Volume 5, No 4, Winter 1995

Book: SACRED BOND: THE LEGACY OF BABY M

In mid-1980s, the custody challenge for Baby M stirred a big controversy in the American public. She was conceived through artificial insemination of her "surrogate mother" by her father's sperm with a prior contract that would allow him to have full custody of her, and her mother to discontinue her parental rights in exchange for a fee, $10,000 and medical expenses that are not covered by her insurance. It is when her mother refused the payment and decided right after the giving birth to keep her that public first heard of this case.

After spending first four months of her life in hiding with her mother, Baby M was removed from her by a court order, which also forbid her mother from breast-feeding her, and handed over to the father on the grounds that the mother signed a contract to do so. Public opinion was almost unanimously on the side of the father and his adopting wife.

The author, puzzled by the public's negative feelings toward the birth mother, decided to examine the very institutions that generated such an ordeal: surrogacy and adoption. This book is about her struggle to stand up to the forces that generate and allow these controversial policies. She actively supported Baby M's mother, testified in her favor in front of the New Jersey Supreme Court, managed a campaign to promote birth mother's rights.

Throughout her book, Chesler charges that only in a patriarchal society a woman's labor and attachment to her offspring would be regarded less valuable than the sperm of the father and a contract. She mocks sacrilege of contracts in a "civilized" society and how they could be replacements for natural and sacred bonds. Not only surrogate mothers but also the mothers in regular marriages (she calls them "contracted to their husbands") might not escape this fate, she warns. In more than half of the cases when the father challenged the mother for the custody of children, she observes, he wins. "Many fathers view maternal custody as an encroachment on their rights," she argues. And the criterion, "the best interest of the child", almost always favors the parent other than the economically underprivileged mother: the father, the state, the adoptive parents etc. She points out how differently society acts and decides in cases of mother and father: Judges cannot force fathers to visit their children, yet a mother can be jailed if she interferes with the visitation. A mother has to live up to an impossible standard to be a "good mother", yet a father has to perform just above the already low expectations to be a "good father". If the mother works full-time, then she is subjected to questioning for abandoning her child's care, if she doesn't work, she is considered lazy and selfish etc.

Chesler thinks the Baby M case has everything to do with gender, how women and men are regarded in the society. She appalls at how a small contribution of sperm becomes equated to the ovum and the nine months to carry the baby. She wonders if the absence of an outcry from feminists are due to the fact that some of them might prefer delegating their reproductive tasks such as pregnancy to other "specialized" "surrogate" mothers to achieve gender neutrality (the wife of the Baby M's father was a pediatrician, she chose not to get pregnant due to her fear of passing the genes of a self-diagnosed multiple sclerosis with no evidence that she really had the disease). Or is it because the very proud figure of Baby M's mother, that resonate dependence, self-sacrifice, domesticity, she speculates, might have repulsed them?

Chesler writes that surrogate motherhood, which she calls "post-industrialized polygamy", became known after the supply of adoptable white babies dwindled due to abortions, wide spread birth control and breakdown of the stigma attached to having babies out of wedlock. In 1978, 131 parents who adopted privately were asked what "categories" of children they would not take under any circumstances. Older black child, 85%, normal black infant, 74%, older child of another ethnic group, 66%, white child with noncorrectable handicap, 61%, normal white child over six years old, 48%, white child with mental illness in background, 29%, infant of another ethnic group 29%, normal white child over 2 years old, 22%, white child with correctable handicap, 17% were the answers. She writes in fact there is a great need for adoptive parents for older, colored, and handicapped children --the least desirable ones for adoption--, and on the other hand, there is an increasing demand for healthy white babies. She also examines the trend to bring babies from overseas to be adopted by white parents. Some people, she argues, still wanted to have babies of their own decent, and surrogacy, artificial insemination of willing women in exchange for a fee, became available. She sees surrogacy also in terms of a class issue: the men who arrange for this procedure are rich, professional, respected. The women who are involved are submissive, poor, working class.

She asks, "what kind of women would give up her child in exchange for money?" From the surrogate mothers she interviewed she makes a profile of a woman: fertile, in her childbearing years, already mother of several children, full-time housewife, middle born, TV addict, either functionally illiterate, dyslexic or a very slow reader, traditional, religious, rebellious, self-destructive, sometimes victim of incest and of course poor enough to think they can give up their offspring in exchange for money. They are usually motivated more to help others even if it means sacrificing themselves along the way. She observes most of these women have a way of disassociating themselves from their feelings when they cause too much pain. (The infamous mother Diane Downs who killed one of her three children and wounded another was a surrogate mother too. In her court hearings the issue of disassociation was brought up many times.) Chesler was also amazed how most of the interviewed surrogate mothers were so concerned about how they looked, what the author thought of them, whether they were pretty (!). They were also very naive and trusting, afraid of questioning authority, in this case, the agency, the lawyers, the doctors. The ones that knew of the couple to adopt their baby prior to birth thought they would have an ongoing loving relationship with the couple, a wish that never materializes.

