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Babies: No Sale

February 04, 1988

With Solomon-like wisdom the New Jersey Supreme Court has settled one of the most hotly contested child-custody disputes of the decade and struck a blow against surrogate motherhood.

Its decision in the celebrated Baby M case, based on New Jersey statutes and the state constitution, establishes a precedent only in that state. But the court's thoughtful and balanced approach ought to inspire courts and legislatures elsewhere as they wrestle with the morally troubling issue of whether a woman can contract to bear a child for someone else and then be forced to surrender it.

The New Jersey court has emphatically said no, that surrogate motherhood is just a fancy name for baby-selling if any money changes hands. Women like surrogate Mary Beth Whitehead Gould, the mother of Baby M, are not bound by contracts to sell their babies because such contracts are "invalid and unenforceable" and "exploitative of all parties involved," the court held unanimously.

The court also recognized a fact well known to adoption specialists--that many mothers become so emotionally attached to their babies during pregnancy that they change their minds about surrendering them after birth. To be valid, surrogacy contracts must follow the pattern of adoption statutes and give women a fixed period, after birth, in which to consider whether to relinquish a newborn, the court said.

Baby M's mother had been treated very harshly by the trial judge who ordered her to give up her daughter to William Stern, the natural father. The judge had denounced her as "manipulative, impulsive and exploitative" for refusing to surrender the child in exchange for $10,000, and he had stripped her of all visitation rights.

Gould, who has been divorced and remarried since the trial, received considerably more sympathy from the New Jersey Supreme Court. "We think it is expecting something well beyond normal human capabilities to suggest that this mother should have parted with her newly born infant without a struggle. Other than survival, what stronger force is there?" the court said.

In the end, however, the prize that Gould sought --full custody of her daughter--eluded her. The little girl, now almost 2 years old, has spent most of her life with her father and his wife. And the court, applying the standard traditionally used in custody disputes, prudently decided that she is better off where she is. Her mother, however, was awarded full visitation rights and assurances that she can remain part of the child's life.

The court did not rule out all surrogate arrangements--only those requiring a payment of money and denying the mother the right to change her mind. A woman who wants to bear a child for someone else, a woman motivated only by a desire to help an infertile couple, could still do so.

There are bound to be critics who say that women ought to be able to decide what to do with their bodies. To that the New Jersey Supreme Court has wisely responded: Yes, but they cannot rent their wombs. This means that in New Jersey, at least, babies cannot be treated as chattels, to be bought and sold in commercial transactions.

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