whose child is it, anyway?

For thousands of years, we Jews had the answer. Since motherhood could not be disputed, the child always took the religion of the mother.

With advances in fertilization techniques, such distinctions have long since become moot. And I find myself, once again, considering the legal and emotional intricacies of surrogacy. (Regular readers of this space will recall my involvement with the Baby M case as a fledging Asbury Park Press reporter. For background just click on the December blog archive.)

And once again, it’s a New Jersey case that brings it to the forefront. Several weeks ago, a state judge gave a gestational surrogate of twin girls the right to seek primary custody. He ruled her the children’s legal mother, although there is no genetic connection. Experts hold that if this ruling stands it could expand the rights of gestational surrogates by making it indistinguishable from traditional surrogacy.

In 2006, Angelia G. Robinson, had the girls for her brother and his male spouse The embryos were created from anonymous donor eggs and fertilized with sperm from the spouse. The girls and went to live with the male couple in Jersey City. But in March 2007 Ms. Robinson filed a lawsuit seeking custody, alleging that she had been coerced into the arrangement.

Judge Francis B. Schultz relied heavily on the precedent established by the New Jersey Supreme Court in 1988 in the case of Baby M. In that case, Mary Beth Whitehead, carried her own genetic child for another couple after artificial insemination with the man’s sperm. After Ms. Whitehead decided she wanted to keep the baby, the court ruled a fit mother’s maternal rights could not be terminated against her will. Judge Schultz ruled the lack of a genetic link irrelevant.

The lawyer for Sean and Donald Hollingsworth, said the case was of importance to gay men and lesbians because of their reliance on reproductive technology to have children. It illustrates the legal complexities of gestational surrogacy, in which a woman carries unrelated embryos created in a Petri dish. Although a gestational surrogate in Michigan recently got custody of twins she carried, courts in other states have upheld the rights of people who contracted with gestational surrogates.

I find myself deeply ambivalent on the subject.

The NJ lawyer in this recent case also represented Whitehead, and is among those who consider surrogacy exploitation of women, where those who can afford it take advantage of their less affluent sisters. I’m not sure I agree. Yes, there are women who have children with ease. And I can see little wrong with them using their abilities. I don’t even think it’s wrong for them to make some money at it. It can be the ultimate win-win.

I can also feel for those who find it impossible to part with children they have sheltered inside their bodies, who have shared their blood and been soothed by their heartbeat—whether or not they share DNA.

The problem lies in not being sure in which camp a potential surrogate falls. Even she may not know. When I was in my 30s, a couple, a friend of a friend I barely knew, asked me to carry their child. It was extremely flattering, although I never gave it serious consideration.

I was one of those women who gave birth with ease, at 21 and 23. I enjoyed my pregnancies and intended to have more children, but my marriage ended soon after and it never happened. But I knew deep inside that I could never voluntarily part with a child of my body.

We all know people who have adopted. These children are loved no less for the lack of a genetic connection. How can those who emerge from our body have less of bond? It matters not if they begin their journey in a Petri dish or a night of passion.

memories of Baby M redux

A front-page story in today’s New York Times updating the status of surrogate parenting in the U.S. again triggered a flood of images, so I am reposting this piece from last May. This post continues to generate far and away the most hits of any other. Surrogacy remains an unregulated minefield of heartache.

Twenty-two years ago, I was a fledging reporter with the Asbury Park Press in New Jersey when we were ground zero for the story of stories. I've always thought of it as the flip side to abortion. It was my immersion into pack journalism.

Melissa Stern is now 23 years old. Back then she was known only as Baby M, an infant at the center of a landmark custody battle revolving around surrogacy.

First a recap:

Mary Beth Whitehead of Brick Township, answered an ad in the APP to help infertile couples. Whitehead signed a $10,000 surrogacy contract with William and Elizabeth Stern of Tenafly, agreeing to be inseminated with his sperm and then give the baby up to the Sterns.

But Whitehead refused to turn over the child, whom she called Sarah, invoking a media circus worthy of a TV movie. Actually, I think it was made into one. The Brick police raided the home, returning the infant to the Sterns, whom they had named Melissa. Whitehead sued for custody.

Among all the ethical and cutting edge science questions, there was the “class” issue. Did the Sterns affluence, that of a biochemist and a pediatrician, give them undue advantage over Whitehead, a high school dropout married to a sanitation worker?

(an aside: Local newspaper reporters would chaff at calls the Whiteheads were “working class”. Her husband's salary of $35,000 was considerably more than any of us made at the time. So much for a college education.)

On March 31, 1987, Superior Court Judge Harvey Sorkow upheld the contract, terminating Whitehead’s parental rights and taking Elizabeth Stern to his chambers to adopt Melissa.

On that day, I joined the flood of media camped out on Whitehead’s lawn in the now familiar scene, awaiting that decision. I was petrified and overwhelmed, decidedly out of my league and eager to prove myself.

As the hometown paper, I felt special pressure. After all, her front lawn was less than 10 minutes from my own. I was on first name basis with many of those Brick cops she so detested. I knew my paper expected me to find some fresh angle to a story beaten to death, some way in through the barred door to the emotions inside.