Chesler examines how the surrogacy arrangements slowly turned into a big business after starting up with a few women who got national attention by being in many Donahue shows. She calls Donahue the "father of surrogacy (!)" for his contributions. She asserts that there is an "industry" made up of lawyers, physicians and business people whose entire job is to make sure the sperm donor gets the baby and the contract mother does not. She looks at the costs involved for such a procedure and who endures it. She finds only the "industry" makes money and all others --the adoptive parents, the insurance company, and society at large (in case of a defective (!) birth), and the birth mother-- lose. She points out to the potential dangers of this "industry": cases with imperfect babies, absence of psychological screening of parents and surrogates (Diane Downs flunk the first psychological test and was passed by another and became a candidate), no careful investigation of adoptive families (a standard for mainstream adoptions). She gives anecdotes from the abuses the surrogate mothers suffered in the hands of medical establishment (drug overdoses, sexually transmitted diseases spread during insemination from the donor's sperm). She questions why the surrogate agencies establish support groups for their surrogate mothers and make sure it contains an older woman (she likens her to the convent mother or the madam of a brothel) who "keeps girls in line" if everything as rosy as they presented to be.

Chesler thinks people condemn a surrogate mother who changes her mind because she first signs a contract and tries to back out of it. She maintains "some people think that if she is allowed to change her mind, then no man can trust a woman". She questions what would have happened if a poor man decided to sell his kidney and backed out of it, if the judge would consider whose body was more "worthy" of it. She wonders if everything is for sale or if there are things that are sacred.

A surrogacy contract, she asserts, is written by people who think words can prevent a woman from forming a parent-child relationship with the baby growing inside her. She also points out, fee for the baby is unconstitutional, because sale of a human being is not allowed. If the mother is only offering her gestational services, than the fee she is getting for 9 months is nowhere near minimum wage. She also points out that it is illegal to sign adoption papers of an unborn child.

To establish that giving away children is indeed not healthy and very devastating for the surrogate or adoptive parents she refers to studies that are done on various countries including the U. S.. Virtually all birth mothers who parted from their children felt a great sense of loss which didn't disappear with the passage of time. Within three years of parting, 60% of the mothers suffered significant gynecological, medical and psychiatric problems, 85% of the mothers wished to see their children again and giving up babies was "nothing like they have imagined". Adopted children, especially the ones adopted through closed adoption (state seals the adoption documents forever), suffer a great deal too. According to the studies, adoptees have lower self-esteem, suffer more from learning and school difficulties, have higher incidence of teen pregnancies, drug addiction and negative encounters with the law than general population, and most recently 30% more frequently diagnosed with Attention Deficit and Hyperactivity Disorder (ADHD). She asks then why women are allowed to enter into agreements that are so harmful to themselves and possibly to their babies.

She goes on to examine the pressures that are in place to give up the babies for adoption. She refers to a 1982 study of 19,000 young women who were counseled by workers after childbirth. With the counselor who brought up adoption as an option, 36% of the mothers gave up their children, when counselors didn't bring up the subject only 2% of the mothers chose adoption. She particularly questions the soundness of current adoption policies, such as the little time allowed for mothers to change their minds after agreeing to adoption and close adoptions (mother and child never know each other). She calls the pressures exerted on a mother to give up her child who is still in the postpartum should account for duress (coercion, imprisonment, agreeing under threat), and therefore the mother should not be legally accountable for the contract she enters in (in this case agreeing to adoption). She points out in case a father finds out that his child was given up for adoption without his consent, he can sue for custody even after a year after he learns of it and win (so was the case in a famous 1994 trial), and a mother is given only 30 or 60 days to change her mind; this does not mean she will immediately get her child back, she will be only "entitled" to a hearing which she will most likely lose due to her economical situation.

At the end of the book, she includes the verdict of the New Jersey Supreme Court for the case of Baby M. On February 3, 1988, the court decided in favor of reestablishing Mary Beth Whitehead's parental rights and giving her "generous" and unsupervised visitation rights. The court had said, she writes, that a man could not call a woman a surrogate uterus and pay her to be one. However, she also observes, Bill Stern had not paid the mother the fee negotiated but gotten the baby anyway, and in the best interest of the child, the state had enforced the custodial loss of the mother. The court also encouraged the policy makers to look at establishing regulations on this issue since there was an interest on the part of parents and surrogates (according to their statistics 5.8% of the married couples were childless and infertile).

In my opinion, there is absolutely no question that surrogacy is immoral. However people may put it, it is still selling babies. I also agree with the author's assessment that it has a facet related to class. Financial means of a parent is a small percentage of the requirements for upbringing a child, and by no means, a guarantee for raising a resourceful, moral, contributing member of a society. Unfortunately it is also true that society puts enormous undue pressure on infertile couples, therefore, the race to have or purchase (!) a child continues on. In the bounty of many needy children waiting to be adopted by well-caring loving parents, this is truly heart-wrenching. I also strongly believe, every effort should be made to keep the mother and the child (indeed the family) together before resorting to part them.

I disagree with the author in terms of some of her convictions on patriarchy ("married women are contracted mothers to their husbands" etc.). She is also completely silent in terms of endorsing the very foundation to preserve and assure the togetherness of mother and child: family. She acknowledges the significance of the mother in the life of a child, but ignores the support and role of the father all together, in a way, continuously racing one against the other. However, her efforts for validating the sacred bond between mother and her child, and fighting against surrogacy, "baby-selling" are very commendable. After all, she is a part of the feminist movement, some of whose members are adamantly arguing that the only difference between man and woman are their reproductive organs, they are essentially equal in every possible way. She is a breakthrough. She, in a way, comes out of the closet and admits that women react and behave differently than men in the issues related to their offspring, and policies should reflect this difference.

I was also amazed and relieved to realize how most of the anguish would have been prevented in an Islamic society, where a young infant was surely to be left with his/her mother after the divorce, where open adoption was the only form allowed, and surrogacy would be of no need.