In The Public Discourse
Governor Christie’s recent veto of a “gestational” surrogacy bill should
prompt us to look at the legal history of surrogacy and the terrible
injustices that it causes.
On August 8, 2012, New Jersey Governor Chris Christie issued an
absolute veto of Senate Bill 1599, which would have created a statute
enabling and enforcing so-called “gestational” surrogacy arrangements.
The bill was sponsored by New Jersey State Senator Joseph Vitale, and
substantially drafted by Melissa Brisman, a commercial surrogacy broker.
If signed into law, it would have been the most radical surrogacy bill
anywhere in the nation.
In public hearings, neither Brisman nor the bill’s sponsors, nor
anyone else, discussed the 177-page New Jersey Bioethics Commission
report that condemned gestational surrogacy and strongly recommended
against such an enabling statute. Governor Christie, in his veto
statement, expressed grave concern that the supporters and sponsors of
S1599 did insufficient study and consideration of the many problems that
surrogacy poses, especially those discussed by the Bioethics
Commission.
Some fervently believe that if gestational surrogacy laws were to be
widely accepted they would irreparably change human civilization.
Gestational surrogacy is now front and center for debate, not only in
New Jersey, but across the nation. It demands attention. Motherhood
itself is now on trial.
As the attorney who was chief counsel in the first contested
surrogacy case in the United States that struck down surrogate mother
contracts as unenforceable, argued before the New Jersey Supreme Court
in 1987, who also won, on behalf of the mother, the first contested
“gestational” surrogacy case and later represented gestational surrogate
Angelia G. Robinson against commercial surrogacy broker Melissa
Brisman, I’ll address, in two parts, the legal history of surrogacy in
New Jersey—a history that has national, even international,
implications—and the terrible injustices to pregnant mothers that
surrogacy causes, which have been exposed by both the New Jersey
Bioethics Commission and the testimonies from the mothers themselves.
Today’s essay discusses the issues addressed in the famous first
surrogacy case, In the Matter of Baby M (1988). Tomorrow’s essay discusses some of Brisman’s work as a surrogacy broker, especially in the case of Angelia Robinson.
The Baby M Case
In the Baby M case, Mrs. Whitehead, a married woman with an
eleven-year-old son and an eight-year-old daughter, signed a contract
with William Stern and his wife Elizabeth, who believed pregnancy and
childbirth were medically inadvisable for her. Mrs. Whitehead, by the
terms of the contract, was impregnated with Mr. Stern’s sperm through
artificial insemination. The child, born on March 27, 1986—named Sarah
by Mrs. Whitehead, and Melissa by the Sterns—was genetically related to
Mrs. Whitehead and Mr. Stern.
The surrogacy arrangement was made by a broker named Noel Keane. By
the terms of the contract, the Sterns would pay Mrs. Whitehead $10,000
following the birth. The contract forbade Mrs. Whitehead to have an
abortion. Following the birth of her daughter, Mrs. Whitehead refused to
give up custody to the Sterns. After a two-month trial, Judge Harvey
Sorkow declared that the terms of the contract that required the
termination of Mrs. Whitehead’s parental rights, against her will, were
enforceable. At the same time, Judge Sorkow ruled that the terms of the
contract that prohibited terminating the life of the child by abortion
were unenforceable. The child, he ruled, was the mother’s to kill, but
not hers to care for.
The surrogacy arrangement first started to unravel when Mrs.
Whitehead was seven months pregnant. One evening, her daughter, then
eight years old, was hugging her mother and rubbing her now round and
protruding abdomen. The little girl blurted out, “Mommy, I want you to
have a girl so I can have a baby sister.”
That night and late into the morning, Mr. and Mrs. Whitehead were
forced to discuss what it would be like for the children to see their
mother turn over their baby sister in exchange for $10,000. Their
original plan, since Mr. Whitehead held a blue-collar job with a
sanitation company, was to put the money aside for their children’s
education. Then they wondered how they could tell their daughter that
they sold her baby sister so she could go to college.
