Baby M, Family Love & the Market in Women

Against the Current, No. 9, May/June 1987

Johanna Brenner & Bill Resnick

EVERYTHING’S FOR SALE in the big city. When William Stem contracted with Mary Beth Whitehead to impregnate herself with his sperm, give the baby to him and his wife, and in return get his $10,000, it’s clear the figure of speech is becoming literally true. One of the last sacred spheres-the womb, child bearing-is entering the market.

At the last minute Mary Beth Whitehead reconsidered. She fled New Jersey. The Stems tracked her down in Florida and seized the baby.

The ensuing court case over Baby M’s custody raised profound issues: how to deal with this extension of the market, surrogacy; with the new reproductive technologies; and with the competing claims they foster.

What is the nature of motherhood? And as the market reshapes social relations and our sense of self, how are we to confront the desperation and withdrawal into private life that generates the selling and buying of babies?

Public Squalor and Private Need

Everything’s for sale but not all markets clear. The Bergen County Courthouse-where the trial took place-is about eight miles from downtown Manhattan. On any day during the trial New York City’s hospitals house 180 or so neglected or abandoned babies. Many stay for over a year-the city and state can’t find parents, Some 60,000 people live on New York’s streets.

The contrast haunted the case and became central for a group of left critics who formed during the trial. They argued: with all the suffering children, the social need, the babies awaiting foster or adoptive parents-if the Stems are so desperate to be parents, let them adopt. If there are not enough white babies to go around, let them give refuge to the needy children of the racially oppressed.

This is demagogic politics and shabby morality, demanding personal gesture where public and community action is necessary. Until the social conditions that create the need are changed, impulses to want a child that carries one’s biological heritage are very strong.

Until people can participate in childrearing without becoming biological parents, many will find their infertility a tragic burden. Until public life is rewarding, the search for personal fulfillment will lead to family dreams. This is the heart of the case.

The Family Dream

In late imperial America traditional bonds-the extended family, community, church, political affiliation, all solidarity networks-have been undermined. The politics and economics of the last twenty years have increased social squalor and blunted confidence in public remedial action.

So people have turned elsewhere; not to politics or community, but inward to family and outward to the market. What capital takes away, it gives back, in the form of commodities and services — finally, even family-for sale.

Surrogate mothers got lots of press. They wanted to help, to give, to bring happiness to the childless. Self-serving perhaps, but many swore they refused to accept money. They said they liked pregnancy, to give life. That was their impoverished vision of social action.

Mary Beth Whitehead seemed to begin with these same impulses, to give the gift of family. So the surrogates, the Whiteheads, the Stems, and their entranced audience shared the same basic vision, this idealization of personal life with baby.


The case had other disturbing aspects. Like many child custody cases, it reeked of class prejudice and paternalistic professional elitism, judging the contending parties by standards that systematically disadvantage women, especially those who do not conform to traditional feminine roles.

Instead of crediting the working-class Whiteheads’ strength and resilience for surviving hard times, the judge used their problems as ammunition for character assassination. The judge found for the Stems partly because they had more money and education; they could offer a quiet suburban lifestyle and piano lessons: the same grounds on which increasing numbers of women are losing their children in contested divorce custody cases.

A parade of hired professionals applied ridiculous and inappropriate standards to measure the two mothers’ capacities. Ignoring her success with her two existing children, psychiatrists contended that Mary Beth Whitehead’s parenting skills were defective.

When the child clapped Whitehead said “hooray;” the psychiatrist said she should have exclaimed “patty cake.” Her attempt to defend her-ten-year old son from a school counselor’s claim that he needed treatment was portrayed as obstructionism and resistance to authority.

Even the Stems, though clearly favored by the judge, had to accommodate to traditional notions of motherhood. When the Whitehead’s lawyer charged that Elizabeth Stem wouldn’t be a good mother because she was planning to resume full-time work, the Sterns changed plans: Elizabeth Stern promised to stay at home for the first two years or so.

Disturbed and angry (for good reason), many feminists came to support the Whiteheads (for the wrong reasons). They picketed the courthouse.

One picket shouted in Elizabeth Stern’s face, “How does it feel to take another woman’s baby?” Presented favorably by In These Times, this thoughtless assault expressed a fundamental misconception.

Parenthood is not essentially biological. It is social; it comes about when people develop expectations and assume responsibilities. Elizabeth Stem was an expectant mother during the nine months of Mary Beth Whitehead’s pregnancy.

The Stems did all those things new parents do-bought the equipment and necessaries, no doubt endlessly talked and fantasized about their child. And Mary Beth Whitehead, though pregnant, was not an expectant mother so long as she had no intention or wish to keep the child.

