rendered by the surrogate mother.

The New Jersey Supreme Court disagreed. The justices concluded that a surrogacy agreement was for either the sale of a child or the sale of a mother’s right to custody of

32 In the Matter of Baby M, 109 N.J. 396 (1988), 437.

33 Ibid.

273 the child and neither were permissible under New Jersey law. To make this determination, the Court first examined the similarities and differences between surrogacy arrangements and adoption.34

The Court distinguished adoption from surrogacy contracts in how each responded to market forces. The practice of adoption, the Court concluded, could continue without payment or consideration exchanged between the parties because the motivation of the natural mothers were different in each case. In cases of adoption, a number of possible motives might exist for the natural mother to conclude that adoption afforded the best alternative to raising the child. The mother may not be able to financially support the child. The mother may not be at a place in her life where she can care for a child. Surrogacy, on the other hand, was motivated by monetary exchange.

The Court argued, “[a]ll parties concede that it is unlikely that surrogacy will survive without money.”35 In this sense, the Court found that motivations driving adoption were more consistent with public policy, and factors driving surrogacy were contrary to public policy.

The practice of surrogacy differs from adoption in other respects. The Court found that unlike adoption, the exchange of promises for a woman’s ability to reproduce occurred before conception. This is starkly different from a traditional adoption where the exchange occurs following birth. Moreover, the financial considerations for the natural mother are different in a surrogacy contract. The Court concluded that, “[t]he built-in financial pressure of the unwanted pregnancy and the consequent support

34 In the Matter of Baby M, 109 N.J. 396 (1988), 438.

35 Ibid.

274 obligation do not lead the mother to the highest paying, ill-suited, adoptive parents.”36

Instead, the Court believed, that “[s]he 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.”37 Under this analysis, the Court has placed a high value on what it perceives is the best interest of the child. However, the Court does not establish a correlation between parents with means and willing to pay a surrogate with adoptive parents who are unable and lack the ability to parent the child. Moreover, by adopting this approach, the Court is affording a presumption of either incompetence or ill-motives on the natural father and adoptive mother.

Further, the Court is concerned with the way in which a surrogacy agreement operates and the time at which a natural mother must make a decision regarding her parental rights. The justices did not believe that surrogate mothers have adequate information at the time they must make a decision on whether to enter an agreement or not. To add to this complication, any decision made by the mother to enter into a surrogacy agreement is permanent and cannot be undone.38

Finally, the Court addressed what it characterizes as the primary distinction between adoption and surrogacy forwarded by proponents of surrogacy contracts. Many argue that the intention and voluntariness of the action support a legal distinction between the two practices. As the Court suggests, “[t]he main difference, that the unwanted

36 In the Matter of Baby M, 109 N.J. 396 (1988), 438.

37 Ibid.

38 Ibid.

275 pregnancy is unintended while the situation of surrogacy is voluntary and intended, is really not significant.”39 Instead of favoring the surrogacy contract, the fundamental features of each support greater similarity than difference. In both instances, the issue of concern is the same – the circumstances of the mother. The court states, “[i]t appears that the essential evil is the same, taking advantage of a woman’s circumstances (the unwanted pregnancy or the need for money) in order to take away her child, the difference being one of degree.”40 In other words, by applying the adoption legislation and the purposes pronounced in its legislative history, the Court believed that surrogacy raised the same concerns that were addressed by the legislature regarding payment for adoptive children.

In addition to considering the controlling statutes in the state of New Jersey and the public policy arguments surrounding surrogacy, the Court examined constitutional claims raised by both the Sterns and the Whiteheads. The Court summarized their arguments as follows, “[t]he source of their constitutional arguments is essentially the same: the right to privacy, the right to procreate, the right to the companionship of one’s child, those rights flowing either directly from the fourteenth amendment or by its incorporation of the Bill of Rights.”41 The specific rights that each party is claiming differ in that the Sterns argue that their right to procreation would be infringed if the surrogacy agreement were held unenforceable, and the Whiteheads contending that Mary

39 In the Matter of Baby M, 109 N.J. 396 (1988), 439.

40 Ibid.

41 Ibid., 447.

276

Beth’s companionship with her child would be infringed if the surrogacy agreement were enforced.42

In addressing the Stern’s assertion that their right to procreate would be infringed if the surrogacy agreement were held unenforceable, the Court examined existing law defining the right to privacy. Considering landmark Supreme Court cases, such as Meyer v. Nebraska, Griswold v. Connecticut, and Roe v. Wade, the New Jersey Supreme Court concluded that the right asserted by the Sterns was one of procreation and not the ability to prevent procreation.43 Moreover, the Court found that Mr. Stern’s rights to procreation had not been infringed in this instance. The Court stated, “Mr. Stern has not been deprived of that right. Through artificial insemination of Mrs. Whitehead, Baby M is his child.”44 The Court continued,

[t]o assert that Mr. Stern’s right to procreation gives him the right to custody of Baby M; it would be to assert that Mrs. Whitehead’s right of procreation does not give her the right to the custody of Baby M; it would be to assert that the constitutional right of procreation includes within it a constitutionally protected contractual right to destroy someone else’s right of procreation.”45

In this statement the Court is suggesting that it cannot consistently apply the claims forwarded by Mr. Stern with the arguments he has presented for applying specific interpretations of constitutional law.

42 In the Matter of Baby M, 109 N.J. 396 (1988), 447.

43 Ibid.

44 Ibid., 448.

45 Ibid.

277

The New Jersey Supreme Court’s ruling reversed the trial court’s decision. Mary

Beth Whitehead had her parental rights reinstated. However, she was not awarded custody of Baby M. Instead, she was granted visitation rights. As a result, Betsy Stern was unable to adopt Baby M. Importantly, the case of Baby M now stands for the premise that surrogacy agreements in the state of New Jersey are not enforceable due to existing laws on adoption and surrogacy contracts implications for public policy.

Attempt to Create Uniform State Laws

The Baby M case focused public and legislative attention on the issues of reproductive technology in a way that previously had not existed. Both quantitative and qualitative evidence demonstrate the impact of the Baby M case on public and legislative consciousness. Susan Markens, in Surrogate Motherhood and the Politics of

Reproduction, discusses the incidence of surrogacy in major newspapers between 1980 and 2002. By exploring coverage of surrogacy in the New York Times, Los Angeles

Times, and the Washington Post, Markens discovered the topic of surrogacy was mentioned in articles produced by these news outlets less than 25 times per year until

1986. Coverage of surrogacy contracts peaked, between 1987 and 1988, with over 270 articles considering the controversial topic. The following year, 1989, witnessed a precipitous drop in media attention—with fewer than 40 news articles covering the issue of surrogacy arrangements.46

Contrary to the way the Baby M case has been portrayed in the media and the scholarship; it was not the first legal case arising from a surrogacy contract in the United

States. Yet, the Baby M court battle is significant and singular in American history

46 Susan Markens, Surrogate Motherhood and the Politics of Reproduction (Berkeley: University of California Press, 2007). 278 because of its influence and impact. The shockwaves of the Baby M decision were felt across the United States, and have remained, ever since the case became public in 1986.

Indeed, when the story of the Baby M case first received widespread attention in the media, most of the American public was unaware of the practice and the medical technology that enabled it. In 1986, surrogacy was relatively uncommon in the United

States. In 1988, a few years after Baby M was first mentioned in newspapers, it is estimated that fewer than 600 births in the United States were the result of surrogacy arrangements. The relative obscurity of the technology and the practice, however, would not last. By the mid-1990s, conservative estimates place the number of total surrogate births in the United States at approximately 6,000.47

The legislative response to the issue of surrogacy could be considered somewhat constrained. According to Susan Markens’ study, by 1992, fifteen states had passed laws targeting surrogacy contracts and surrogacy arrangements. Since 1992, Markens notes that only two additional states and Washington, D.C. have taken up the question of surrogates and public policy. This lack of state action may be seen in the number of states failing to adopt or enact laws promoted by the Uniform Law Commission.

One of the legal system’s first attempts to confront the challenges of advancing medical science’s impact on fertility treatment occurred in 1973 when the Uniform Law

Commission (ULC) explored the issue of artificial insemination and paternity. The ULC is a nonpartisan organization charged with designing laws to promote uniformity among the states. In particular, the ULC often seeks to examine areas of statutory law where states take inconsistent approaches or the prevailing approach is unclear – leading to

47 Susan Markens, Surrogate Motherhood and the Politics of Reproduction (Berkeley: University of California Press, 2007). 279 uncertainty and uneven results in application. Established in 1892, the ULC is comprised of lawyers qualified to practice law, and members may be lawyers, legislators, judges, or law professors.48

The process to draft uniform laws is often arduous and convoluted. Within the commission, the process is initiated with the Scope and Program Committee. Potential areas of the law that might benefit from uniformity or clarity are examined and researched.49 When the committee determines a particular area of the law might benefit from the drafting of a uniform law, the Scope and Program Committee forwards the issue to the Executive Committee. The Executive Committee meets and determines whether to approve the recommendation of the Scope and Program Committee. At this point in the process, a drafting committee of commissioners is formed. The debate and revision process of proposed uniform drafts may take years. Draft acts are only submitted to the entire ULC for debate at annual meetings. At the annual meetings, each proposal is examined section by section by the Committee of the Whole. Only after a draft proposal has been debated at a minimum of two annual meetings will a draft act be considered for adoption. The process, however, does not end with adoption by The Committee of the

48 Uniform Law Commission, “About the ULC,” Last Accessed April 12, 2015, http://www.uniformlaws.org/Narrative.aspx?title=About%20the%20ULC.