About three years later, Dr. Ruben Pannor, one of the authors of The Adoption Triangle,
told me of his television debate with Bill Handle, a surrogacy broker
located in Los Angeles. Handle had a “happy” surrogate with him who
spoke of the joys of “giving the gift of life” to a couple by acting as a
surrogate mother. During a commercial break, Dr. Pannor turned to the
surrogate and asked how her other children were doing. She started to
tell him how they had to be put in therapy, and suddenly she broke down,
crying hysterically. She could not continue on the program and was
helped off the stage.
When the New Jersey Supreme Court reversed the trial court’s ruling in the Baby M
case, by a unanimous 7-0 decision, the surrogacy contract was declared
unenforceable, in violation of New Jersey statutes and public policy.
Chief Justice Robert Wilentz wrote the opinion, which many commentators
described as “poetic” and “beautiful.” That opinion has been studied in
most law schools since that time, as it is a classic teaching case about
the kinds of contracts which will not be enforced because they violate
public policy. Sixteen separate policies and statutory provisions were
violated in the Baby M case. Today, gestational surrogacy arrangements violate those same policies and statutes.
The central purpose of all forms of surrogacy contracts is to
terminate the parental rights of the legal mother who carries and bears
the child, and to confer legal status as mother or parent on a different
person—usually a stranger genetically unrelated to the child. Both
termination of the mother’s rights and legal adoption as replacement of
the birth mother did not exist at common law and are creations of
statutory law. They can be accomplished only by strict adherence to the
provisions of the statutory schemes that authorize them. The effort to
create surrogacy arrangements are not legally authorized in New Jersey
by an enabling statute. In the absence of such an enabling statute, the
Sterns and others since have tried to circumvent the requirements of the
law by making a variety of legal arguments that have been rejected, as
in Baby M.
The contract, the Baby M court observed, constituted a plan,
in advance of conception, to deliberately separate a child from his or
her mother. Our policies have always been that a child, to the fullest
extent possible, should get to know, love, and be raised by both his or
her natural parents. It is the traditional policy of every state that no
consent to surrender a child to adoption made prior to the birth of the
child is ever considered a legal basis to terminate a mother’s rights
if she wants to maintain her relationship with her child following
birth.
The Baby M court made the following observations: private
adoptions are disfavored; the surrogacy arrangement places a child
without any regard for the child’s best interests; it circumvents all
laws that require counseling of the mother before she surrenders her
rights; and the compulsion of the contract makes surrender of the child
after birth not truly voluntary or informed. Beyond that, the
arrangement exploits women as a “surrogate uterus” or an “incubator” and
expects a mother to act as an inanimate object, which denigrates the
woman in her role as mother.
The arrangement often achieves its forbidden goals with the
corrupting influence of money. It has been a crime in all states to make
offers of money in connection with adoption, or surrender of a mother’s
parental rights. The influence of money creates the potential for
exploitation of the poor by the wealthy. It has been said that the
millionaire’s wife will not carry a child for the wife of the sanitation
worker. A woman in financial need is particularly vulnerable, and her
love for and sense of moral duty to her child, along with the child’s
best interests, are all subordinated to the corrupting influence of
money, and the rigid compulsion of the terms of the contract.
One of Chief Justice Wilentz’s memorable passages still has the power to stir passion:
There are, in a civilized society, some
things that money cannot buy. In America, we decided long ago that
merely because conduct purchased by money was “voluntary” did not mean
that it was good or beyond regulation and prohibition . . . There are,
in short, values that society deems more important than granting to
wealth whatever it can buy, be it labor, love, or life.
Whether we will use our collective power through our courts to make
someone perform under a contract against their will is always a question
of whether forcing the person to comply is consistent with our values
as embodied in our public policies. Thus, we do not require performance
of a contract to murder; nor do we enforce a contract for a usurious
rate of interest, or for the sale of body organs, and we certainly do
not enforce a contract for the sale of a child; we have never forced a
perfectly fit mother to separate from a child she loves and wants,
simply because she once said she would agree to separation after the
child’s birth.
Baby M was a powerful statement that clearly explained the
sixteen policies and statutory provisions that rendered surrogacy
contracts unenforceable and exploitative of women, and criminalized both
monetary payments in adoption and placement of children for adoption
without a license. After the Baby M case, most European countries quickly outlawed surrogacy.
