"They feel great pain for the child," said Gary Skoloff, attorney for William and Elizabeth Stern, who have temporary custody of Baby M, the infant now the center of a legal battle that is testing the concept of surrogate motherhood. He said that they are determined to try to "insulate" the child--"They have no intention of cooperating in any book or movie" or TV venture. In a telephone interview yesterday, he emphasized, "They are very private people and they are traumatized by the publicity now attendant upon what they thought was a very private decision to create a family."
Mary Beth Whitehead , the surrogate mother , has testified that she was "overpowered" by the experience of Baby M's birth, and her husband, Richard, quoted her: "Oh, God, what have I done?" She has not signed over custody.
PALM SPRINGS--With the court battle over New Jersey's "Baby M" as the background, the American Bar Assn.'s family law section met here over the weekend to grapple with the legal and moral implications of surrogate motherhood.
Among the questions raised were:
--Is society creating a class of "breeding women"?
--Are babies becoming the products of entrepreneurships?
--What are the emotional implications of a child so conceived?
--What should the ethical guidelines be in governing surrogate contracts?
--Is it a dangerous precedent for the state to decide who has the right to procreate?
--What happens if a contracting couple dies before the child is born?
--Does anyone really understand the grief suffered by the surrogate when she surrenders her newborn?
--Who is responsible if the surrogate dies from complications of pregnancy or birth?
--How much she should be paid should she miscarry?
As a "think tank" of family law experts, the ABA group has set about drafting a model act governing surrogate motherhood. No state now has laws either legalizing surrogacy or outlawing it, or spelling out rights and responsibilities of those involved in these babies-by-contract arrangements.
The debate here was evidence of the recognition by this body that, as Century City attorney Stuart B. Walzer put it, "The technology has outdistanced the social forms," making possible such phenomena as artificial insemination and "test tube" babies, but leaving society to deal with the resulting lives in disarray.
The catalyst is the case of "Baby M." In Bergen County, N.J., Superior Court Judge Harvey Sorkow is expected to hand down a decision about the end of February: Does the blonde, blue-eyed nine and a half-month-old infant belong to her surrogate mother, Mary Beth Whitehead, 30, of Brick Township, N.J., or to William and Elizabeth Stern of Tenafly, N.J., who contracted for her to be conceived?
There have been three or four other cases in which surrogate mothers have, after the fact, had second thoughts about giving up the child.
Baby M is "a case that never should have been," Gary Skoloff of Newark, the Sterns' attorney and a member of the family law section council, said here. "It's absolutely amazing that nobody was ready for it." It is, he said, a textbook example of "the law falling way behind science."
"What is a family today?" Walzer asked. "The lawyers have been corrupted into becoming money making machines and forgetting that there are broader social issues."
Ira Lurvey, who also practices in Century City, interrupted an informal discussion of surrogate motherhood as a women's issue to suggest that "it's not that cut-and-dried. Who's really considering the dignity of life?" Surrogate motherhood, he said, is a potentially devastating practice and needs to be studied with the deepest intellectual commitment.
"What we're saying is acceptable is changing," Lurvey said. "We're changing all the ground rules for living. We're asking society to enforce a new set of rules."
Lynne Gold-Bikin, a council member from Norristown, Pa., pointed out that the ABA's family law section has 15,000 members (by no means all of those practicing in the specialty) and there have been about 500 children born by surrogacy arrangements so "few of us had these cases. You tend to focus on the problems that come to you."
"The law very rarely anticipates," explained Leonard Loeb, a council member from Milwaukee. A year ago the ABA group began its efforts to draft model legislation but, Loeb predicted, the ABA as a whole will grant its approval to a model act in August of 1988 "at the earliest" and it could then be "years and years" before individual states adopt it or amended versions. (Assemblyman Mike Roos (D-Los Angeles) introduced a bill in Sacramento back in 1982.)
Surrogate motherhood, Skoloff argued, "is a beautiful social purpose," and the only "viable" option today for most childless couples. (A typical arrangement, between two sets of adults, calls for artificial insemination of the surrogate mother by the sperm donor father and a contract stipulating that the surrogate will deliver the child to the biological father and his wife, who will adopt the child.)