I watched hot-shot broadcast media types so desperate they interviewed young children milling about on their bikes who parroting their parents’ words proclaimed: “a contact is a contract.”

Then the familiar “slap” of a newspaper hit the driveway, our newspaper.

The Press smartly paired me with one of out most talented and aggressive photographers who had been shadowing Whitehead for the length of the story. He immediately slapped the paper into my hands and shoved me toward the front door. I took a deep breath, swallowed and knocked. A beat later I was looking into an extraordinary pair of crystal blue eyes. She was indeed striking. Newspaper photos didn’t do her justice.

Mary Beth smiled and reached for the paper. She was gracious but unyielding. I failed in my mission to cross the threshold and the surging crowd behind me fell back, although Tom got off a few shots.

In the end, with a bit of insider info, I was able to slip away from the pack and interview the sister-in-law at her house several blocks away. It was a second hand story, but I was the only one with it, earning me a bylined story running along the bottom of the jump page. At least I didn’t shame myself.

Whitehead appealed by the way, and on Feb. 3, 1988, the New Jersey Supreme Court voided the contract and adoption, restoring Whitehead as Melissa’s mother with visitation rights. They ruled a fit mother cannot be forced to give away her baby. In this case, a contract was not a contract.

With medical advances, gestational carriers, who have no genetic relationship with the children they bear, have since replaced paid surrogates in most cases. But the shadow of Baby M lingers in New Jersey, barring such carriers from receiving more than medical and legal expenses; compelling them to give birth outside the state to collect a fee.

memories of Baby M

A story on CBS Sunday Morning updating the status of surrogate parenting in the U.S. brought forth a flood of images.

Twenty-two years ago, I was a fledging reporter with the Asbury Park Press in New Jersey when we were ground zero for the story of stories. I've always thought of it as the flip side to abortion. And it was my immersion into pack journalism.

Melissa Stern is now 23 years old. Back then she was known only as Baby M, an infant at the center of a landmark custody battle revolving around surrogacy.

First a recap:

Mary Beth Whitehead of Brick Township, answered an ad in the APP to help infertile couples. Whitehead signed a $10,000 surrogacy contract with William and Elizabeth Stern of Tenafly, agreeing to be inseminated with his sperm and then give the baby up to the Sterns.

But Whitehead refused to turn over the child, whom she called Sarah, invoking a media circus worthy of a TV movie. Actually, I think it was made into one. The Brick police raided the home, returning the infant to the Sterns, whom they had named Melissa. Whitehead sued for custody.

Among all the ethical and cutting edge science questions, there was the “class” issue. Did the Sterns affluence, that of a biochemist and a pediatrician, give them undue advantage over Whitehead, a high school dropout married to a sanitation worker?

(an aside: Local newspaper reporters would chaff at calls the Whiteheads were “working class”. Her husband's salary of $35,000 was considerably more than any of us made at the time. So much for a college education.)

On March 31, 1987, Superior Court Judge Harvey Sorkow upheld the contract, terminating Whitehead’s parental rights and taking Elizabeth Stern to his chambers to adopt Melissa.

On that day, I joined the flood of media camped out on Whitehead’s lawn in the now familiar scene, awaiting that decision. I was petrified and overwhelmed, decidedly out of my league and eager to prove myself.

As the hometown paper, I felt special pressure. After all, her front lawn was less than 10 minutes from my own. I was on first name basis with many of those Brick cops she so detested. I knew my paper expected me to find some fresh angle to a story beaten to death, some way in through the barred door to the emotions inside.

I watched hot-shot broadcast media types so desperate they interviewed young children milling about on their bikes who parroting their parents’ words proclaimed: “a contact is a contract.”

Then the familiar “slap” of a newspaper hit the driveway, our newspaper.

The Press smartly paired me with one of out most talented and aggressive photographers who had been shadowing Whitehead for the length of the story. He immediately slapped the paper into my hands and shoved me toward the front door. I took a deep breath, swallowed and knocked. A beat later I was looking into an extraordinary pair of crystal blue eyes. She was indeed striking. Newspaper photos didn’t do her justice.

Mary Beth smiled and reached for the paper. She was gracious but unyielding. I failed in my mission to cross the threshold and the surging crowd behind me fell back, although Tom got off a few shots.

In the end, with a bit of insider info, I was able to slip away from the pack and interview the sister-in-law at her house several blocks away. It was a second hand story, but I was the only one with it, earning me a bylined story running along the bottom of the jump page. At least I didn’t shame myself.

Whitehead appealed by the way, and on Feb. 3, 1988, the New Jersey Supreme Court voided the contract and adoption, restoring Whitehead as Melissa’s mother with visitation rights. They ruled a fit mother cannot be forced to give away her baby. In this case, a contract was not a contract.

With medical advances, gestational carriers, who have no genetic relationship with the children they bear, have since replaced paid surrogates in most cases. But the shadow of Baby M lingers in New Jersey, barring such carriers from receiving more than medical and legal expenses; compelling them to give birth outside the state to collect a fee.