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Statutes Few, Moral Dilemmas Many In Enforcing Surrogate Contracts

January 25, 1987

HACKENSACK, N.J. (AP) _ Although a custody battle here for a child born under a surrogate contract is considered an unprecedented case, the controversy over the practice of surrogate motherhood dates back to the Bible.

When Sarah was unable to give her husband a child, Abraham impregnated a handmaiden.

Surrogate arrangements have always presented moral dilemmas, and there are few laws to guide those involved, say lawyers and others familiar with surrogate mothering.

In recent weeks, the issue has been the focus of a landmark court case in which a surrogate mother and the couple who hired her for $10,000 are battling for custody of the child, now 10 months old.

Superior Court Judge Harvey R. Sorkow, who is presiding over the no-jury trial here, is the first in the nation asked to rule on the validity of a surrogate contract. He also is to consider custody.

Sorkow has little more legal guidance on the issue than was available in Abraham’s time.

And while his decision will be binding only in New Jersey, attorneys believe the effects will be felt nationwide.

″This case will make an impact on many states - especially those that are leaning in the direction of regulating this practice, and even those that aren’t,″ said Dr. Doris Freed, co-chairwoman of the New York State Bar Association’s Surrogate Parenting Committee.

She and others say the popularity of surrogate mothering - a relatively simple, unscientific procedure - has created moral and legal confusion.

Statistics are difficult to find, but by most estimates, about 500 babies have been born to surrogate mothers in the United States in the past decade. Last year, there were about 65.

With an estimated 15 percent to 20 percent of American couples meeting the medical definition of infertile, the option of surrogate motherhood is becoming increasingly attractive, Ms. Freed said.

Opponents fear it may become an option for women who don’t want to interrupt their careers or education with a pregnancy, an argument that has been brought up in the New Jersey case.

At the same time, no state has passed a law regulating surrogate motherhood. ″To regulate is to legalize, and states aren’t ready to do that yet,″ Ms. Freed said.

Some states, such as New York, are moving toward passing legislation. A report from the state Senate Judiciary Committee released this month advocates having the Legislature define the legal responsibilities of the various parties in surrogate parenting.

Other states also have taken the issue seriously. But so far, the 21 that have attempted to pass surrogate parenting laws have failed.

Part of the problem, attorneys say, is that emotions run high and answers are difficult to come by. Roman Catholic and Jewish leaders have spoken against the practice, as have adoption advocates.

Dr. William Pierce, president of the Washington, D.C.-based National Committee for Adoption, said the organization finds surrogate motherhood ″inhuman″ because it forces mothers to give up their children.

″The committee opposes surrogate mothering as a method of obtaining a child and is strongly of an opinion that the practice should be outlawed,″ Pierce said.

Others have argued that the practice exploits poor women who enter into a surrogate contract - usually with well-to-do couples - only because they need money.

In the New Jersey case, Mary Beth Whitehead, a 29-year-old housewife, agreed to bear a child for William Stern, a biochemist, and his wife, Elizabeth, a 41-year-old pediatrician.

Under the contract arranged by the Infertility Center of New York, the couple was to pay Mrs. Whitehead $10,000 to be artificially inseminated with Stern’s sperm. Mrs. Stern planned to adopt the infant.

But after giving birth March 27, Mrs. Whitehead and her husband, Richard, changed their minds and refused to turn the child over to the Sterns, triggering the bitter court case. The Whiteheads have received no money.

The Sterns’ attorneys have argued that everyone entered into the contract in good faith and that Mrs. Whitehead reneged.

But the Whiteheads’ attorneys contend the contract should be declared invalid. Attorney Harold J. Cassidy said, ″There are some things money can’t buy.″

The few decisions by courts around the nation appear to disagree with this claim, Ms. Freed said.

In Kentucky, for example, the state Supreme Court ruled in 1986 that surrogate motherhood was not the same as baby selling, a practice prohibited in all states, Ms. Freed said.

Also, a Michigan appellate court ruled in 1981 that payment to a surrogate mother was not the same as buying a baby.

That was contradicted in Oklahoma, where the attorney general issued a 1983 opinion saying a surrogate contract is against state public policy.

Other decisions, meanwhile, have pertained to the parental rights of people who hire surrogate mothers. Michigan’s state Supreme Court overturned a lower court decision and ruled in 1985 that the rights of the biological father in a surrogate mother arrangement are protected under the Michigan Parenting Act.

In August, a New York state court ruled that the wife of the biological father may adopt a baby born to a surrogate mother.

In the District of Columbia, the Superior Court ruled in 1984 that a detailed ″factual inquiry″ should be conducted of the wife of the sperm donor before she is allowed to adopt the child.

The New Jersey case resumes Feb. 2, after an adjournment called to allow lawyers to prepare for the custody phase. That phase is expected to last three to six weeks.

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