49 The following is some of the current criteria for the Uniform Law Commission to consider new Uniform or Model Acts: (1) a proposed project must be within the scope afforded to state legislatures by the United States constitution; (2) the proposed project must be consistent with the goals of the Uniform Law Commission, in other words “to promote uniformity in the law among the several States on subjects where uniformity is desirable and practicable;” (3) there must be a clear objective or need for the proposed act; (4) there should be a “reasonable probability that an act, when approved, either will be accepted and enacted into law by a substantial number of states or, if not, will promote uniformity indirectly;” and (5) the public will benefit from the adoption of the uniform or model law. For more information on the criteria for consideration of new Uniform or Model Acts see Uniform Law Commission, “Criteria for New Projects,” Last Accessed April 12, 2015, http://www.uniformlaws.org/Narrative.aspx?title=Criteria%20for%20New%20Projects. 280

Whole. Once The Committee of the Whole adopts the proposed draft, the draft must be accepted by a minimum of twenty of the state representatives at the ULC. Finally, at this point in the process, a draft proposal becomes a Uniform or Model Act. The recently approved Uniform or Model Act is then presented to the states for consideration.

Uniform and Model Acts are not binding on the states, and state legislatures must adopt the Uniform or Model Act as part of the state’s statutory code. The process of drafting uniform legislation means that this particular mechanism is ill suited to quickly respond to societal changes or developments in medical science.

The first attempt by the ULC to address issues involving family construction took place in 1973. The Uniform Parentage Act did not specifically address the issue of surrogacy, however, the commissioners did feel obligated to respond to growing changes in the area of family formation and the law. In particular, the drafting committee inserted a section addressing a very precise issue arising from artificial insemination. Prior to the

Uniform Parentage Act of 1973, states were inconsistent or simply did not address the issue of who would be the father of a child arising from the use of artificial insemination.

For donors of semen, this meant that they potentially stood to be treated by the law as the legal father of the child resulting from their sperm donation. For married couples, this could lead to the husband of a woman who had been artificially inseminated not being recognized as the legal father. The determination of legal recognition of fatherhood could have a number of consequences; including the required payment of child support should the marriage dissolve.

The Uniform Parentage Act of 1973 addressed this issue by legally recognizing the husband of a wife artificially inseminated by another man as the natural father of the

281 child. This recognition, however, only occurred if the husband consented, in writing, to the artificial insemination. The Act also confronted the question of the donor’s status under the law. If the donor provided semen to a licensed physician, the UPA of 1973 did not consider him to be the natural father of the child.50 However, this does not address any of the other complex issues that arise legally as a result of artificial insemination. In fact, the drafting committee felt it was important to specifically address the scope of the artificial insemination provision of the Uniform Parentage Act of 1973. The committee noted in a comment to the Act, “[t]his Act does not deal with many complex and serious legal problems raised by the practice of artificial insemination. It was though useful, however, to single out and cover in this Act at least one fact situation that occurs frequently.”51 In this way, the committee demonstrated a common approach taken by regulators and policy makers in the coming years. The committee members only addressed narrow issues with minimum controversy. In the instances where policy makers or commissioners searched for greater applicability, their approaches were often not adopted and legislation was not enacted.

50 Section 5 of the 1973 Uniform Parentage Act provides: “(a) If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband’s consent must be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, and file the husband’s consent with the [State Department of Health], where it shall be kept confidential and in a sealed file. However, the physician’s failure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to inspection only upon an order of the court for good cause shown. (b) The donor of semen provided to a licensed physician for use in artificial insemination of a married woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived.” Uniform Parentage Act § 5 (1973).

51 Uniform Parentage Act (1973). 282

The National Conference of Commissioners of Uniform State Laws was compelled to make another attempt to draft additional legislation addressing changes to family law as a result of medical advancement in 1988. Consequently, the NCCUSL drafted and published the Uniform Status of Children of Assisted Conception Act.52 In the prefatory note, the commission compared the development of assisted reproductive technology to nuclear energy.53 The committee also explicitly stated that the act was to be drafted in a narrow manner and in a way that suited the best interest of the child.

Recognizing the complications of attempting to create policy concerning deeply divided issues, the committee wrote, “[i]t is likely that stringent regulatory legislation will become necessary in the near term to provide a social solution to deal with this scourge among those who are now looking with hope and expectation of fulfillment to the recent advances in medical technology. Some 600 surrogate mother arrangements have been concluded to date.”54 Nevertheless, the committee also demonstrated that traditional notions of the American family still pervaded the prism through which committee

52 The drafting committee for the Uniform Status of Children of Assisted Conception Act of 1988 consisted of: Robert C. Robinson (chair), Battle R. Robinson (drafting liaison), Bryce A. Baggett, Randall P. Bezanson, M. King Kill, Jr., Harry D. Leinenweber, Peter K. Munson, Joan G. Poulous, Orlan L. Prestegard, John W. Wagster, Paul M. Kurtz, Michael P. Sullivan, and William J. Pierce. see Uniform Status of Children of Assisted Conception Act (1988).

53 The committee wrote, “[n]uclear energy was at once a breakthrough into untold wonders beyond the wildest hopes and dreams of its mentors, yet its use and development has been resisted by some as an uncontrollable force which threatens incomprehensible destruction. Nuclear energy, a force like many others, can be used for good and for evil, but once created it remains for the prudence or folly of mankind to direct its course. It is not likely ever to be eradicated. Extraordinary progress in medical technology has produced veritable miracles many of which have been feared and rejected at first, with a master race contemplated by genetic engineering, vascularizing corpses with modern respirators, producing babies in test tubes, yet nuclear energy, genetic engineering, respirators, petrie dishes and other advances developed by human ingenuity are here to stay. Once out, the genie will never return to the bottle.” Uniform Status of Children of Assisted Conception Act (1988).

54 Uniform Status of Children of Assisted Conception Act (1988). 283 members viewed the matter of surrogacy contracts. The committee members included the following statement, “[t]here was great urgency on the part of the Drafting Committee to provide a child with two parents, and this established a presumption of paternity in the husband of a married woman who bears a child through assisted conception placing the burden on the husband to show lack of consent.”55 This statement demonstrates that notions of a two parent, heteronormative household still dominated the thinking of committee members. In their attempt to created policy options, they sought to create solutions that mimicked or reinforced this family construction.

Unlike the Uniform Parentage Act of 1973, the Uniform Status of Children of

Assisted Conception Act explicitly addresses the question of surrogacy and surrogacy contracts. Interestingly, however, the USCACA allows for two different approaches to be adopted by state legislatures. In the Commission’s comments, the committee members purposely acknowledged the difficulty in establishing regulations governing surrogacy. The commission noted, “[b]ecause of the significant controversy concerning the appropriateness of arrangements under which a woman agrees to bear a child on behalf of another woman, this Act proposes two alternatives.”56 Under the first approach, a state would permit individuals to enter into surrogacy arrangements. Yet, the first approach adopted by the USCACA was still limited in scope. For a surrogacy contract to be valid a court would be required to approve it before conception occurred. If a court had not sanctioned the agreement it would be considered void. Interestingly, if a court did not approve the agreement, and the surrogate was married, and the husband of the

55 Uniform Status of Children of Assisted Conception Act (1988).

56 Ibid. 284 surrogate signed the agreement, the surrogate’s husband would be considered the child’s natural father – irrespective of the gametes used to conceive the child. Under the second option, surrogacy agreements would be treated as void by any state adopting the alternative.57

The manner in which parties should petition the court to approve a surrogacy contract was enumerated within the Uniform Status of Children of Assisted Conception

Act of 1988. The prospective parents and the surrogate would have been required to file the petition with the court. In addition, the husband of the surrogate, if she was married, must join the petition. A copy of the surrogacy agreement had to be attached to the petition. After reviewing the agreement, the court could enter an order “approving assisted conception for a period of 12 months after the date of the order.”58 In addition, the court was provided guidance as to the type of factors it should consider when deciding if it would approve a surrogacy petition.59

57 The drafting committee under the second option acknowledges, “. . . that some such agreements will continue to be achieved even though they are not enforceable at law. Therefore, it makes provision for the maternity and paternity of children who are born pursuant to such agreements.” Uniform Status of Children of Assisted Conception Act (1988).

58 Uniform Status of Children of Assisted Conception Act (1988).

59 “(1) the court has jurisdiction and all parties have submitted to its jurisdiction under subsection (e) and have agreed that the law of this State governs all matters arising under this [Act] and the agreement; (2) the intended mother is unable to bear a child or is unable to do so without unreasonable risk to an unborn child or to the physical or mental health of the intended mother or child, and the finding is supported by medical evidence; (3) the [relevant child-welfare agency] has made a home study of the intended parents and the surrogate and a copy of the report of the home study has been filed with the court; (4) the intended parents, the surrogate, and the surrogate’s husband, if she is married, meet the standards of fitness applicable to adoptive parents in this State; (5) all parties have voluntarily entered into the agreement and understand its terms, nature, and meaning, and the effect of the proceeding; (6) the surrogate has had at least one pregnancy and delivery and bearing another child will not pose an unreasonable risk to the unborn child or to the physical or mental health of the surrogate or the child, and this finding is supported by medical evidence; (7) all parties have received counseling concerning the effect of the surrogacy by [a qualified health-care professional or social worker] and a report containing 285

The drafters of the Uniform Status of Children of Assisted Conception Act also considered the manner in which an agreement might be terminated. Under section six of the USCACA, any party to the agreement may terminate the surrogacy contract by simply providing written notice of their wish to terminate the agreement, and providing a copy of the written notice to the court. This termination of the agreement had to occur before the surrogate became pregnant as a result of the agreement. In addition, a surrogate who has provided an egg could terminate the agreement by filing a written notice with the court within 180 days of the last insemination. This would allow a surrogate to decide that she wanted to keep the child resulting from the surrogacy agreement. The model act also provided that “the surrogate is not liable to the intended parents for terminating the agreement,” assuming she follows the guidelines of the

USCACA.

