Printed below is an excerpt from Surrogate Motherhood, Women’s Rights, & the Working Class by Cindy Jaquith. This newly digitized pamphlet is one of Pathfinder’s Books of the Month for August. The item quoted is from an article originally published in the Militant on April 24, 1987 titled, "How ‘surrogate mother’ contracts exploit children and women." The issue of surrogate motherhood was one of the leading news stories in the late 1980s. On Feb. 3, 1988, The New Jersey Supreme Court issued a decision on the case of "Baby M," reversing a lower court ruling and declaring surrogate mother contracts invalid and illegal in the state. Copyright © 1988 by Pathfinder Press, reprinted by permission. Subheadings are by the Militant.

BY CINDY JAQUITH  
The New Jersey court case of "Baby M" reveals a brazen disregard for children. The very term "Baby M" captures the callousness with which this infant has been treated, more as an anonymous object than as a human being deserving all the protection and nurture society can offer.

By taking the child away from her mother, Mary Beth Whitehead, and by upholding a "surrogate mother" contract, Judge Harvey Sorkow has struck a blow against rights for which the working class has fought for over a century and a half.

You would never know this from the debates that raged for weeks in the courtroom and the media. Instead, a myriad of prejudices against women and working people--some falsely presented as feminist ideas--were put forward, along with a generous dose of pseudoscience and mysticism.

If we peel away each layer of the arguments presented, it becomes clear that Sorkow’s March 31, 1987, ruling is reactionary and should be reversed. The child should be returned to Whitehead.

The case began when William and Elizabeth Stern went to a surrogacy agency to hire a woman to bear them a child.

Agency head Noel Keane arranged a contract between William Stern and Mary Beth Whitehead. Whitehead signed papers agreeing to be artificially inseminated with Stern’s sperm, carry a pregnancy to term, and then deliver her baby to the Sterns for $10,000 plus medical expenses.

But over the course of her pregnancy and the birth of the baby in March 1986, Whitehead decided she wanted to keep her child, whom she named Sara. She informed the Sterns and said they should keep their $10,000.

The Sterns filed suit and immediately got Judge Sorkow to order Whitehead to hand her daughter over to them. The Sterns then went to Whitehead’s house with five cops to seize five-week-old Sara.

Whitehead escaped with the child to Florida, but private detectives hired by the Sterns tracked them down. The detectives took Sara away and turned her over to the Sterns, who renamed her Melissa.

Judge Sorkow had no right to intervene and take Whitehead’s child away. This was not a custody case.

The moment the Sterns asked Sorkow for a court order, he should have refused, since a surrogacy contract has no validity. There is no way a court can make it binding within the framework of the rights guaranteed by the U.S. Constitution.

In previous centuries, many working people were forced to immigrate to this country as indentured servants. They got passage in return for contracting their labor, and often that of their children, as servants for a specific time period once they arrived. If they ceased working for the person who held the contract before the time was up, they went to jail.

This practice of semislavery was outlawed through struggles of workers and farmers in the first half of the nineteenth century. Along with indentured servitude, property qualifications for voting and debtors’ prisons were also abolished. So was the practice of shipping companies forcibly dragging seamen back on board if they failed to return to the ship at the end of port calls.

Today, workers cannot be forced to carry out the terms of a contract with an employer if they choose to terminate it for whatever reason. The Thirteenth Amendment to the U.S. Constitution--won by the victory of the Union in the Civil War--outlaws such contracts.  
 
Similar to involuntary servitude
Surrogate mother contracts are similar to involuntary servitude contracts in many respects, and just as exploitative, unjust, and invalid. The woman signs a contract guaranteeing she will carry a pregnancy for someone else for nine months. According to Judge Sorkow’s ruling, she is legally bound to this contract whether or not she changes her mind.

This is bad enough--but it’s even worse given the nature of the rights she gives up. With the contract she signed Whitehead relinquished control of her body for nine months. She had to agree to "assume all risks" of the pregnancy, "including the risk of death." She had to agree to "abortion on demand of William Stern" if the fetus showed signs of "physiological abnormalities," determined by the doctor being paid by Stern.

Whitehead herself could not choose to have an abortion without "breaking" the contract. She also had to agree not to smoke, drink liquor, or use medications not prescribed by the Stern-paid doctor during her pregnancy. While these conditions were imposed on Whitehead, the contract allowed Stern to terminate the agreement immediately if Whitehead had a miscarriage in the first five months. And he wouldn’t have to pay her a cent.

The other side of the contract that has no validity is that Whitehead agreed nine months beforehand to surrender a child she planned to bear. This is completely inhumane, both to the child and mother. Under adoption law, a woman has a period of time after her baby is born to decide if she wants to put the child up for adoption, even if she concluded at some point in her pregnancy that this is what she wanted to do....

Surrogate contracts are not an extension of the fight for women’s right to control their own bodies. That fight is to secure the right of the woman to decide when and if to have children, free from interference from the government, church officials, doctors, husbands, lovers, boyfriends, or any other individuals.

This struggle has embodied the fight for birth control; sex education; safe, legal abortion; and protection from forced sterilization. It is interconnected with the broader struggle by women to be treated equally with men in all aspects of society and not be disqualified because of pregnancy, children, or lack of children.

Surrogacy contracts run completely counter to this struggle, what it has already achieved, and the future it points to. Far from an expansion of women’s rights, these contracts deny rights previously conquered by women and working people as a whole.  
 
 
Front page (for this issue) | Home | Text-version home