The Buying and Selling of Babies

It is not some science fiction movie plot. It is real. Human beings are being manufactured and sold — right here in America.

Even more shocking is the fact that decades after the first commercial U.S. sperm bank was opened (1971), after the world’s first test tube baby was born (1978) and after the first U.S. court case regarding surrogacy played out (1986), this country still has no uniform law regulating how surrogate babies are created in a lab and brought into the world.

Let’s be clear at the outset. No one wants to deny a childless couple the right to have, raise and love a child. I cannot imagine the pain of an infertile couple longing to have a family. But at this late stage in the commercial surrogacy game there ought to be an agreed upon set of rules, regulations and laws on how it works — and what should be done when things don’t go as planned. There are lots of cases on record of surrogacy arrangements that have gone terribly wrong.

In 1986 I was assigned to cover a New Jersey custody case that resulted in America’s first court ruling on the validity of surrogacy. The so-called “Baby M” case was fascinating! A married mother of two named Mary Beth Whitehead answered a newspaper ad and agreed to be the surrogate mother for two New Jersey doctors, William, a biochemist, and Elizabeth Stern. Elizabeth, a pediatrician, suffered from multiple sclerosis and worried about the health effects of pregnancy.

Whitehead signed a contract and agreed to have the Sterns’ baby for $10,000. A doctor inseminated Whitehead’s egg with William’s sperm, and she became what is now called a “traditional surrogate” — one who has a biological connection to the baby. After the birth Whitehead could not bear to give up the child, named Melissa by the Sterns, and she and her family fled to Florida. Police found them and returned the baby to the Sterns. The stage was set for the precedent-setting court case.

During the trial Whitehead was vilified. Mental health experts labeled her as suffering from “narcissistic personality disorder” and called into question her stability. Her attorney referred to Whitehead as an “exploited” woman. Ultimately, a superior court judge ruled the surrogate contract was valid and, in the “best interests of the child,” the baby should live with the Sterns. Whitehead was stripped of her parental rights and shut out of her daughter’s life.

To underscore the legal vacuum surrounding surrogacy at the time, just 10 months later the New Jersey Supreme Court ruled that contracts to buy and sell babies went “against public policy” and should not be allowed. Whitehead’s parental rights were re-established, and she won visitation rights to the little girl nicknamed Sassy.

This legal limbo continues to exist today — nationwide — and at a time when the surrogacy market is “exploding,” according to a report from the Council of Responsible Genetics. Many states have no surrogacy laws on the books. Some appear to permit such arrangements. New Mexico, New Jersey, Oregon, Virginia and Washington state, for example, allow uncompensated surrogacy. But many other states hold that any contract for a baby born for money is simply unenforceable. Florida, Nevada, New Hampshire, Tennessee and Texas are the most surrogate-friendly states — as long as the buyers are a married couple.

To add to the confusion, surrogacy is no longer just about a willing woman being inseminated with the sperm of a known potential father. Advances in science have opened up all sorts of possible combinations — and potential for trouble.

Surrogates today can be the traditional kind, like Whitehead, or a “gestational surrogate mother” who agrees to carry the fertilized egg and sperm of two other people. She acts only as the host womb and has no genetic relation to the baby. You might think that this type of surrogate could cause no trouble after the birth.

Well, consider the case known by the initials, A.G.R. v. D.R.H & S.H. Again, it played out in New Jersey and came to court 20 years after the Baby M case. Two men — a legally married gay couple — decided to start a family. Lab technicians created an embryo for them using an anonymous donor ovum and the sperm from one of the husbands. The embryo was then implanted in the sister of the other husband. (You following this?) In 2006 the sister gave birth to twin girls and turned them over to the couple as stipulated in their surrogate contract.

A year later the sister was in court fighting for her parental rights — even though she had no biological connection to the babies! Having no law to guide them, the New Jersey courts again disagreed with each other. At first, the sister was recognized as the girls’ legal mother. The trio continued fighting over the twins until December 2011, when a superior court decision awarded full custody to the husband who had donated the sperm.

Thank goodness the anonymous donor of the egg that split and created the twins never came forward to also claim custody! You see how convoluted things can become when we mess with Mother Nature?

It is far past time for states to pass laws that create a clear-cut, irrevocable path for participants in surrogate arrangements to follow. Failure to do that is an open invitation to more and very painful legal battles. It can also create lifelong scars for the child everyone professes to love.