Under the notes of the drafters, the men and women who crafted the USCACA intended the provision to allow for parties to withdraw from an arrangement before the other party’s interests would become “unduly prejudiced by such termination.” In this manner, a pregnancy has not yet occurred. While the drafter’s note conceded the intended parents have an expectation interest during this time, the drafters believed that this is little different from the interest they might have if “they were attempting to create a pregnancy through traditional means.” While this analysis might be partly true, it also

conclusions about the capacity of the parties to enter into and fulfill the agreement has been filed with the court; (8) a report of the results of any medical or psychological examination or genetic screening agreed to by the parties or required by law has been filed with the court and made available to the parties; (9) adequate provision has been made for all reasonable health-care costs associated with the surrogacy until the child’s birth including responsibility for those costs if the agreement is terminated pursuant to Section 7; and (10) the agreement will not be substantially detrimental to the interest of any of the affected individuals.” Uniform Status of Children of Assisted Conception Act (1988). 286 reflects a view that continued to treat women as malleable vehicles for procreative purposes. The drafters failed to consider the amount of time a surrogate may have already dedicated to the process. Moreover, surrogacy often requires the surrogate to undergo a significant regiment of fertility drugs to help increase the chances of conception. This understanding of surrogacy discounts the hardship a surrogate may be forced to endure to help facilitate a pregnancy on behalf of the intended parents.

Moreover, the termination section provision allowed the surrogate to cancel the agreement provided she gave notice within 180 days after the last insemination. This construction further denied the surrogate the ability to make an informed decision. As the drafters noted, “[s]ubsection (b) gives a surrogate who has provided the egg for the assisted conception 180 days after the last insemination to recant and decide to keep the child as her own.” Under this subsection the surrogate must decide whether or not she will keep the child before the child is born. The average pregnancy lasts typically 283.4 days, which would require the decision well before the child’s birth. The drafters believed this to represent a compromise between two extreme arguments. One argument contended the surrogate should be allowed to recant at any point, including a period following the birth of the child. Another argument advocated the position that the surrogate entered into the contract knowingly and voluntarily, and should not be allowed to recant after a judge accepted the contract.

The USCACA also provided for the determination of parentage. Under the

USCACA, the intended parents would be considered the legal parents of the child. The

Act explicitly choose to disallow the surrogate and her husband parenting rights to the child, assuming the surrogate did not seek to terminate the surrogacy agreement pursuant

287 to the provisions of the USCACA. If the surrogate terminated the agreement, then the surrogate would have been considered the mother of the child, and if she was married, her husband would be considered the father. The Act also provided a legal mechanism to have the birth certificate changed to reflect the intended parents as the child’s natural parents on the birth certificate and other legal documents.

Finally, the USCACA provided for some miscellaneous legal rules dealing with surrogacy arrangements. First, the USCACA expressly allowed for the payment of the surrogate in consideration of her services in bearing the child. Second, the agreement

“may not limit the right of the surrogate to make decisions regarding her health care or that of the embryo or fetus.” If the surrogate became married during the intervening period, her marriage would not affect the status of the surrogacy contract. Finally, the

USCACA provided that any child born within a 300 day window following attempts to conceive would be presumed to be a result of assisted conception, and fall under the provisions of the USCACA.

In 2002, the Uniform Parentage Act was revised to account for changes in

American society and developments in science.60 In the revised UPA, the issue of surrogacy was addressed in the Act itself. However, the drafters acknowledged the controversial nature of the topic. Citing the low rate of adoption of the Uniform Status of

Children of Assisted Conception Act, the drafters of the revised UPA decided to bracket the entire section dealing with surrogacy arrangements. In this manner, the drafters

60 The drafting committee for the Uniform Parentage Act Revisions consisted of: Harry L. Tindall (chair), Jack Davies, Frank W. Daykin (committee on style Liaison), Gail H. Hagerty, Lyle W. Hillyard, Peter K. Munson, Arthur H. Peterson (Enactment Plan Coordinator), Elwaine F. Pomeroy, John J. Sampson (reporter). In addition, individuals appointed Ex Officio were: John L. McClaugherty (president) and Robert Robinson (division chair). 288 hoped it would not discourage states from adopting the other provisions of the UPA if they found the provisions of the UPA concerning surrogacy unpersuasive or too controversial. In this manner, the states could simply choose not to enact that section of the UPA. The number of states adopting either the 1973 UPA or the 2002 UPA is illustrated in Figure 1. In addition, the UPA changed the terminology it used to discuss surrogates. Electing to resist using the term “surrogate mother,” the UPA employed the term “gestational mother.” This change was a result of concerns that surrogate mother did not accurately reflect the nature of the arrangement.61

61 The UPA states, “Article 8’s replacement of the USCACA terminology, “surrogate mother,” by “gestational mother” is important. First, labeling a woman who bears a child a “surrogate” does not comport with the dictionary definition of the term under any construction, to wit: ‘a person appointed to act in the pace of another’ or ‘something serving as a substitute.’ The term is especially misleading when “surrogate” refers to a woman who supplies both ‘egg and womb,’ that is, a woman who is genetic as well as gestational mother. That combination is now typically avoided by the majority of ART practitioners in order to decrease the possibility that a genetic/gestational mother will be unwilling to relinquish her child to unrelated intended parents. Further the term “surrogate” has acquired a negative connotation in American society, which confuses rather than enlightens the discussion. In contrast, term “gestational mother” is more accurate and more inclusive. It applies to both a woman who through assisted reproduction performs the gestational function without being genetically related to a child, and a woman is both the gestational and genetic mother.” 289

Figure 1. Uniform Parentage Act Enactment

The individual provisions of the 2002 revisions to the UPA largely track the

USCACA, with one major exception. The 2002 UPA did not provide for two alternatives regarding surrogacy for adoption by the states. Instead, the 2002 UPA explicitly rejected an approach that allowed states to ban the use of surrogacy arrangements. In the drafters’ comments, they stated, “[t]he scientific state of the art and the medical facilities providing the technological capacity to utilize a woman other than the woman who intends to raise the child to be the gestational mother, guarantee that such agreements will continue to be written.” In this manner, the drafters of the 2002 UPA concede that the use of surrogacy contracts will persist. In other words, the drafters believe that states should choose to regulate this practice rather than try to abolish it. In addition, the 2002

290

UPA operated under different assumptions than those utilized by the drafters of the

USCACA in 1988. Specifically, the authors of the 2002 UPA no longer assumed that the surrogate will be genetically related to the child. Indeed, the authors of the 2002 UPA assumed that the child would not be genetically related to the surrogate. The drafters stated, “[i]n contrast to the USCACA (1988) § 1(3), there is no requirement that at least one of the intended parents be genetically related to the child born of a gestational agreement. Similarly, the likelihood that the gestational mother will also be the genetic mother is not directly addressed in the new Act, while the USCACA (1988) apparently assumed that such a fact pattern would be typical. Experience with the intractable problems caused by such a combination has dissuaded the majority of fertility laboratories from following that practice.” To reinforce this point, the drafters elected to cite the case of Baby M. In this way, Baby M, along with advancing science seems to have discouraged couples from using a surrogate in a manner similar to that of the Sterns in the Baby M case.

Less than two years after the Baby M case was decided by the New Jersey

Supreme Court, and less than four years after the controversy between the Sterns and the

Whiteheads first made headlines in the United States, another surrogacy case seized public attention regarding the growing prevalence of families created through assisted reproductive technologies. The case of Johnson v. Calvert demonstrated how the principles applied and considered in the Baby M case would affect courts across the country. In addition, the case of Johnson v. Calvert provides an example of how the typical surrogacy arrangement changed following the Baby M decision – a change to gestational agreements where the surrogate is genetically unrelated to the child.

291

Mark and Crispina Calvert were a married couple living in California in 1989.

While the Calverts desperately desired to start a family, they were prevented from conceiving a child due to Crispina’s hysterectomy in 1984. The hysterectomy removed

Crispina’s uterus; however, the surgical procedure did not harm her ovaries, which were otherwise healthy and capable of producing eggs.62

It wasn’t until 1989 that the Calverts were able to once again seriously consider having a child. That year they were introduced to Anna Johnson, who had heard of

Crispina’s inability to become pregnant through a coworker. Struck by their story, Anna agreed to serve as Mark and Crispina’s surrogate. The Calverts and Johnson entered into a surrogacy contract on January 15, 1990. This agreement, and the resulting surrogacy, however, would be very different from the circumstances surrounding Baby M. Unlike

Mary Beth Whitehead, Anna Johnson would not be genetically related to the child she was carrying for the Calverts. As Crispina Calvert’s ovaries were still functioning properly, the agreement between the Calverts and Johnson called for the creation of an embryo stemming from Crispina’s egg fertilized by Mark’s sperm.

As is typically the case with surrogacy contracts, the contract signed by the

Calverts and Johnson called for Anna to renounce her parental rights to the child. In consideration of her “services,” Mark and Crispina agreed to compensate Anna in the sum of $10,000. Furthermore, Mark and Crispina contracted to pay to insure Anna’s life in the amount of $200,000.

On January 19, 1990, Anna Johnson was implanted with a zygote created by the

Calvert’s gametes. Within a month of the procedure to implant the zygote, physicians

62 Johnson v. Calvert, 5 Cal.4th 84 (1993). 292 determined by ultrasound that Johnson was pregnant. It did not take long after the pregnancy was confirmed for the Calverts and Johnson to begin disagreeing about numerous aspects of the pregnancy. Disputes between the Calverts and Johnson started with the revelation that Anna had not disclosed several previous miscarriages and stillbirths to the Calverts. Moreover, Johnson was disappointed in the Calverts failure to fulfill their obligation to furnish an insurance policy covering Johnson’s life.

Tensions between the couple and Johnson grew in June of 1990 when Anna went into premature labor. According to Anna, the Calverts were neither supportive nor helpful through the ordeal. By July, all good will between the parties had dissipated.

Anna mailed a letter to Mark and Crispina demanding they perform their obligation under the contract and submit the payment of all remaining money owed. While the contract provided the last payment to be made to Anna following the birth of a child, Anna demanded this payment be rendered before the birth or she would refuse to relinquish the child.

