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 By 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 Copyright by 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. iv 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 v 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 vi 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