The New Jersey Bioethics Commission Report
At the end of the Baby M opinion, the New Jersey Supreme
Court observed that the case highlighted many of the problems and evils
of surrogacy—including the potential exploitation of women—but that the
people and the culture must determine if our policies and laws, after
careful consideration, should be changed, subject to constitutional
constraints. Following the Baby M decision, the governor and
the legislature asked the New Jersey Bioethics Commission to study the
issue of whether laws should be changed to create a surrogacy-enabling
statute.
The Bioethics Commission included psychologists, scientists,
physicians, lawyers, healthcare providers, and other professionals from
both ends of the political spectrum. The commission held public hearings
and debates on the policy issues, and it employed a task force for
purposes of research and field trips. After a process that took over
four years to complete, the members issued their powerful 177-page
comprehensive report.
I testified twice in the public hearings held by the commission’s
task force, both in 1988 and again in 1989. In October of 1990, I was
appointed by the Democratic governor, James Florio, to the commission.
The twenty-four commissioners unanimously adopted the report they sent
to the governor, the legislature, and the chief justice in September
1992, which they titled, “After Baby M: The Legal, Ethical and Social Dimensions of Surrogacy.”
The report strongly condemned all forms of surrogacy, including
so-called “gestational carrier” arrangements, which were first employed
in the late 1980s. It noted that every evil associated with surrogacy
where the birth mother is genetically related to the child is also
present in gestational surrogacy, where she is not genetically related.
The commission strongly recommended that the state not pass an enabling
statute that would legalize enforcement of any form of surrogacy
arrangement.
Because the commission concluded that no legitimate policy could
justify enforcing such arrangements, and that they were potentially
harmful to the mothers and their children, it recommended that
legislation be passed to discourage and deter the conduct, including a
specific recommendation that commercial surrogacy be criminalized. While
it was already a crime in New Jersey to make offers of money in
connection with adoption, and it was criminal to help place children for
adoption without a license—both done in typical surrogacy
arrangements—the commission felt there should be unambiguous sanctions
clearly directed at surrogacy arrangements.
If criminal and civil sanctions failed to deter, the commission
recommended, in cases where the birth mother wished to assert her
parental rights and made that intent known within ninety days after the
child’s birth, and a dispute over custody arose, that:
A legal presumption should be established, favoring
custody by the birth mother, consistent with assuring satisfaction of
the needs and welfare of the child. This presumption may be overcome by a
demonstration, based on clear and convincing evidence, that the
individual giving birth fails to meet minimal parenting standards
necessary to satisfy the basic needs and welfare of the child. Such
determinations should not be based on considerations of economics or
social class.
All of these recommendations—that legislation should criminalize
commercial surrogacy, declare both commercial and non-commercial
surrogacy agreements unenforceable, and that courts govern the
determination of parental rights by specially crafted rules that create a
presumption of custody for the birth mother—were recommended for
gestational carrier surrogacy agreements as well as those where the
mother was genetically related to the child.
The proponents of the Brisman-Vitale “Gestational Carrier” statute
falsely claim that gestational surrogacy uses new technology unavailable
until relatively recently, and, therefore, the legislature should not
be guided by Baby M. By making this false claim, they hoped to
ignore the reasoning of that case, and ignore both the fact that
gestational carrier agreements were used as early as the 1980s, and the
commission’s report, which recommended that gestational carrier
agreements be outlawed.
The New Jersey Bioethics Commission Report discussed one gestational
surrogacy case that was already in the courts in 1990. In that case, the
contract was signed in 1989, and it was litigated in the California
courts when the birth mother sued for the return of the child. By 1991, a
whole year before the Bioethics Commission report was completed, that
case had been decided by an appellate court. The Bioethics Commission
considered all of the issues presented by gestational surrogacy and
concluded that every evil present, when the surrogate mother is
genetically related to the child, is also present when the surrogate is
not genetically related to the baby to whom she gave birth.
All of the statutes and public policies identified and analyzed by the Baby M Court apply equally to the gestational surrogate mother arrangement. The Baby M
opinion remains the best and most persuasive court opinion on policy
considerations for surrogacy arrangements, and the New Jersey Bioethics
Commission report is the most thorough and compelling analysis ever
produced concerning surrogacy in general, and gestational surrogacy in
particular. Earlier this year, many in the New Jersey Legislature
attempted to ignore both, until Governor Christie stepped in. More on
this tomorrow.
