Babies for sale - New Birth Technologies call for rethinking the definition of family and individual

Public Interest, Spring, 1993 by Robin Fox

CAN YOU WRITE a commercial contract for a baby? Can a man buy his own child? Who owns the frozen embryos of a dead woman; can they be willed to third parties? It has been five years since the controversial and emotional "Baby M" case was legally settled, but we have barely begun to understand its implications.

The public read the headlines and moved on. But given advances in the so-called "New Birth Technologies" we are faced with a bewildering future for the very definition of the family, if not of the individual. In a world awash with rhetoric about family values, there are lessons to be learned from a close examination of the case and the public reaction to it.

We are a civilization obsessed with the model of the individual contractor as the ultimate social unit. In some ways, as Sir Henry Maine forcefully reminded us, the shift from social relations based on Status--what sociologists would now call "ascribed status"--to those based on Contract is the major shift in Western society over the historic period. The model for relations of Status was of course kinship--the family. A king was the father of his nation; God was the father of his people; the Church was the mother of us all. In the world of Contract, however, all parties are equal and autonomous contractors bound by their agreements. Society itself is such a contractual arrangement. The islands of Status, like slavery, have gradually been swept away, especially in the United States. Here, as Lawrence Friedman so graphically describes it, King Contract triumphed in the nineteenth and twentieth centuries as the model for all agreements between those acting rationally in their own interests.

One area held out for Status: the family. Or did it? This is the issue the Baby M case raised. And while there was indeed a settlement of sorts, it was an uneasy one, and one that was not convincing to a large segment of the American public. For Mary Beth Whitehead had not just demanded to keep "her" baby; she had challenged the power of almighty Contract. She issued this challenge in the name of motherhood. But as we shall see, motherhood, for all its hype, is a slender reed in the contractual wind.

A contract forbidding bonds

In March 1986 a baby girl was born to Mary Beth Whitehead, a housewife in Brick Township, New Jersey. It was her third child she--already had a girl (Tuesday) and a boy (Ryan); she called it Sara Elizabeth. Mr. Whitehead, however--at that point employed as a garbage collector--was not Sara's father. The baby had been conceived and born as a result of a contractual agreement between the Whiteheads and William and Elizabeth Stern, a biochemist and physician respectively, of Tenafly, New Jersey, whereby Mrs. Whitehead was artificially inseminated with Mr. Stern's sperm. The contract was drawn up on February 6, 1985 by a lawyer, Noel Keane, of The Infertility Center of New York, a private organization concerned with bringing together infertile couples and potential surrogate mothers. The Center's fee for this service was $7,500.

The motives of the parties seemed fairly clear at the time. Mrs. Stern was unable to bear children for medical reasons. Mr. Stern had lost all his family in the Nazi genocide and desperately wanted to have a child of his own blood as a kind of psycho-physical replacement for the lost kin. Mrs. Whitehead saw an advertisement for the clinic, and considering her family's marginal economic condition and the relative ease and pleasure with which she had already twice given birth, felt capable of performing as a surrogate mother. She was to receive $10,000 for her services and all expenses would be paid by the Sterns. The parties met, Bill and Betsy liked Mary Beth, and she felt well-disposed to them. Richard Whitehead at first was dubious but eventually agreed. The contract--or "Surrogate Parenting Agreement"--was accepted and signed.

Let us pause here to consider this all-important contract. Right up front it states, in Clause 2, that "the sole purpose of this Agreement is to enable William Stern and his infertile wife to have a child which is biologically related to William Stern." In the next clause it puts the whole issue on the line:

MARY BETH WHITEHEAD, Surrogate, represents that she is capable of conceiving children. MARY BETH WHITEHEAD understands and agrees that in the best interests of the child, she will not form or attempt to form a parent-child relationship with any child or children she may conceive, carry to term and give birth to, pursuant to the provisions of this Agreement, and shall freely surrender custody to WILLIAM STERN, Natural Father, immediately upon birth of the child; and terminate all parental rights to said child pursuant to this agreement.

So before any of the details--even before any mention of the artificial insemination--the contract insists that the natural mother of the child who must "conceive, carry to term and give birth to" it, should not "form a parent-child relationship" with it. Clearly this must refer to the post-birth situation since, we must immediately ask, how can the mother not form a relationship with the child to whom she has been so intimately attached for nine months? And if, as there is much evidence to show, the most fundamental point of this parent-fetus bonding process occurs at birth itself, then short of bypassing the actual birth process how can the mother voluntarily refuse to form such a bond?