Doubling Down on Baby M: New Jersey's Ongoing Resistance to Surrogacy

Every first-year law student learns the adage that "hard cases make bad law." Occasionally, state judges and legislatures manage to do likewise. That is certainly the result of a recent Superior Court ruling in New Jersey that vastly expands the precedent of the already highly-misguided Baby M decision of 1988, which effectively outlawed surrogate motherhood in that state. Ruling In The Matter of Baby M, the New Jersey Supreme Court found that surrogacy contracts -- such as the one Mary Beth Whitehead had entered into with William and Elizabeth Stern -- violated public policy and would not be legally enforced. In that instance, Ms. Whitehead had been artificially inseminated with Mr. Stern's sperm after contracting to surrender the infant at birth for $10,000, but later reneged on her agreement. In light of the high court's unfortunate judgment, New Jersey couples arranging surrogate births have ever since been forced to seek carriers in other jurisdictions. In 2005, however, accountant Donald R. Hollingsworth and his husband entered a distinctly different agreement with Hollingsworth's sister, Angelia Robinson, in which she agreed to serve as a gestational carrier for progeny -- twin girls, born in 2006 -- conceived with Hollingsworth's sperm and an egg provided by a third-party donor. So while "Baby M" was technically Whitehead's genetic offspring, Robinson merely gestated the twins and contributed nothing to their genetic makeup. Judge Francis Schulz could have used this distinction to undo some of the damage rendered by the Baby M verdict. Instead, he chose to see the cases as largely indistinguishable. His ruling against the Hollingsworths stands as a major setback for gestational surrogacy and artificial reproduction. If it is allowed to remain law, it threatens parental opportunities for gay couples and, as significantly, undermines the reproductive autonomy of women.

The premise underlying the New Jersey Supreme Court's ruling in Baby M is that surrogacy contracts have the potential to exploit women. Chief Justice Robert Wilentz acknowledged that often "surrogacy may bring satisfaction, not only to the infertile couple, but to the surrogate mother herself" and that "many women may not perceive surrogacy negatively but rather see it as an opportunity," but he nonetheless emphasized that legalized surrogacy might result in the "potential degradation of some women." Surrogates, the court suggested, might second-guess themselves. Or act under the duress of economic need. In short, the fact that Whitehead consented to use her body as a surrogate was entirely irrelevant, because there are some acts to which nobody is permitted to consent. As well-meaning as this approach to the matter might have been, its underpinnings are inescapably sexist. (One cannot help recalling Justice Brewer's equally well-intentioned yet deeply-misguided opinion in Muller v. Oregon, through which the United States Supreme Court upheld a maximum work-hours statute that applied only to females.) There are few occupations in the world for which either gender is uniquely qualified, yet, at least with our present technological limitations, serving as a surrogate fetal carrier is one of them. One of the only others is serving as a sperm donor -- and, while sperm donation may be controversial as it pertains to offspring, one never hears legislators or courts worried that male donors will be "degraded" by the process. The double-standard is apparent. If men could serve as surrogates, I suspect they would be admired as entrepreneurs.

Obviously, no woman should ever be forced into serving as a surrogate. At the same time, what business does the state have in denying all women such a promising economic opportunity because, in theory, some potential surrogates may regret their choices? For many women, the income generated through surrogacy could mean a college education, or a down-payment on a home, or a chance to start a new business. Or, if done altruistically, the act might result in a deep sense of personal satisfaction gained from helping infertile or same-sex couples -- a gratification akin to that enjoyed by kidney donors.

I am not arguing that all women would make that choice. Or even that it is a wise one. However, unlike New Jersey, I have enough faith in women to let them decide the question for themselves. If autonomy is good for the gander, it is assuredly good for the goose too. That is not to say that corollary ethical concerns won't result. The most challenging moral dilemma relating to surrogacy, which has yet to arise, is whether a woman might contract away her abortion rights when carrying a genetic embryo belonging to another couple, particularly if that couple possesses only a limited number of embryos to implant. That sort of "no termination" contract -- which does approach involuntary servitude -- might indeed violate public policy. In contrast, a surrogacy contract that provides a loving couple with a wanted infant and a mother with economic compensation seems like a collective good. If the state's concern is economic exploitation, the solution would be setting a minimum price for those arrangements that involve any compensation at all.