In August, before the child was even born, the Calverts decided to bring a lawsuit against Johnson. Hoping to preempt any complications in the coming months, the

Calverts sought a court declaration affirming their parental rights. Johnson countered with her own lawsuit seeking parental rights.

On September 19, 1990, Anna Johnson gave birth to the child. Following the child’s birth, genetic testing confirmed that the Calverts were the genetic mother and father of the baby. By October of 1990, the Calverts and Johnson were enmeshed in a trial to determine which party would be considered the natural parents of the child. The case spanned several years, with the original court hearing the dispute siding with Anna.

293

However, the case was appealed to the California Supreme Court to dispositively settle the question.

On May 20, 1993, the California Supreme Court issued an opinion in the case upholding the surrogacy agreement. Such a proclamation ran directly counter to the New

Jersey Supreme Court’s decision in Baby M. However, the different outcome and legal reasoning shouldn’t be surprising. After all, the Calvert case involved a different set of factual circumstances and a different set of applicable laws.

The court in Johnson v. Calvert examined a distinct set of issues. The Court described these issues in the opinion, writing:

[w]hen, pursuant to a surrogacy agreement, a zygote formed of the gametes of a husband and wife is implanted in the uterus of another woman, who carries the resulting fetus to term and gives birth to a child not genetically related to her, who is the child’s “natural mother” under California law? Does a determination that the wife is the child’s natural mother work a deprivation of the gestating woman’s constitutional rights? And is such an agreement barred by any public policy of this state?63

Both Anna Johnson and the Calverts proposed the Court examine these questions under very different interpretations of how to apply the factual setting to the law of California.

As the Court summarized, “Anna, of course, predicates her claim of maternity on the fact that she gave birth to the child. The Calverts contend that Crispina’s genetic relationship to the child establishes that she is his mother.”64 Ultimately, the Court rejected both approaches advanced by the parties.

The California Supreme Court instead chose to examine the Johnson v. Calvert case in light of the Uniform Parentage Act, which was adopted by the state of California

63 Johnson v. Calvert, 5 Cal.4th 84 (1993), 87.

64 Ibid., 89.

294 in 1975. As mentioned above, the Uniform Parentage Act of 1973 did not specifically address the issue of surrogacy. In fact, the Court acknowledged that the act did not directly resolve the issues before the Court. The Court stated, “[p]assage of the Act clearly was not motivated by the need to resolve surrogacy disputes, which were virtually unknown in 1975. Yet it facially applies to any parentage determination, including the rare case in which the child’s maternity is in issue.”65 As such, the Court chose to apply the framework established by the Uniform Parentage Act for deciding other questions of paternity to the facts of the surrogacy dispute.

In determining the outcome of the case, the Court admitted that both women provided ample evidence of maternity. Moreover, the Court suggested that the State of

California offered no clear legislative preference, in 1993, of either evidence determined by a blood test or evidence presented that a woman gave birth to the child as dispositive in this case. As a result, the Court felt they must inquire as to the intent of the individuals involved. The Supreme Court of California then analyzed the manner that produced the relationship between the Calverts and Anna Johnson. The Court suggested that if the

Calverts had not sought to reproduce, then the child would not exist. The Court wrote,

“[a]lthough the gestative function Anna performed was necessary to bring about the child’s birth, it is safe to say that Anna would not have been given the opportunity to gestate or deliver the child had she, prior to implantation of the zygote, manifested her own intent to be the child’s mother.”66 This method reflects the manner in which several states and jurisdictions would approach surrogacy agreements following Baby M.

65 Johnson v. Calvert, 5 Cal.4th 84 (1993), 89.

66 Ibid., 93. 295

During, and immediately following the Baby M case, a few state legislatures convened committees to address the issue of surrogacy within their state. Many of these legislative attempts were restricted to the legislative process. However, Michigan provides a unique example of a state legislator relying on external experts and advocates to provide recommendations on potential policy choices. The Baby M case provided a crystalizing event to allow Constance Binsfeld to move forward with an attempt to address reproductive technologies in the state.

At the conclusion of March 1987, a Michigan state legislator scheduled a symposium to address the complex issues arising from the development of the new reproductive technologies. The conference was the brainchild of Michigan State Senator

Constance (Connie) Binsfeld. Gathering at Meadowbrook Hall at Oakland University, in

Detroit, the meeting assembled individuals considered to be visible leaders in the national discussion involving reproductive technologies.67

The symposium’s genesis occurred several years before when State Senator

Connie Binsfeld, representing Maple City, approached Judianne Densen-Gerber to testify before a legislative hearing in the Michigan Senate. The legislative hearing concerned the abolition of the Tender Years exception to the hearsay rule by the Michigan Supreme

67 The symposium was comprised officially of eighteen participants. Among the participants were Lori Andrews of the American Bar Foundation, Father Edward Bayer of the Pope John Center, Senator Connie Binsfeld of the Michigan State Senate, Gena Corea a Freelance Journalist, Michael Cupoli of the Department of Child Development and Rehabilitation at the University of Southern Florida, Judianne Densen-Gerber of the Odyssey Institute Corporation, Christopher Flores of the Detriot-Rubican Odyssey House, an attorney from Connecticut named Cathleen Halko, Joan Hollinger of the Detroit School of Law, Professor Cyril C. Means of the New York School of Law, Michael J. Meredith of Family Dynamics – Utah, Kamran Moghissi with the American Fertility Society, Judge Donald Owens of the Ingham County Probate Court, Reverend David Rankin of the Fountain Street Church, Gloria Smith of the Michigan Department of Public Health, Nadine Taub of the Rutgers Law School, and Professor W.D. White of the University of Arkansas. 296

Court. Initially, due to family and professional obligations, Densen-Gerber declined. As

Chief Executive Officer of Odyssey International Programs (OIP), she couldn’t find the time in her schedule. The following year, Senator Binsfeld again approached Densen-

Gerber. However, this time she contacted Densen-Gerber to discuss drafting legislation that would prohibit surrogate mothering in the state of Michigan. Again, Densen-Gerber declined the Senator’s invitation due to family and professional responsibilities. Yet, she would also explain that during those years she possessed an admiration for the work of physicians aimed at treating infertility. She later wrote, “I looked favorably on the remarkable advances of modern medicine, being proud of my fellow doctors and not wishing their good works to be hampered [b]y my fellow lawyers.”68 From her writings, it is clear that Densen-Gerber was averse to impeding scientists’ progress in the medical treatment of infertility in the early 1980s.

Nevertheless, Densen-Gerber’s position would change. Looking back on her opinion concerning the new reproductive technologies, she wrote:

[i]ndeed my feminism led me to believe that within broad normative behavior a woman has a right to seek to reproduce whenever she wished; my liberal religious orientation placed no barriers to the new technologies (or so I thought) and my political conservatism led me once again to state that the least government is the safest and best way to maintain freedom for our citizens.69

If her perspective, in the early 1980s, had been shaped by her professional experience and feminist outlook, her vision shifted with intervening years to one more focused on public policy and intervention. Over time, Densen-Gerber would begin to understand the

68 Provisional Draft: Report of Michigan Task Force Assigned to Inquire Into the New Reproductive Technologies vs. The Best Interest of the Child, June 1987, Gena Corea Papers, Sophia Smith Collection, Smith College, Northampton, Mass.

69 Ibid. 297 reproductive technologies of biomedical advance as posing a greater threat to American morality than she originally imagined. She would explain in her introduction to the

Report of the Michigan Task Force, resulting from the 1987 conference, that transpiring events greatly altered her understanding of the new reproductive technologies. Events, such as, the Royal (Warnock) Commission’s Report in the United Kingdom and the April

1986 pregnancy of man, in West Germany, shifted her assessment toward one focused on regulation.

The impetus for a task force to examine reproductive technologies stagnated for several years. In 1985, Densen-Gerber contacted Senator Binsfeld. At this point, she felt that circumstances and events had changed to a degree that she was now willing to devote the time and energy into chairing a conference on a legislative response to reproductive technologies. As described by Densen-Gerber, “[t]he project design was undertaken in three stages or phases. The first was to survey a sampling of general public opinion through national magazines.”70 Consequently, the Michigan state legislature requested the Odyssey Institute Corporation of Connecticut to conduct a poll assessing the public’s attitude toward the new reproductive technologies. The goal behind commissioning the poll was “to gather information to help [the legislature] devise policies to regulate the new reproductive technologies.

Printed under the title, “Birth Poll,” the survey appeared in three national magazines – Omni, Penthouse, and the American Humanities Society. According to the symposium report, several other magazines were contacted to print the poll, but others

70 Provisional Draft: Report of Michigan Task Force Assigned to Inquire Into the New Reproductive Technologies vs. The Best Interest of the Child, June 1987, Gena Corea Papers, Sophia Smith Collection, Smith College, Northampton, Mass. 298 refused suggesting that the poll would not be of interest to their diverse readership.71

Asking 56 questions, “Birth Poll” had a modest sample-size of 400. Roughly in line with the larger population, responses to the poll included 212 women and 187 men. The overwhelming majority of respondents identified as heterosexual. Of the 400-person sample, 24 identified as bisexual, and 21 replied they considered themselves to be homosexual. Of those who completed the survey, 149 replied they were between the ages of 20 and 29. The next highest age group, comprising 117 individuals, fell between the ages of 30 and 39. All other age groups did not constitute more than 13 percent of the total respondents to “Birth Poll.” The majority of the respondents to “Birth Poll” could also be characterized as more or less educated, married and with children.72

Among the questions pertaining to surrogacy, the poll asked if a respondent strongly agreed, somewhat agreed, was neutral, somewhat disagreed, or strongly disagreed with particular questions. Forty-eight percent of respondents strongly agreed

71 Provisional Draft: Report of Michigan Task Force Assigned to Inquire Into the New Reproductive Technologies vs. The Best Interest of the Child, June 1987, Gena Corea Papers, Sophia Smith Collection, Smith College, Northampton, Mass.

