By DONALD DeMARCO
New York’s Gov. Andrew Cuomo has proposed a new law that would remove the ban on surrogacy contracts that has existed since 1992, thus making commercial surrogacy legal. The bill is expected to pass, allowing New Yorkers, for the first time, to pay a woman to have a baby for them through in vitro fertilization. The typical cost for such a procedure is somewhere between $45,000 and $50,000.
According to Cuomo, “New York’s antiquated laws are discriminatory against all couples struggling with fertility, same sex or otherwise.” Critics of the bill, on the other hand, have pointed out that commercial surrogacy discriminates against infertile couples who cannot afford such a high cost as well as against the “carrier” (the pregnant woman) who may bond with the baby and want to raise the child herself. Also problematic, is that this procedure creates an opportunity for two homosexual men or a transgendered couple to have and raise a child.
Cuomo’s commercial surrogacy bill came just a few days after New York State made it legal to abort a baby up until the time of birth. There is a strange irony here in that it is legal to abort an unborn child, conceived through natural intercourse, at any time during pregnancy, while it is urgent to pay for a child, conceived artificially, who will be brought to term. In this scenario, marriage, conjugal intimacy, the child in the womb, and motherhood itself are all devaluated. A law could hardly be deemed “antiquated,” as Cuomo claims, when it was enacted to protect all of these values.
The most famous episode involving surrogacy was the Baby M case. Early in 1985, William and Elizabeth Stern commissioned Mary Beth Whitehead to gestate a child for them. They agreed to pay Mary Beth $10,000 for her services, but nothing if she miscarried during the first four months. After rejecting the applications of 300 women, the Sterns found Mary Beth Whitehead to be the perfect surrogate mother. But Mary Beth bonded with her child and demanded to raise it as her own.
Then, the Sterns found 35 reasons why she should not have custody of the child.
Baby M, whom the Whiteheads called Sarah and the Sterns called Melissa, was born on March 27, 1986. The newborn child smelled her mother’s milk and drew closer to Mary Beth. A court-appointed chaperon stationed at the hospital interceded to prevent her from nursing. Nonetheless, the bonding that had taken place over a period of nine months had had its effect. “Something took over,” Mary Beth told the court. “I think it was just being a mother.”
After a 32-day trial, Judge Sorkow read his 121-page ruling and awarded full custody to the Sterns. On February 1988, the New Jersey Supreme Court invalidated the surrogate contract between the Sterns and the Whiteheads stating as follows: “We invalidate the surrogacy contract because it conflicts with the law and public policy of state.” In the meantime, the Whiteheads divorced and Mary Beth remarried and bore her new husband two children.
The Baby M case was an unmitigated disaster and helped to form a National Coalition Against Surrogacy. The testimony of one of its members is truly heartbreaking. Mrs. Laurie Yates of Michigan testified that she suffered a miscarriage and was forced to take fertility drugs to have another child. This surrogate mother gave birth to twins and then proceeded to seek custody. She eventually settled out of court for visitation rights. “Surrogacy was the biggest mistake of my life,” she averred. It broke her family’s finances, strained her marriage, and, she feared, adversely affected her daughter. Cases such as this are numerous.
Surrogacy contributes to the continuing erosion of motherhood. Is the “surrogate,” who conceives, gestates, and delivers a child, not the mother? Is the commissioning person who pays another woman to carry her child the real mother? Or is the woman who provides the egg but does not commission the gestating woman to bear a child the real mother? Furthermore, who would be the “mother” when the commissioning couple is transgendered? Would a transgendered male qualify for motherhood? The erosion of motherhood inevitably leads to the erosion of the family and the erosion of society. Andrew Cuomo would do well revisit his notion of discrimination.
It should also be pointed out that the commissioning couple does not simply want a baby. It wants a healthy baby. In the Malahoff-Stiver case, Alexander Malahoff sued Judy Stiver for “not producing the child he ordered” when her child was born with microcephaly and a strep infection. A Tennessee woman who served as a surrogate for a Michigan couple was an alcoholic and gave birth to a child with fetal alcohol syndrome who needed medical treatment.
It is a small wonder that commercial surrogacy has been outlawed in most countries in the world.
One may have a great deal of sympathy for the married couple unable to have a child. Yet, it is most imprudent to adopt a method of redressing the problem that is unjust to the child, exploitive of the mother, and potentially damaging to both marriage and the family.
Commercial surrogacy is not a private transaction, like buying a car from a dealer. It purports to commercialize not a product but a living human being. In the final analysis, the good of the individual or a married couple must be in harmony with the good of society. To view commercial surrogacy in isolation from a host of other problems it has already caused and will continue to cause is to be myopic in the extreme.
One will find no such myopia in reading the conclusion of Dignitas Personae (2008): “The creativity of man and his technical-scientific capacities in this matter should, however, be at the service of the human person, for the good of the spouses and their children, without ever seeking to replace or to substitute human procreation itself.”
(Dr. Donald DeMarco is a professor emeritus of St. Jerome’s University and an adjunct professor at Holy Apostles College and Seminary. He is a regular columnist for the St. Austin Review. His latest books, How to Navigate through Life and Apostles of the Culture of Life, are posted on amazon.com.)
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