The Contract for ‘Baby M’

Mary Beth Whitehead concedes that she bound herself to the contract that committed her to surrogate motherhood without overmuch attention to its terms. She is a high-school dropout, and her carelessness has been paid for with pains and trials for herself and others. But what excuse can there be for governors, legislatures, and courts who have yet to look at contracts like the one she signed and wonder whether they might not be an offense to sound public policy?

The agreement between William Stern, natural father, and Mary Beth Whitehead, natural mother, was drafted by the Infertility Center of New York.

The rights and duties of the parties were allotted thus:

(A) To Mary Beth Whitehead, Natural Mother, or as Dr. Lee Salk more precisely put it, “surrogate uterus”:

Right: $10,000 to be deposited with the Infertility Center and await delivery in an escrow account.

Duty: To “assume all risks, including the risk of death.”

(B) To William Stern, Natural Father, or, as Mary Beth Whitehead puts it, “sperm donor”:

Rights: (1) All interest accruing in the escrow account.

(2) Cessation of the contract with no compensation to Mary Beth Whitehead if the child miscarries in the first five months.

(3) A test of the fetus somewhere between the sixteenth and twentieth week of pregnancy and, if “physiological abnormalities” are detected, abortion “upon demand of William Stern.”

Duties: (1) To pay $1,000 to Mary Beth Whitehead if her pregnancy is terminated after the fourth month by miscarriage or mandated abortion.

(2) To pay all medical expenses not covered by Mary Beth Whitehead’s insurance.

(3) To pay $7,500 to the Infertility Center for administrative work and other labors markedly less strenuous than those that earn the mother a fee just 25 percent higher.

(C) To the Infertility Center of New York, Matchmaker:

Rights: (1) The $7,500 up front and “nonrefundable.”

(2) Exemption from all guarantees that Mary Beth Whitehead will become pregnant or abide by her contract “to surrender custody.”

To examine such a contract line by callous line can be to arrive at a suspension of judgment on either Mary Beth Whitehead or William Stern. They were wrong, and they have suffered for it more than they ought. Their mistake was no more than a failure to anticipate the dictates of the human heart.

They lapsed into that error with a multitude of company. The psychological exhibits in the Whitehead–Stern quarrel have few passages more poignant than Richard Whitehead’s report on his surprise at how intensely he was drawn by the very first sight of a child that was his wife’s and in no way his own.

Richard Whitehead can never be a natural father again. Some years ago, he insured himself against that inconvenience with a vasectomy. And now he had only to look at a baby in his wife’s arms and feel the heart he had thought to be empty well up with how wrong he had been. He was one with all those who thought there were no problems that could not be solved with a quick divorce or a quick abortion and who know better now.

The only party to this contract to take account of the errancies of human sentiment was the Infertility Center of New York, and it insulated itself against them with a calculation so cold as to embarrass a social order that licenses as a service works like these.