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The Case of Baby M

January 25, 1987

One of the most troubling cases to come before the courts in recent years involves the fate of Baby M, the girl born in New Jersey to a surrogate mother who now wants to keep her. The issues presented by this case are deep and seemingly unresolvable, and they will test the ability of a judge to find justice among equally compelling competing claims.

Specifically, William and Elizabeth Stern could not have a child without threatening the life of Mrs. Stern, who has a mild case of multiple sclerosis. They contracted with Mary Beth Whitehead to be artificially inseminated by Mr. Stern, to carry and bear the child and then to turn it over to the Sterns. But after the baby was born, Whitehead decided that she did not want to give her up. The Sterns sued, and Judge Harvey Sorkow of the Bergen County Superior Court must now decide who gets Baby M.

The entire issue of surrogate motherhood is fraught with legal and ethical problems, not the least of which is whether society should permit such an arrangement in the first place. Is it proper for women to rent out their wombs in this way? Or should this be viewed as a good way for a childless couple to have a baby? What of the baby herself? Will the court take her interests into account, or is this merely a fight over a broken contract?

These are all extremely difficult questions, and they just scratch the surface of the problems that surrogate motherhood can raise and will continue to raise until society decides how to treat this complicated situation. Each side makes a very good argument, and it is fortunate that this sort of thing does not come up often.

If we had to choose--and we're glad that we don't--we would take a deep breath, bite our lip, and award Baby M to her surrogate mother, Mary Beth Whitehead, while recognizing the great emotional distress that such a ruling would cause the Sterns. In general, in a variety of circumstances, society recognizes the special affinity between mother and child, and it is reasonable to apply that recognition to this case.

The situation reminds us of a Hasidic story about two men fighting over the ownership of a cow and submitting their dispute to a rabbi to resolve. The first man said, "I own the cow. Here's the bill of sale. The cow belongs to me."

"You're right," the rabbi said."

"Wait a minute," said the second man. "The cow jumped over my fence five years ago and has lived in my barn since then. I have fed her, I have milked her and I have cared for her. By all rights, the cow now belongs to me."

"You're right," the rabbi said.

Overhearing this, the rabbi's wife called him aside. "Rabbi," she said, "you told the first man that he was right, and you told the second man that he was right. They can't both be right."

"You're right," the rabbi said.

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