72 Out of 400 responses, 181 identified themselves as married, as opposed to 162 responding that they were single or 53 categorizing themselves as separated, divorced or widowed. Of survey participants with children, 47 reported one child, 122 of those sampled reported two to four children, and 12 suggested they had five or more children. As a predominately educated group, only six reported they had less than a high school education. Of those surveyed 136 reported receiving a high school diploma, while 156 responded that they were a college graduate. An astounding 94, 23.5 percent, reported postgraduate work. In other interesting demographic categorizations of the respondents, 92 or 23 percent of those surveyed reported that they considered themselves agnostic. Another 53, or 13.3 percent, identified themselves as atheist. Of those reporting a specific faith, 66 responded as Catholic, 14 identified as Jewish, and 88 individuals of those surveyed suggested they were Protestant. Moreover, the majority of those surveyed reported stable incomes. Over 10 percent possessed incomes of over $70,000 per year. Approximately 12 percent reported incomes between $50,000 and $70,000 per year. Of those surveyed 14.3 percent replied they received incomes between $40,000 and $50,000 per year; while 14.5 percent suggested they earned between $30,000 and $40,000 per year. The single largest category of earners, at 21.8 percent, reported salaries between $20,000 and $30,000. 299 with the statement, “[a] host mother should be allowed to carry a couple’s child when the natural mother cannot.” Compared with only 18.1 percent of respondents who either somewhat disagreed or strongly disagreed with the statement, it is clear a majority of individuals polled by the Odyssey Institute felt that in medical circumstances, surrogacy was warranted. The survey yielded very different results when the question turned on a mother’s convenience. While still receiving 28.6 percent, those surveyed recorded either strongly agree or somewhat agree responses to: “A host mother should be allowed to carry a couple’s child for the convenience—not the medical necessity—of the natural mother.” The vast majority, 43.5 percent, strongly disagreed with the statement. The difference in responses between the two questions indicates that support could be found for surrogacy in cases of medical infertility, but support would likely evaporate if the surrogacy was arranged based on convenience.

In a separate question, the “Birth Poll” found overwhelming support regarding whether a husband’s sperm should be used to fertilize the egg of a surrogate. A clear majority, 66.1 percent, either strongly agreed or somewhat agreed with the statement: “If a wife is infertile, a host mother may be fertilized with the husband’s sperm.” This is in stark contrast with the 20.8 percent responding that they either somewhat disagreed or strongly disagreed with a husband’s sperm being utilized to fertilize the egg of a surrogate. This data helps crystallize the differences articulated by the poll’s questions.

Americans were largely supportive of reproductive technologies as a medical treatment for infertility to help create normative family structures.

With the public opinion poll accomplished, a conference was then scheduled from

March 27 to March 30, 1987. Prior to the conference, symposium participant Cyril C.

300

Means, a professor at New York Law School, addressed the issue of surrogacy with other seminar participants. In a letter dated, March 23, 1987, Means writes that “in its customary form, [he] regard[ed] surrogacy as an abomination.”73 As his letter continues, he explains his perception of what constitutes a customary form of surrogacy. According to Means, a customary surrogacy is an arrangement where a couple contracts with a woman to become artificially inseminated with the husband’s sperm. This type of arrangement so bothered Professor Means that he refused to even refer to the woman as a surrogate mother, instead opting to use the term— “a surrogate wife.”74

Also within that March 23 letter, Professor Means took a sharply divergent prospective on surrogacy, as compared to the majority of the law faculty in the United

States. Professor Means wrote that while the majority of action pertaining to the legality of surrogacy arrangements was constructed on the state level – generated from both legislatures and courts – he believed that a more important line of inquiry focused on the federal level. Precisely, the Thirteenth Amendment centers on the abolition of slavery and involuntary servitude in the United States. However, Professor Means believed that it extended to instances such as surrogacy. Professor Means wrote, “[t]he Framers of the

Thirteenth Amendment made it plain, in the course of their debates in Congress, that they intended to abolish and forever prohibit all manner of involuntary servitude and trafficking in human persons.”75

73 Letter from Cyril C. Means to the Coparticipants of the Symposium of Evolving Reproductive Technologies, Gena Corea Papers, Sophia Smith Collection, Smith College, Northampton, Mass.

74 Ibid.

75 Ibid. 301

The Baby M case figured prominently in Professor Mean’s analysis. He chastised

Lorraine Abraham’s handling of her court-appointed guardianship. His criticism largely centered on her decision to accept the validity of the surrogacy contract, instead of attacking it on Thirteenth Amendment grounds. Similarly, Professor Means found fault in Harold Cassidy’s performance as Mary Beth Whitehead’s attorney. Again, he criticized Cassidy for not forwarding an argument based on the thirteenth amendment. In

Professor Means words, “[t]hus we are watching the astonishing spectacle of three lawyers in an American court imitating the proverbial three monkeys: ‘See no Thirteenth

Amendment! Hear no Thirteenth Amendment! Speak no Thirteenth Amendment!’”76

Instead, Professor Means cites the United Kingdom for recognizing, in his mind, the fundamental issue of the surrogacy arrangement – that a child was being bought and sold.

Also before the start of the symposium, Senator Binsfeld contacted the law firm of Certilman, Haft, Lebow, Balin, Buckley and Kremer of New York for an opinion on the implications of federal tax law regarding surrogate parenting. In a legal memorandum, entitled, “Tax Issues Relating to Human Fertilization through Surrogate

Motherhood and In Vitro Fertilization,” attorney Robert S. Taft applied federal tax law to surrogacy contracts. He suggested,

[t]he provisions of the Internal Revenue (the “Code”) Code deal very coldly with such things as medical deductions for surrogate pregnancy, exemption for the appropriate parent, and the tax treatment of income to a surrogate mother who was under a contract to deliver a child for another couple.77

76 Letter from Cyril C. Means to the Coparticipants of the Symposium of Evolving Reproductive Technologies, Gena Corea Papers, Sophia Smith Collection, Smith College, Northampton, Mass.

77 Letter from Robert S. Taft to Senator Connie Binsfeld, March 24, 1987, Gena Corea Papers, Sophia Smith Collection, Smith College, Northampton, Mass. 302

Taft compared the treatment of the federal tax code to the position of the Catholic

Church. He suggested that the tax code similarly promoted the belief that conception through any means other than sexual intercourse was sacrilegious.78 Specifically, under

Taft’s analysis, a surrogate’s income under a surrogacy arrangement would be considered ordinary income under the code. In other words, no special treatment would be given to surrogacy contracts. This is an important observation, as it indicates the federal government was not actively using tax policy to encourage surrogacy arrangements.79

In anticipating developments in reproductive medicine and globalization to occur in the coming decades, Robert Taft turned to exploring the impact of either surrogate mothers entering the U.S. to give birth or couples with in vitro births occurring outside the United States. According to Taft, the question of taxability turned on whether the surrogacy arrangement was considered a service or a sale of goods. Under the scenario that the surrogate mother resided and gave birth outside of the United States, if the IRS determined the surrogacy arrangement to be a service, little of the income could be subject to U.S. federal income tax provisions. The tax position of the surrogate mother might even be more favorable if the surrogacy arrangement was determined to be a sale

78 Letter from Robert S. Taft to Senator Connie Binsfeld, March 24, 1987, Gena Corea Papers, Sophia Smith Collection, Smith College, Northampton, Mass.

79 The discussion of tax policy also led to the treatment of the surrogacy arrangement as equivalent to any other home business. For example, Taft concluded that if the surrogate were to incur expenses associated with the pregnancy, she would be able to deduct those expenses assuming “the Internal Revenue Service will accept the theory that she is carrying the fetus for a fee as part of a trade or business.” Regardless, Taft asserted that a surrogate mother could deduct expenses up to the “adjusted gross income plateau under Section 212, as expenses incurred in the production of income. Less clear was what type of expense might be deductible under this analysis. Taft questioned if a “surrogate mother [may] deduct the cost of her residence as a ‘home-office’ or the cost of her automobile [s]he uses to travel to and from the doctor.” see Letter from Robert S. Taft to Senator Connie Binsfeld, March 24, 1987, Gena Corea Papers, Sophia Smith Collection, Smith College, Northampton, Mass. 303 of goods. Assuming that the surrogate did not reside or hold offices within the United

States, Taft concluded that federal tax law would consider the income produced by the goods as occurring outside the United States and not subject to taxation.80 Like Professor

Means, Robert Taft also cited the Baby M case as providing clear examples as to the problems arising from surrogacy arrangements. Specifically, Taft asked “[w]hich parents are going to be entitled to the medical deductions in connection with the birth? If the court finds that all four ‘parents’ have an interest in the child, how will the tax law treat the result?”

As the conference took place over the weekend, the members of the symposium broke into groups to discuss discrete issues involving advances in reproductive medicine.

Only two of the groups specifically dealt with issues involving surrogacy. Task Force II was asked to contemplate the rights of the surrogate father, along with the rights of a husband to a surrogate mother. Task Force III was charged with debating what law should apply to surrogacy contracts, the issues of compensation for surrogate mothers, along with the rights of the surrogate mother and the wife of the surrogate father. Little was agreed upon unanimously, and the conference was marked by points of intense disagreement.