To deny Elizabeth Stem any claim to being Baby M’s mother is to accept the very biological essentialism that justifies traditional feminine roles.

Conservatives well understand this argument. The National Review defended Mary Beth Whitehead: “The bond between mother and child … is primary, indisputable. It is the bedrock of all societies that have ever existed. For a woman to let a child grow within her body, and all the while pretend it is not her child-that must be called a form of temporary insanity” (April 24, 1987, 29-30).

Yet, most surrogates have reportedly given up babies without regret, as have many women who have given up babies to adoption.

This is not to deny Mary Beth Whitehead’s claim. Her sense of connection to the child she had borne was genuine, if not more “natural” than are the feelings of those women who relinquish their babies. But her feelings and her biological connection to Baby M cannot be the basis for deciding who ought to have the child.

Custody or Contract Law?

On the other hand, to argue that surrogacy is simply a contract like any other, that Mary Beth “made her bargain,” and therefore must give up the child is unacceptable. Punitive and callous, the argument fails to recognize the psychological consequences of childbirth.

It is in recognition of this human experience-however differently women react to it-that adoption agreements give women a period following the birth in which they can change their minds.

Of course, in adoptions, the woman’s decision to keep her baby deprives the adoptive parents of any claim, whereas in surrogacy, the adoptive father’s biological tie to the baby does give him a claim under the existing law.

The laws governing both rights and obligations of biological paternity are not likely to be changed, because they are central to locating both control over and financial responsibility for children in the privatized family.

But even leaving aside both law and popular conceptions about the rights of fathers and the obligations of men who impregnate women whether they wish to be fathers or not, feminists and leftists ought not to argue for a woman’s special claim to parent a child, simply because she bore it.

A woman has a right to change her mind about giving up her child, but whether or not she has a right to parent the child ought to be decided as a custody decision involving the best interests of the child. It is not easy to accept this framework, because women and men do not participate equally in pregnancy, and the loss to the woman, when she wants the baby, seems more hurtful, more real and concrete, than the loss to the father deprived of a child. And not only the needs of the child, but those of the mother ought to count.

Still, neither the sacred right of contract nor the sacred bond of biological motherhood is appropriate grounds for deciding custody. Feminists and leftists were right to criticize and fight the class prejudice, the elitism, the repressive standards for assessing motherhood in the trial and the decision.

But in the end, to privilege Mary Beth Whitehead’s claim is to support the biological essentialism that justifies the sexual division of labor and the definition of women first as childbearers. It sanctions a commitment to privatized mothering based on a unique mother/child bond, and resistance to community and collective forms of childrearing.

Where does equity lie? Hard to say, but if we had to choose, we’d decide for the Stems. We say this, even recognizing that much popular sentiment rightfully went to the Whiteheads as working-class underdogs, while yuppies and middle-class professionals preferred the Sterns.

We would argue for the Sterns on grounds quite different from those of the judge or most of their supporters. They had counted on having the baby for nine months. If the Whiteheads had made clear their intentions earlier, the Stems would probably not even have contested the case. But the Whiteheads had allowed the Sterns to become expectant parents.

For Mary Beth Whitehead, the loss of Baby M was a real hurt. But she had two kids and could have another, whereas the Sterns were childless. Rough justice.

The Critique of Surrogacy

Surrogacy has generated heated debate. While the appeals court will doubtless maintain custody with the Stems, the judge’s enthusiastic, if faultily-reasoned, support for surrogacy contracts will likely not be ratified. Even if it were, legislation will certainly supersede.

Traditional patriarchal conservatives predictably attacked surrogacy. Freedom from the inevitabilities of natural reproduction also means freedom from traditional authority.

In their attack traditionalists raised some outlandish arguments. Should surrogacy be approved, then the artificial womb, now being developed, will follow. And then none but the do-it-your-selfer will go through the trouble of regular pregnancy.

Some feminists have similar fears that surrogacy will extend beyond infertility into the wholesale exploitation of working-class women as breeders for affluent women who wish to avoid the inconvenience of childbearing.

This strikes us as a very remote possibility. For it disregards the intense romanticization of pregnancy and childbirth that permeates our society. Biological motherhood is still fundamental to womanhood. Indeed, it is this very insistence on the sanctity of pregnancy and childbirth as a feminine badge of honor that makes surrogacy seem such a uniquely awful violation. Given the extreme attenuation of any sense of self-defined by work and social contribution, with self-regard located almost exclusively in the personal and private, surrogacy appears as the ultimate in alienation.

