Protecting the Mother’s Right Is Critical

Nancy Holmstrom

THE ARTICLE ON the Baby M case and the meaning of motherhood by Johanna Brenner and Bill Resnick was a thoughtful, balanced, unmoralistic presentation. I appreciate their criticism of biological essentialism and their emphasis on the larger context of the case and the social conditions that produce the desire for one’s own child.

However, I disagree with some of their concrete conclusions-at least, as I understand them. Specifically, I think their position regarding custody is inconsistent and I think there are good grounds, which do not stem from biological essentialism, for privileging the mother in a custody dispute stemming from surrogacy. Their position is overly abstract, in my opinion, and overlooks some important details of the case.

Brenner and Resnick say, “A woman has the 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” — with neither side having presumed priority.

However, the reason they give for favoring the Sterns in the Baby M case would-in general-privilege the father. The reason they favor the Sterns is that by agreeing to the surrogacy arrangement and not announcing a change of mind until after the birth, Whitehead allowed the Sterns to form expectations that made them expectant parents.

But this would be true in any surrogacy case. Any time such a contract is made, the man will become an expectant father. So Brenner and Resnick’s criterion for determining custody in the Stern/Whitehead case would invariably privilege the father, so long as the mother didn’t announce a change of heart right away. (I don’t mention the father’s wife because she doesn’t count legally — which shows two important things: that biology is given at least as much importance when the father is favored as when the mother is and how sexist the whole surrogacy business is.)

And just because the contract exists does not mean the pregnant woman is not an expectant mother. Something surely is growing in her body of which she can hardly fail to be aware! She is a pregnant woman who knows she will become a mother even though she does not (consciously) intend to raise her child.

Brenner and Resnick minimize the psychological effects of pregnancy and childbirth. Granted these effects are not inevitable; not every woman who has a child wants to keep it. But if a woman wants a child-consciously or unconsciously, as in Mary Beth Whitehead’s case — her experience of pregnancy and childbirth will create a bond to that particular child of a kind difficult (to say the least) to create in anyone else. Hence their point that “she can have another kid” is much too cavalier. (Once the child is born, of course, anyone could develop as strong a tie.)

The woman should always be allowed to change her mind because people simply should not “have the right” to commit themselves to something that will cause them such pain. Nor can people be required to know their own future minds with such certainty. These reasons for privileging the mother in a custody dispute do not rest on biological essentialism.

To allow the mother to change her mind does not mean that the father (or his wife) should be totally cut off from the child. Here is the place where Brenner and Resnick’s stress on the expectations created by the agreement is appropriate.

In my view, the father and his wife should be granted visitation rights on the same basis that holds in divorce cases. (Except that shared custody would probably not be a good idea in most such cases, given the high degree of good will and cooperation necessary to make such arrangements work.)

Such an arrangement would also be in the interests of the child; it is healthy for children to have strong attachments to people outside their immediate family. Needless to say, the financial responsibilities of a divorced parent should go along with those rights.

The Better Parent?

There are other arguments against Brenner and Resnick’s proposal that cases where the mother wants custody should be decided on the basis of the court’s judgment as to who would make the better parent.

Most important, I think it would be next to impossible in making such a judgment to eliminate the class bias that Brenner and Resnick acknowledge was a factor in the Baby M decision. In an ideal socialist society, this might be a reasonable policy, but that abstract issue is not the point here.

Second, I think it’s very important to minimize litigation in such cases, and leaving each case to be decided in terms of who would be the better parents would encourage endless court battles-which would almost invariably be damaging to the child. Whoever would be the “better” parent has to be weighed against the harm to the child of being taken away from the person(s) who’ve taken care of it.

At this point I would support the Sterns having custody of Baby M. Although I believe they should not have had the right to seize the baby, now that they’ve had her all this time, it would be terrible for her to be taken away. By ten months or so, babies can recognize certain people; as far as Baby M knows, the Sterns are her parents, given that they have been her primary caretakers during these critical months.

However, that does not mean she is not also very attached to Mary Beth Whitehead. And here it is crucial to note (something Brenner and Resnick ignore) that the court decision did not just grant the Sterns custody; it excluded Mary Beth Whitehead from having any contact with her baby at all. Aside from being gratuitously cruel, the decision reflects the bourgeois and patriarchal idea that a child is the exclusive property of the father.

For that reason, it is very important for all of us to stand clearly opposed to that decision. Mary Beth Whitehead should have the same visiting rights a mother would have in the case of a divorce in which custody has been given to the father. (Granted the potential confusion for Baby M in this arrangement, I’m afraid this is inevitable for her no matter what.) As to the question whether surrogacy should be legal, I’m not sure where I stand. Surrogacy bears very strong analogies to prostitution. Although I believe it would wither away under socialism, I think prostitution should be legal now. But I do think it is worse than other jobs and there should be social service systems to protect a woman.

The difference, however, is that surrogacy involved a third party — the child. (And furthermore, it’s potentially much more serious for the woman, particularly if she changes her mind.) I would favor whatever laws regarding surrogacy would best protect mother and child. The best way to do that, given the inherent problems, would be whatever would discourage surrogacy-cutting out the profit, making it terribly expensive for the father, or even making it illegal. Then the contract would simply be unenforceable, and the mother could change her mind with impunity.

November-December 1987, ATC 11