Some opponents of surrogacy focus not on the degradation of the mother, but upon the potential harm that theoretically may befall the offspring. However, there's no reason to believe that surrogate babies will be any worse off than other children -- and several good reasons to think that they will end up better off. The very fact that an individual or couple is willing to go to such great lengths to obtain a baby suggests that the infant has a greater likelihood of entering a loving family. Far preferable to be the product of surrogacy than the spawn of a couple who does not want a child, but lacks the common sense or decency to use birth control. Some critics may argue that offspring will be harmed by knowing that they were gestated for cash -- but whatever that theoretical harm might be is surely balanced out by the knowledge that their parents wanted them so much that they were willing to pay for them. Moreover, the existing evidence from the Baby M case is that Melissa Stern, who was raised by William and Elizabeth, turned out to be a fine young woman who loves her real family very deeply and severed Ms. Whitehead's parental rights at the first legal opportunity.

The sad truth is that many of those who oppose surrogacy are hostile to all forms of artificial reproduction and to non-traditional families more generally. Other critics allow their sympathy for women like Ms. Whitehead and Ms. Robinson -- the proverbial "greasy wheels" who have second-guessed themselves -- to distract their attention from the thousands of women and families who have benefited from such arrangements. Alas, making poor personal choices is not the same thing as being exploited.

The American Bar Association has been working to standardize state surrogacy laws across the country, action that is long overdue. Children need certainty in their familial relationships and couples need protection from disgruntled surrogates who might seek to use varying state laws to disrupt that certainty. One such glaring and horrific betrayal was recently reported in the New York Times: A Michigan woman named Laschell Baker allegedly advertised to serve as a gestational surrogate for a "Christian couple" and gave birth to twins, Ethan and Bridget, for the childless Amy and Scott Keloe, who had provided the fertilized egg and had paid a small fortune for the implantation. Later, when Baker discovered that Amy Keloe had a history of prior treatment for mental illness, she took perverse shelter in Michigan's lack of a surrogacy statute to demand the children's return. Beyond the glaringly disturbing aspects of this particular case -- the overt bigotry against non-Christians and the mentally-ill -- the tragedy makes clear that, without strong legal protections, families formed via the services of gestational carriers remain precariously at the mercy of those surrogates' whims and prejudices. Moreover, if states to do not embrace surrogacy and clarify their laws, it is only a matter of time before much of the surrogacy trade shifts to India, where a gestational carrier market already thrives, outsourcing yet another promising economic opportunity for women.

Judge Schultz attempted to frame his ruling against the Hollingsworths as unavoidable, but the truth is that he had multiple legal paths to avoiding the Baby M precedent. He might have placed greater weight on the fact that, unlike Mary Beth Whitehead, Robinson has no genetic connection to the children. She is less like a genuine parent and more like a relative who generously agrees to look after a child for nine months, and then declares that, as a result of that supervision, the child belongs to her -- the only difference here being that a fetus, rather than an actual child, was in her care. After noting that distinction, Schultz could have relied upon the substantial pro-surrogacy case law in other states that has evolved since 1988, most notably the California Supreme Court's far more compelling Johnson v. Calvert decision, to guide his reasoning toward a verdict upholding the contract. Or he might even have indirectly "overturned" Baby M in all but name by ruling that, because the appealing surrogate was acting in violation of her contract and hence proceeding in bad faith, placing the baby in the hands of the other party was always and inherently in the best interests of the child, the standard preferred by the Baby M court. Judge Schultz, of course, is certainly entitled to his opinion -- which, in this case, counts for much more than mine. But nobody should be fooled into believing the outcome of this case to have been inevitable or predetermined as a matter of law.

New Jersey was once a pioneer in the rights of women. Its post-Revolutionary Constitution granted women the right to vote from 1776 until 1807 -- making it the last nineteenth century holdout against those opposed to women's suffrage. How discouraging if the state were now to become known as the final holdout against reproductive contract rights for women. The time has come for the solons of Trenton to intervene.