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.