80 Robert Taft also addressed the issue of the father’s tax position in the context of the surrogacy arrangement. Specifically, as Taft frames the issues involved, “[t]he cogent question is whether or not the father gets a deduction for the fee paid?” Assuming the arrangement is viewed as a service, the father could deduct the fees paid for the services provided. Taft, however, notes “[o]f course, the Internal Revenue Service, being what it is, could consider the child to be a capital asset and assign a depreciable life based upon its life expectancy and force the father to deduct the fee over the life of the child. More likely than not, the Internal Revenue Service would decide that the fee was a nondeductible personal expense.” see Letter from Robert S. Taft to Senator Connie Binsfeld, March 24, 1987, Gena Corea Papers, Sophia Smith Collection, Smith College, Northampton, Mass. 304

At a news conference following the symposium, Senator Binsfeld along with

Judianne Densen-Gerber and Donald Owens discussed the results of the four-day meeting. The issue of surrogacy played a large role in the news conference. The three members of the panel announced that agreement among conference participants could be found on the following issues: “the interests of the child must be considered; surrogacy should not be banned outright; the commercialization of surrogacy, that is the production of babies for money – or a fee beyond reasonable expenses – should be banned.”81 In addition, the press conference announced that panelists agreed that “criminal penalties should apply to those who broker, advertise or procure surrogate parent arrangements; underage people should not be allowed to participate in surrogacy; and surrogates should be limited in order to protect the rights of all involved, and to avoid possible abuses and exploitation.”82

Several months later, members of the symposium submitted a report to Senator

Connie Binsfeld. In the provisional draft of the symposium’s report, the symposium members outlined recommendations on a wide-range of issues, such as in vitro fertilization, the best interest of the child, informed consent, trans-species reproduction, artificial insemination and surrogacy. The surrogacy issue garnered a lot of discussion in the final report. The committee recommended that the legislature draft regulations ensuring that the birth mother would also be considered the legal mother. In addition, in language forecasting the New Jersey Supreme Court’s decision a year later, the committee suggested that the surrogacy contracts be considered null and void as contrary

81 News Release by Senator Connie Binsfeld, March 31, 1987, Gena Corea Papers, Sophia Smith Collection, Smith College, Northampton, Mass.

82 Ibid. 305 to public policy. With respect to commercialization, the committee recommended that a prohibition of brokerage acts for surrogacy be established. Moreover, the prohibition of surrogacy brokerage should be enforceable by criminal penalties.

The members of the committee were less in agreement on whether male and female parties should be prohibited from inducing a surrogacy arrangement. 68.75 percent favored prohibition of male parties, whereas, 62.25 percent favored the prohibition of female parties from persuading surrogacy for compensation.83 Finally, the report also made suggestions on the type and amount of compensation that should be provided to surrogates. While the committee split on this issue, 55.5 percent of the members believed that compensation should only include a surrogate’s reimbursement,

37.25 percent suggested the surrogate should be provided with a reasonable fee, while only 6.25 percent felt that a surrogate should be provided with no compensation.84

The impact of the Baby M case extended far beyond the borders of New Jersey.

The publicity and media attention afforded the trial facilitated renewed efforts to address

83 Provisional Draft: Report of Michigan Task Force Assigned to Inquire Into the New Reproductive Technologies vs. The Best Interest of the Child, June 1987, Gena Corea Papers, Sophia Smith Collection, Smith College, Northampton, Mass.

84 Several members of the committee drafted dissents or opposition statements to the official report. As the symposium came to a close, Gena Corea drafted several points in opposition of the official report. First, Corea was concerned about the overall tone of the final document, and she wanted to emphasize the critical role women played in new reproductive technologies. She wrote, “[a]ny legislation regulating new reproductive technologies must be women-centered, for it is on women’s bodies that the technologies act.” Moreover, all of the technologies represented for Corea a very distinct threat in the form of the way the public defined or categorized the procedures. She warned against viewing the technologies as strictly in medical terms and as “treatments.” According to Corea, the technologies were more than medical procedures; they were “powerful tools of social control.” In addition, she addressed the toll the surrogacy industry was taking on women. Specifically, she was concerned that women were being commodified by the industry and traded. She wrote, “[t]he surrogate industry, in expanding the traffic in women is making motherhood a new branch of prostitution. This industry, which violates women’s human dignity, must be stopped.” see Minority Report by Gena Corea, Gena Corea Papers, Sophia Smith Collection, Smith College, Northampton, Mass. 306 issues of biomedical advancement by state legislators and policymakers across the United

States. In many ways, the efforts of public policymakers was not to invest in creating new regimes to account for the challenging ways new reproductive technologies changed the American family or created problems for the law. Instead, policymakers, judges, and legislators sought to utilize an existing regulatory regime to govern the new technologies available for infertile couples. These efforts attempted to create a regulatory landscape that shaped the families created by the new reproductive technologies and surrogacy contracts in the mold of the “traditional” American family – consisting of two parents, heteronormative and middle-class. In this way, the efforts to adapt the law to meet these dynamic challenges to existing legal constructions were designed to replicate the lives of the men and women who drafted the proposed legislation or wrote the judicial opinions.

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Conclusion

In 1973, Dr. Landrum Shettles of Columbia-Presbyterian Hospital in New York

City agreed to assist a couple who had struggled for years to conceive a child. John and

Doris Del-Zio came to Dr. Shettles, a recognized expert in the emerging field of in vitro fertilization, in order to attempt this final experimental procedure in the hopes of overcoming infertility and having a child. Shettles started working with the Del-Zios and even fertilized Doris Del-Zio’s egg in the laboratory; however, the hospital administration learned of Shettles’ research and halted the experiment before the fertilized egg could be re-implanted.

By terminating Dr. Shettles’ research, the hospital administration illustrated the difficult struggle in balancing the competing concerns of scientific progress and aiding infertile couples. Moreover, the discontinuation of the procedure personally devastated the Del-Zios who became emotionally connected with the possibility of experiencing parenthood. As a result, the Del-Zios filed a lawsuit against Columbia Presbyterian

Hospital. In their lawsuit, the Del-Zios alleged that the hospital’s termination of the procedure provided the basis for a legal claim of intentional infliction of emotional distress.

The Del-Zio’s case also foreshadowed the complex and difficult issues set to unfold over a decade later in the legal battle over Baby M. The advancement in reproductive technology drew controversy, long before it became a reality. Critics asked,

308 do scientists have the right to control biological reproduction and in a sense play God?

Do these advances pave the way for human engineering, a development dangerously close to eugenics? How should the law intervene to ensure ethical practices in the medical field? How are issues of class interconnected with access to fertility treatment?

The difficulty connected with understanding and addressing the issues and dilemmas presented by the rapid advance of biomedical technology even facilitated the creation of an innovative field of scholarly inquiry - bioethics. One of the most complex issues discussed today in bioethics is the regulation of human reproduction and fertility.

However, in many ways, fertility treatment has been located just beyond the “water’s edge,” beyond the boundaries of legal directive. It has been at the frontier of human knowledge, medical science, moral understanding, and the law.

Historians have long focused on the regulation of the limiting forces acting on human fertility. In other words, existing scholarship largely explores fertility regulation through the lens of population control, abortion, sex education and contraception.1 This dissertation explored the inverse, the way the law and legal institutions sought to define the boundaries of an expanding force on fertility – the creation of surrogacy contracts.

In an atmosphere of societal turbulence in the 1960s and 1970s, issues involving control over human reproduction became linked with the stability of American society

1 The historic and legal scholarship concerning abortion and contraception is vast. Some of the best examples are Janet Ferrell Brodie, Contraception and Abortion in Nineteenth-Century America (New York: New York University Press, 1997); Leslie J. Reagan, When Abortion Was a Crime: Women, Medicine, and the Law in the United States, 1867-1973 (Berkeley: University of California Press, 1998); Linda Gordon, The Moral Property of Women: A History of Birth Control Politics in America (New York: Penguin Books, 1974); Linda Gordon, Woman’s Body, Woman’s Right: Birth Control in America (New York: Penguin Press, 1977); David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (Los Angeles: University of California Press, 1994).

309 and the formulation of legislation and judicial decisions governing not only methods of preventing pregnancy, but also new technologies promising to reduce infertility. This swiftly advancing knowledge base helped give rise to new technology that created fresh moral dilemmas centered on when life begins and raised the prospect of confronting previous policy demons, such as, eugenics. Moreover, the social climate in the United

States produced a complicated set of competing demands that pushed legislative and judicial branches to form legal solutions attempting to address complex moral issues in a manner that balanced often-divergent interests. The structure of the American family was changing. White middle-class families still predominately envisioned a married couple, a male breadwinner and a homemaker. However, this vision of American family life was challenged by the introduction of different means to control fertility. Minority groups often viewed these technological advances very differently – as another method to control their lives and a new way to practice racially influenced policies of eugenics.

During the same period, many feminist advocacy groups embraced the new technologies designed to control fertility through contraception – allowing greater control over personal and professional lives. Many of these same groups promoted the advances of new reproductive technology, such as in vitro fertilization, as additional methods to control family timing. However, this view of reproductive knowledge was not left unchallenged. Even among feminist groups, the new reproductive technologies designed to facilitate pregnancy were not universally accepted. Some feminist advocacy groups, the Feminist International Network of Resistance to Reproductive and Genetic

Engineering (FINRRAGE), for example, opposed the use of these new technologies as another means of patriarchal control over women’s lives.

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At a workshop entitled, “Death of the Female: Sex Preselection Technology,” held at the Second International Interdisciplinary Congress of Women in Groningen,

Netherlands on April 19, 1984, panelists discussed emerging threats emanating from reproductive technologies, such as sex predetermination, in vitro fertilization, surrogate motherhood and embryo transfer.2 Concerned with the technologies’ impact on women, panelists formed the Feminist International Network on the New Reproductive

Technologies (FINNRET). The organization quickly expanded to include a mailing list of over 500 subscribers.3 Yet, the founding women soon realized that more was needed to keep interested women informed about how the new reproductive technology was

“using women in the service of medical experimentation, [c]ontrolling pregnancy and reproduction, and [i]ncreasing the international traffic in women for the purpose of reproductive prostitution.”4 As a result, the women secured funding for the “Emergency

Conference on the New Reproductive Technologies” in Vällinge, Sweden in July of

1985.

2 Workshop Handout, Second International Interdisciplinary Congress of Women, Groningen, Netherlands, 1984, Gena Corea Papers, Sophia Smith Collection, Smith College, Northampton, Mass.

3 Draft of Opening Remarks by Janice Raymond to Participants at the Emergency Conference on the New Reproductive Technologies in Vällinge Sweden, Gena Corea Papers, Sophia Smith Collection, Smith College, Northampton, Mass. FINNRET’s organization did not allow for ‘official membership,’ instead the organization “provide[d] links between individual women, as well as different kinds of local, national and international organizations that share common concerns and viewpoints.” see FINRRAGE Newsletter, 1990, Gena Corea Papers, Sophia Smith Collection, Smith College, Northampton, Mass.