Wombs for Rent

The compelling critique of surrogacy raises neither futurist nightmares nor the Vatican’s wish to prevent the separation of sexuality and procreativity, but rather, feminist concern about the marketing of reproductive capacity. Rita Arditti argues:

“Commercializing childbirth means that the dynamics of the market will enter directly into one of the few realms of our lives that had, up to now, resisted that intrusion. The rules of the capitalist market, when applied to women’s bodies and reproductive power, institutionalize women as breeders and devalue motherhood. It turns children into commodities, making them into objects that can be bought, sold, or returned if defective. The commercialization of women’s procreative power promotes the exploitation of women and constitutes an attack on the dignity of all human beings. It should not be allowed to continue.” (Sojourner: The Women’s Forum, March 1987, 11)

Yet surrogacy seems to us no more an intrusion into human dignity and autonomy than many other modem extensions of the market. Now so omnipresent, markets tend to be invisible.

College students, without irony, talk not just about “investing” in their educations but about clothes and self-presentation to become “marketable.”

Character and Personality for Rent

Women in particular have always had to sell themselves, and the dynamics of the markets in spouses are clear to everyone, even if most cannot articulate it.

Whereas traditional working-class jobs require workers to simply sell labor and generally conform to management demands, many women’s jobs require continuous displays of charm, friendship, allure, and affirmation of the views of the customer.

The occupational hazard of most personality-dependent jobs is the deformation of self. And OSHA doesn’t offer safeguards. Is surrogacy more intrusive and destructive to autonomy and the integrity of the self than eight hours a day for $4.50 an hour in Pantry Pride or K-Mart, firms that teach proper presentation and penalize its absence?

Surrogacy subjects the woman to controls: not smoking or drinking, visits to the doctor, notice to the prospective parent’s agents on many subjects. But there is relatively little face-to-face interaction, and really no demand to conform personality, beliefs, character to the boss’s requirements. Years back Richard Whitehead lost a job; Mary Beth Whitehead went to work, as a dancer in a tavern. For women like Mary Beth White­ head, $10,000 for nine months as a surrogate, with no day-to-day responsibilities, with freedom to think and act as one likes, may amount to far less of a market intrusion on the fundamentals that determine human autonomy and dignity than any other option now available to her.

Some left critics have also attacked surrogacy as exploitation of the poor, the $10,000 amounting to $1.57 an hour. In fact it is the relatively rich buying the services of the middling layers; the very poor and minorities are not in demand.

Class exploitation is a way of life here. At $4 per hour, fifty-two forty-hour weeks earn $8,320, no vacation, rarely medical benefits and costly travel to work. Even though pregnancy is risky, surrogacy’s $10,000 plus medical care and you can keep your regular job-will look like easy money to some women.

Surrogacy A Woman’s Right?

Even if surrogacy is no less alienating or exploitive than much work, still it is undesirable.

Surrogacy advocates appropriate the language of rights that feminists use to defend abortion. A representative of the surrogate mother association asserted, “We do have a right to make our own decisions on procreation like this.”

Defenders also argued the constitutional right to privacy: the state has no business interfering; a woman has the right to do what she wishes with her body. But there are crucial differences between abortion and surrogacy. Whereas abortion is absolutely essential to women’s autonomy, the benefits of surrogacy are only personal, and the practice does not advance women’s interests. A woman’s right to make decisions about her own body should be defended. However, the marketing of wombs in these terms undermines support for feminist claims.

These arguments ignore the social context. They don’t unite people. They speak to no higher principle or vision. They can easily be attacked as arguments for privilege and selfishness, for putting private desire ahead of public good.

Should Surrogacy Be Outlawed?

On no issue in this case is there an easy or painless solution. Every choice involves difficult trade-offs. What to do about surrogacy is no exception. Doing nothing at all would accelerate the institutionalization of brokers and markets, with substantial contracts rewarding the premium breeders (tall, educated, with previous healthy kids). Fertile, healthy presentable women would be encouraged to see surrogacy as one money-raising option.

Yet outlawing surrogacy is unlikely to work. Partly because abortion and single motherhood are acceptable alternatives to adoption for pregnant single women, fewer infants are available. With infertility on the rise-over 10% of all couples and the supply of “appropriate” (that is, infants and white) children on the wane, the number of couples wanting to use surrogates will increase.

Entrepreneurs will take advantage of that market one way or another. At the same time, greater sexual freedom for women and a sense of a woman’s right to control her body makes it easier for women to “choose” surrogacy. Another genie is out of the bottle.

Although criminalizing surrogacy has symbolic value as a sort of announcement that society disapproves, a ban would create an extensive underground trade, unless penalties were extremely severe. Legislatures are unlikely to enact such laws. And even if they did, few prosecutors would indict or juries convict.

