Baby M's future is all in the family, but the big question is what kind of family? The matter of third-party parenthood is far from settled. While some jurists occupy themselves preparing to meet the possibilities of new reproductive technologies--a real issue--the dilemma in what has become known as surrogacy is something else. Technology permitting the conception of a Baby M is not new. Artificial insemination by donor is a century old, and natural insemination of a third party for reproductive purposes is as ancient as the written word.
Although they were probably unaware of it, the actors in the recent case had, in the early days of the pregnancy, begun to create a new kind of family. The natural father and his wife entertained the children who became the half-siblings of their contracted baby. They had initiated a kind of bond with the natural mother. When the natural mother changed her mind, the good will among the parents dissipated. But it was too late. For although they did not intend to, the natural mother and the natural father had already become partners. Other surrogates have volunteered that they offered their services in hopes that by providing a baby, they would become part of a new kind of loving, extended family.
While this new family may seem startling to those of us who live in small, nuclear units, kinship has different meanings in other cultures. Pacific Islanders routinely adopt or exchange children. In Ethiopia infertile wives urge their husbands to have children by other women, and then welcome the children into their homes, not displacing the natural mothers but becoming co-parents with them. In these cultures parenting is not exclusive. Children are loved and cared for in a second household--the father's or another woman's--at the same time they continue to acknowledge their natural mothers.
One of the outcomes of this case ought to be the establishment of the legal principle that a woman has an inalienable right to her child, a right that she cannot sign away before the child is born. Just as in ordinary adoption cases the natural mother has several months to reconsider her action, it seems obvious that with third-party arrangements the same right should exist.
Surrogacy, however, is not the same as ordinary adoption. Whereas in most adoptions the father is either unknown or unavailable, here it is the father who is the initiator of the conception. He has deliberately arranged for the birth of his child. It is unfair to him and to the child to exclude him from the child's life should the biological mother change her mind. He, too, has an emotional as well as a biological bond, along with a responsibility to the child he has deliberately brought into the world.
When there is conflict, the needs of both natural parents have to be considered. But what about the child? Like any adopted person, she has the right to know as much as possible about her genetic ancestry. But unlike the traditional adoptee--whose mother often demands anonymity--this child has the opportunity for the love and friendship of both natural parents as well as all of her genetically linked relations.
State legislatures are under pressure to formulate laws that will either regulate the practice of third-party or surrogate parenting, or ban the practice altogether, as the Vatican has urged. Banning would probably only force the practice underground, or cause desperate couples to seek help elsewhere. Proposed regulations are, in many instances, merely legal maneuvers to legitimize the questionable role of intermediaries who profit from the procedure and have neither the parents nor the child's interests at heart. Ideally, if there have to be intermediaries they should be nonprofit agencies whose interests are those of the individuals involved. Legislatures are faced with an established practice that has to be regulated--to limit the tendency for well-to-do couples to exploit poorer women and to discourage Solomon-like situations such as the recent New Jersey case. This could be done by clearly establishing the rights and obligations of both parents entering such an agreement.
The natural mother must be understood to have an inalienable right to her child with a set amount of time to reconsider. The man, however, both as natural father and intended adopter, would also be understood to have a greater than adoptive investment in the child. Should the agreement dissolve, the natural father and natural mother would have joint custody of their offspring. This would signal all parties to such an arrangement the possibility that the natural mother might change her mind, but she must understand that if she does, she cannot simply walk off with the child. The father would have equal access. Once the risk is undertaken, both natural parents would have to be prepared to share their lives indefinitely as their child grows up.