4 Draft of Opening Remarks by Janice Raymond to Participants at the Emergency Conference on the New Reproductive Technologies in Vällinge Sweden, July 1985, Gena Corea Papers, Sophia Smith Collection, Smith College, Northampton, Mass.

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Gathering over 70 women from across the world, participants discussed and presented papers on the dangers of the new technology. The conference also led to a change in the official name, from Feminist International Network on the New

Reproductive Technologies (FINNRET) to the Feminist International Network of

Resistance to Reproductive and Genetic Engineering (FINRRAGE). The change in the official name reflected the belief by the participants that the organization was able to coalesce around a common set of ideas and common standpoints regarding the new reproductive technologies. In the years that followed, the organizers of FINRRAGE would continue to grow their subscriber lists and send newsletters regarding trends in reproductive technology. In addition, the organization worked with different groups and chapters to hold conferences, provide links to women interested in the new reproductive technologies, create public awareness through press releases, and create an organization with an academic journal to facilitate the discussion of intellectual thought.

Members of the organization were also active in political and legal debates concerning the new reproductive technologies in the United States. When the Baby M case became public in 1986, Janice Raymond and Gena Corea prominently spoke out against surrogacy. Raymond would say, “[s]urrogacy is the right to give up control of our own bodies. Anyone who doesn’t understand that should read the surrogacy contract.”5 In the same article, appearing in Off Our Backs: A Women’s News Journal,

Gena Corea would suggest of reproductive technologies, “[t]hey are part of the

‘increasing industrialization of reproduction, where women’s bodies are used as the raw

5 Liz Quinn, Reproductive Strategies for Control, Off Our Backs: A Women’s NewsJournal 17, no. 5 (1987).

312 materials for the creation of new babies.”6 The visibility of surrogacy during this period, particularly during the Baby M litigation, prompted the formation of the National

Coalition Against Surrogacy – an organization partly led by Gena Corea.

Further complicating the effort to construct legal policy in the area of human fertility was the intensified lobbying efforts of opposing interest groups. Many medical professions applied pressure to reduce or eliminate regulation regarding human fertility.

Religious affiliations, in particular the Catholic Church, viewed the new reproductive technology as threatening and lobbied fiercely to regulate or ban different methods of control – from contraception to embryonic stem cell research. In this social crucible, defined by opposing and competing interests, legislatures and judges were forced to develop legal policy concerning a rapidly advancing technology, viewed by different societal groups in paradoxical ways.

While the law governing surrogacy is diverse and varied, one court decision has preoccupied legal scholars, and defined the overarching philosophical debate concerning the adjudication of surrogacy cases in the United States. The Supreme Court of New

Jersey, in its 1988 decision In the Matter of Baby M, issued a widely regarded opinion considered fundamental in addressing the issue of surrogacy in the United States. In the case of Baby M, we see the intersection of contract and family law, but more importantly the idea that some subject matters are not available for contract. This case provides an excellent example of many of the issues involved in the practice of surrogacy: issues of class, education, public policy, liberty of contract, the emotional strain caused by infertility, and the psychological stress of a surrogate mother relinquishing a child.

6 Liz Quinn, Reproductive Strategies for Control, Off Our Backs: A Women’s NewsJournal 17, no. 5 (1987). 313

After being diagnosed with multiple sclerosis, Elizabeth Stern concluded that a pregnancy might jeopardize her health and life. In order to create a family, Elizabeth

Stern and her husband sought alternatives to starting a family. After rejecting the option to adopt, the Sterns, who were both well-educated and financially secure, contacted the

Infertility Center of New York. The Center connected the Sterns with Mary Beth

Whitehead, who after witnessing her sister struggle with infertility decided to help other infertile couples by becoming a surrogate mother. The Sterns and Whitehead agreed to a surrogacy contract where Whitehead would carry the baby to full term and then turn over custody of the child to the Sterns.

Mary Beth Whitehead gave birth to a baby girl in March of 1986. Shortly thereafter, unwilling to give up the child, Mary Beth fled with the baby girl. Of the many issues emphasized by the Baby M trial, the relationship between economic class and access to fertility treatment captured a significant amount of attention from journalists and activists. The differences in the Stern’s and the Whitehead’s income could not have been more apparent or stark. William and Betsy Stern were employed in high-paying careers. While Richard Whitehead’s job was in sanitation and waste removal, the Sterns were able to afford an upper-middle-class life, and attorneys and journalists noted the differences between the Stern’s activities with Baby M and the Whitehead’s. The Sterns were able to take the child to museums and entertainment venues. The Whiteheads were forced to engage the child mostly in games at home. Moreover, these differences were reinforced, at trial, by expert testimony describing the different lives that were possible for Baby M. The Sterns would be able to provide a loving and stable home. When Baby

M was old enough, the Sterns would be able to afford to send the child to good schools

314 and eventually college. Conversely, the Whiteheads lived paycheck to paycheck. As such, trial experts viewed the opportunities afforded Baby M by the Whitehead home as more limited than the future provided by the Sterns.

Moreover, the expert witnesses utilized the class differences between the Sterns and the Whiteheads to judge which home would be better suited to raising Baby M. In order to do so, expert witnesses often used proxy language to discuss class. Education and employment were often discussed as virtues of a custody decision favoring the

Sterns. Their commitment to education, as exemplified by their doctoral degrees, was characterized as requiring hard work and dedication. This education led to constant and secure jobs. Combined, these factors led expert witnesses to conclude that the child would be more likely to have a stable home if placed with the Sterns.

In addition, the issue of economic class was discussed in broader discourse surrounding the Baby M litigation. The arrival of paid surrogacy invited questions concerning the exploitation of women from lower economic means by higher earning couples. As Ann Taylor Fleming’s reporting demonstrated, potential surrogate mothers at Noel Keane’s offices in Michigan often came from working-class homes and tended to be uneducated. Furthermore, they often needed the money provided by a surrogacy contract to supplement the income they received from non-professional jobs. The cost of surrogacy agreements, alone, precluded many Americans from considering it as an option when infertility was at issue. Moreover, the entire industry was often characterized as potential exploitation. As journalists discovered, shortly after the Baby M case commenced, Noel Keane’s legal practice in surrogate motherhood was grossing over

$600,000 dollars in annual revenue. Therefore, a couple’s willingness to do whatever

315 was possible to overcome infertility was making some lawyers and businessmen very wealthy.

While the issues of economic class, along with the potential for exploitation, were discussed by the journalists, activists and lawyers associated with the Baby M case; another debate surrounding surrogacy surfaced in the United States. The Baby M litigation highlighted the challenges associated with defining motherhood in an era of new reproductive technologies. Who should be considered a child’s mother when the child is born as a result of a surrogacy agreement? The Baby M case provided the catalyst for a broader discussion. While Mary Beth Whitehead was the genetic mother of

Baby M, the case brought to the foreground other technologies that made the issue murkier and more uncertain. Increasingly common was the use of gestational mothers.

Gestational surrogacy allowed the child to be genetically related to individuals other than the surrogate mother. This was accomplished with the application of in vitro fertilization to paid surrogacy arrangements; and this possibility was exemplified in the legal case

Johnson v. Calvert, discussed in greater detail below. As a result, the Baby M case sparked greater discussion on the differences between genetic relationships and carrying a child to term.

In Johnson v. Calvert, married couple Mark and Crispina Calvert were unable to have children following Crispina’s hysterectomy. Anna Johnson, a coworker of Crispina, offered to act as a surrogate for the Calverts. The Calverts and Anna Johnson subsequently entered into a surrogacy agreement, and the Calverts provided an embryo formed from their own gametes. A child from this pregnancy was born on September 19,

1990. Following the delivery of the child, Anna Johnson refused to relinquish custody.

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The California courts were presented with the complicated issue of two different women claiming maternity. Crispina Calvert was the genetic mother of the newly born child.

Anna Johnson, however, carried the child to term and delivered the baby - a gestational mother. Under these circumstances, the court determined that the genetic mother was considered the natural mother under California law. The court held:

[w]e conclude that although the Act7 recognizes both genetic consanguinity and giving birth as means of establishing a mother and child relationship, when the two means do not coincide in one woman, she who intended to procreate the child—that is, she who intended to bring about the birth of a child that she intended to raise as her own—is the natural mother under California law.8

Under this interpretation, the Court focuses on the intent of parties – utilizing principles of contract law.

Moreover, the majority opinion in Johnson v. Calvert openly rejected critic’s arguments that surrogacy was degrading, dehumanizing to women and exploited differences in economic status inherent in issues of class to take advantage of women of lower economic means. The court stated,

[t]he argument that a woman cannot knowingly and intelligently agree to gestate and deliver a baby for intending parents carries overtones of the reasoning that for centuries prevented women from attaining equal economic rights and professional status under the law. To resurrect this view is both to foreclose personal and economic choice on the part of the surrogate mother, and to deny intending parents what may be their only means of procreating a child of their own genes.9

With this holding, the Court affirms principles essential to contract law: examining the intent of the parties involved. Moreover, the court employed other principles found in

7 “Act” refers to the California Uniform Parentage Act

8 Johnson v. Calvert, 5 Cal.4th 84 (1993), 93.

9 Ibid., 97. 317 common law decisions, such as contract and tort, in this case. The above-referenced quotation illustrates how the court recognized the agency of the parties. In addition, the majority opinion explicitly addresses the ability of Anna Johnson to enter into contractual arrangements. Her education and intellectual ability present no bars to believing she was able and capable of exercising informed consent when entering into the surrogacy agreement with the Calverts.