A ban with lesser penalties, however, would create the undesirable consequences that result when illegal activities are visible and lucrative. As in the case of prostitution the gains from official “disapproval,” if any, would be offset by the subjection of the woman to miserable and exploitative conditions for the women produced in part by criminalizing their trade.

In prostitution, most buyers and sellers meet not on the streets but through services, middle people-hotel employees, bartenders, taxi drivers, talent agencies, madames and misters. Arrangers will also be showing wombs for rent. Making surrogacy illegal would increase the price and decrease the take by the surrogate woman; the extra profit would go to the arranger.

An unenforced ban creates the worst of both worlds; it underlines women’s special and precious “natures” without affording any protection.

What Should Be Done1

We need to find some way to discourage the practice while protecting the woman who does it.

Regulation seems the best way to go. But every suggestion has a downside.

Declaring surrogacy contracts void and unenforceable would protect surrogate mothers who change their minds. Some proposals require all contracts to include a grace period for maternal reconsideration, modeled on adoption laws.

But these proposals also give the surrogate mother an absolute right to the child, unduly privileging the mother on an essentialist basis. In surrogacy, changes of heart leading to requests for custody or visitation rights by the mother should be handled as custody cases.

In addition, contracting parties would be informed at the beginning that if the surrogate reconsiders relatively early in the pregnancy and informs the father, the father’s expectations would be seen as not developing and the father’s claims generally considered minimal.

By a similar logic, any contractual agreement by the woman to abort a “defective” fetus or to relieve the father from responsibility should she decide to keep the child, would not be enforced by the state.

Surrogate contracts could not legally extinguish a woman’s right to make a decision about abortion. Nor could they negate paternal financial responsibility for the pregnant woman’s health expenses or for child support should a woman decide to keep the child, if the child is born requiring extensive medical treatment, institutionalization, etc. In general, existing law which determines the rights and responsibilities of biological parents, whether they are married or not, would be used to settle disputes.

The consequence of this approach is, of course, to increase the risks to the contracting parties, particularly to the biological father.

Voiding surrogacy contracts and forcing those purchasing surrogacy to assume more risks will discourage some potential buyers and will somewhat protect women surrogates as workers. But it will not slow the development of a market in wombs. Dealers will try to minimize the buyers’ risks by more careful psychological screening, insurance policies to cover expenses in case a “deformed” child is produced, and by negotiating higher fees to the woman as an additional incentive for giving up the baby.

We prefer removing surrogacy from the private market. Currently proposed legislation in New York would make brokering legal only by authorized non-profit agencies; require judicial approval (as in adoption) and limit payment to medical expenses and “lost wages.”

To succeed, this scheme would have to include penalties directed against the brokers for unauthorized surrogacy. Otherwise, a black market would still develop. Fairly high compensation for “lost wages” would also help prevent a black market offering surrogate mothers wages higher than in the public sector.

The downside of this regulatory scheme is that making surrogacy, like adoption, a public function legitimizes women’s marketing their wombs. And it sets up professional social service agencies as yet another arbiter of women’s choices.

A Left Position

Opting for regulation may seem a kind of moral relativism that leaves no place for the just anger women feel about the exploitation and cheapening of women that surrogacy entails. But in addressing surrogacy the left need not be confined to selecting among the available bad choices. We can use discussion of surrogacy to expose the moral bankruptcy of a system that creates the incentives for so many ugly practices.

Surrogacy could be virtually eliminated. But not through legal proscription. The Stern/Whitehead confrontation should be understood as desperate efforts to perfect personal life when public life and community feeling become more impoverished. Surrogacy, like prostitution, would decline with a social restructuring that changed the pressures on all parties to the transactions.

• Honorable, creative, reasonable paying work for everybody would reduce the number of women willing to rent their wombs or bodies, or more important, shape character and personality for pay.

• Infertility would be less of a deprivation and surrogacy buyers much fewer in a society that offered a rich public life took collective responsibility for children and extended meaningful participation in childrearing to people who are not biological parents.

• The haunting need of so many children-millions injured by poverty, thousands stuck in inadequate social service systems-should not be allowed to fade from view. They would gain the most from these changes.

We have argued that surrogacy will only decline with fundamental restructuring of work, pay and public life. Some of surrogacy’s critics would welcome those changes. But conservative and establishment liberal opponents would not. Their moral revulsion against surrogacy is in-: authentic, for they portray themselves as defenders of women’s integrity and autonomy without confronting the system that subjects and degrades.

This hypocrisy can be attacked. On issues like surrogacy-and indeed so many market profanings of human values-the left can seize the high ground.

May-June 1987, ATC 9

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