Additionally, the issue of motherhood was fiercely contested and debated during the Baby M trial. Attorneys for both the Sterns and the Whiteheads disputed the qualities of a “good” mother. The Sterns portrayed Mary Beth Whitehead as unstable and psychologically dependent on motherhood; while Mary Beth Whitehead emphasized her love and attachment to Baby M. This dispute was illustrated in the testimony of compensated experts hired by the guardian ad litem to evaluate both families. The experts were composed of psychologists, psychiatrists and social workers specializing in families. Overall, the expert witnesses agreed with the Stern’s lawyers that Mary Beth was unstable, uneducated and emotionally dependent on her role as a mother. The experts even evaluated and critiqued her ability to play games with Baby M, and to properly interact with the child during “pattycake.” Elizabeth Stern, on the other hand, was portrayed as emotionally mature, intelligent and caring. Her occupation as a pediatrician contributed to the experts’ impression of a strong mother. The significance of the testimony concerning each mother was that it was ultimately utilized to determine the custody of Baby M. In other words, the broader discussion of the qualities of a

“good” mother was fundamental and determinative in deciding where to place Baby M.

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Likewise, the essential elements that constituted a “good” father were also debated and discussed by the lawyers and expert witnesses during the Baby M litigation.

Similar to his wife, William Stern was portrayed as an intelligent man with a caring and empathetic personality. Moreover, he was described as someone emotionally bonded and attached to Baby M. His attachment was often associated with his desire to see his family continue since all of his extended relations were killed during the holocaust.

Richard Whitehead, however, was portrayed differently. While Whitehead was viewed as a likable and honest man, he was also seen as largely removed from the child raising aspects of the Whitehead home. He did not relate to, nor did he interact with, the

Whitehead children on a regular basis. This may be partially attributed to his job, since he worked off-hours and slept often while the children were home. Nevertheless, his absence and lack of engagement were noted by lawyers and expert witnesses.

Furthermore, both Richard Whitehead’s and William Stern’s aptitude for fatherhood was linked with conceptions of masculinity by trial participants and journalists covering the case. Throughout much of the twentieth century, formulations of

American masculinity were connected with men’s role as a father. Specifically, men were viewed as the economic providers of the family. This association was further intensified in the immediate postwar period when societal constructions of the ideal family centered on a heterosexual couple, male breadwinner, and nuclear family model.

While this construction was not uniformly realized by families in the United States, social conventions still emphasized its idealism. While this model and construction of the

American family, as well as the role of father, was under pressure and challenged by

319 economic conditions and social movements by the 1980s, it still informed both the litigants and the attorneys working on the Baby M case.

Accordingly, Richard Whitehead’s masculinity was questioned, as it related to his ability to provide for his family. Not only did Richard Whitehead have difficulty holding and maintaining a job, his wife on several occasions was forced to assume the breadwinner function in the family. Mary Beth was forced to work in bars and restaurants when Richard was unable to financially provide for the Whiteheads. This was in contrast to the Sterns, which while a dual income home, could have survived off of

William Stern’s salary. Moreover, the Sterns exemplified a more modern construction of the American family. Both William and Elizabeth Stern worked outside the home. In addition, both William and Elizabeth expected each other to share equally in the childrearing and child caring function of parenthood. In short, the Baby M trial demonstrated the changing structure of the American family, and the challenges to defining masculinity and fatherhood in the late twentieth century.

In addition to questions regarding class, as well as defining motherhood and fatherhood, the Baby M litigation raised a number of concerns about regulating biomedical advance in the area of fertility research. In many ways, these expressions were a product of societal acceptance of modernity and scientific development. In particular, the experience of the Second World War and Nazi medical experimentation demonstrated the need for greater regulatory oversight regarding medical research. Prior to the postwar period, physicians and medical doctors were largely monitoring their own research. The Nuremberg revelations regarding the atrocities of Nazi medical

320 experiments spurred the growth of new fields of scholarship – specifically in the area of bioethics.

In the years that followed, principles of ethical research, first distilled in the

Nuremberg Code, were applied to governmental regulations in the United States.

Consequently, researchers with funding provided by the federal government were subject to greater controls and oversight. With regards to fertility research and surrogate motherhood agreements, one concept was particularly important – informed consent.

Informed consent would be embedded in many of the documents and regulations governing medical research in the postwar period. Moreover, it would be encompassed in the conceptual framework employed by organizations, such as the American Fertility

Society and the American College of Obstetricians and Gynecologists, when suggesting model rules for ethical fertility research. These organizations not only emphasized obtaining informed consent from surrogate mothers, but used the concept to discuss the potential for exploitation in the surrogacy relationship. However, much of the attempted regulatory control of fertility research by both governmental and professional organizations proved ineffective. Since much of the enforcement mechanisms attached to the statements and regulations utilized federal funding, all research and development utilizing private funding was beyond the reach of governing bodies.

Yet, the governing framework created by regulators and professional organizations failed for another reason. One of the motivating forces leading to greater adoption of biomedical research guidelines and medical ethics concerned the adoption of eugenics during the progressive period. Eugenics can be either positive or negative.

Positive eugenics aimed at encouraging reproduction among the genetically advantaged,

321 while negative eugenics aimed at lowering fertility among the genetically disadvantaged.

Even leading to judicial sanction, eugenics was broadly accepted as a method of improving society by the selection of specific genetic traits deemed desirable.

The law addressed the issue of eugenics in a number of cases. Two classic examples are Buck v. Bell and Skinner v. Oklahoma. In the 1927 case of Buck v. Bell, the

Supreme Court upheld a statute instituting compulsory sterilization of the unfit, including the mentally challenged, claiming an interest “for the protection and health of the state.”

In this manner, the decision may be seen as an example of negative eugenics. In Skinner v. Oklahoma, a 1942 Supreme Court ruling, the Court held that compulsory sterilization could not be imposed as a punishment for a crime. Both cases illustrate how the law waded into the murky waters of eugenics and both cases demonstrate how using the law in the area of fertility can lead to undesirable results. Nevertheless, the popularity of eugenics dissipated in the United States with the discovery of the Nazi atrocities during the Second World War.

The modern fertility industry, however, illustrates how eugenic principles are still practiced in contemporary America. The selection methodology and donor recruitment practices of modern sperm and egg banks demonstrate that eugenics is still prevalent.

Attempts at regulatory control and an intense focus on bioethical concerns did not eliminate eugenic practices. The vast majority of donors in the United States are white and college educated. Market forces contribute to the overall eugenic effect of the industry because of the cost associated with treatment and the desire of those who can afford treatment to choose donors like themselves.

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Finally, following the Baby M decision, there was an increased awareness and interest by the public in surrogacy agreements. In addition, large segments of the

American population clamored for greater regulation and control over the practice. In the years that followed the Baby M decisions, several states examined surrogate motherhood.

However, most states were unable to pass laws controlling or regulating surrogacy.

Moreover, the states that were able to pass legislation governing surrogacy differed in the policy choices they implemented. Some states did choose to follow the New Jersey approach. In these jurisdictions, legislators often viewed surrogacy agreements as akin to baby-selling. As such, these jurisdictions often banned or severely restricted paid surrogacy arrangements due to public policy considerations. Other states, however, chose to leave the practice unregulated. These examples, however, should not be construed as passive endorsement. The difficulty in passing legislation banning surrogacy often limited legislative options. Moreover, while the public was engaged and interested, it was deeply divided over the appropriate course of action.

Accordingly, legal institutions were often forced to utilize alternative methods of examining and regulating surrogacy agreements. The changes to familial relationships as a result of the new reproductive technologies were explored in the Uniform Parentage

Act (UPA). The National Conference of Commissioners of Uniform State Laws

(NCCUSL) originally drafted the UPA in 1973. State legislatures were subsequently free to adopt these model statutes and craft state policy when defining parental rights. As discussed in M is for Model Regulations, the creation of parental rights raised a number of family law concerns. Issues of child custody, child support, visitation rights, social security benefits and inheritance are all a consequence of parental determinations.

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Moreover, all of these issues are potentially altered by the arrival of the new reproductive technologies. As the Uniform Parentage Act of 2002 demonstrates, issues in family law have been greatly impacted by the growing use of assisted reproductive technologies as changes were adopted to account for the enormous advances in reproductive medicine.

While this dissertation centered on the New Jersey court case of Baby M, the litigation holds greater significance in that other courts and state legislators turned to this case when considering their own controversies dealing with surrogate motherhood contracts. The Court in Baby M concluded that the surrogacy agreement between Mary

Beth Whitehead and the Sterns was void due to public policy. While the court awarded custody of Baby M to William Stern by applying the “best interest of the child” standard, judges, lawyers, activists, journalists and the public took more into account than simple abstract constructions of legal doctrine. While the legally operative language of “the best interests of the child” appears facially neutral, this dissertation has demonstrated that it was embedded with meaning, and defined by societal conceptions of the meaning of both motherhood and fatherhood. As a consequence of voiding the surrogacy contract, the

Court viewed the pregnancy through the lens of more traditional notions of motherhood and fatherhood. Surrogacy agreements, governed by principles of contract law, still reflected the social norms of those involved in making them.

Moreover, the issue of surrogacy agreements, along with in vitro fertilization and other methods of assisted reproduction have challenged notions and principles held in family law since the colonial period. These challenges have strained the legal system, pressuring it to adapt, causing it to adopt some previously established legal frameworks while modifying others. Roger Dworkin, a bioethics scholar and law professor emeritus,

324 suggests that the law is important and can and should be used as a valuable tool to resolve disagreements in the field of bioethics. However, he also cautions that “blind faith in the law’s ability to resolve bioethical problems or unthinking acquiescence in the dominant role of law would be … unsound.” Dworkin argues that law is a limiting or reactive factor, rather than a positively acting, forward-looking force, and as a limiting factor, law should only be used when imposing limits. In this way, the law and the legal system should tread gently, walking up to the water’s edge, wading into this immense reservoir of moral uncertainty, careful not to allow the water to overpower and engulf us. The

Baby M case illustrates the dangers of relying on legal intuitions reactively, as opposed to proactive solutions, to resolve complex moral and ethical problems related to infertility.

325

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