The Case of Baby M

Bioethics for the People

Devan presents the fascinating and controversial case of 'Baby M' that captivated the world in the late 1980s. This landmark gestational surrogacy case raises complex questions about reproductive technology, parental rights, and who is a parent.

Transcript

0:03

Come to another episode of Bioethics for the People.I'm joined by my Co host Doctor Devin Stahl, who according to her student reviews should be cloned and teach all of the bioethics.And he's Tyler Gibb, who, according to his students, is best described as the goat of bioethics.

0:28

All right, Tyler.So this season is all about historic cases and bioethics.So I have a really good one for you this week.Great.I'm excited.Awesome.So before we get started, I just want to know what do you know about surrogacy, Surrogacy.

0:47

Well, surrogacy gets used two different ways, right, in, in kind of our world.One is about making decisions for somebody else, right, So decisional surrogacy and then the other one is about having babies, so gestational surrogacy.So I guess which one are we talking about today?

1:02

So today we'll be talking about the baby kind and you just use the phrase gestational surrogacy.So what is gestational surrogacy?I understand gestational surrogacy to be when somebody else is just stating a baby on your behalf, so somebody is impregnated and renting out the uterus, for lack of a better term.

1:29

Renting out, it's so bad borrowing.Are we borrowing?Yeah.So the idea that there's some sort of infertility situation or somebody wants to have a baby, a biologically related baby, genetically related baby in a way other than kind of the the natural way, So there's some sort of technology involved.

1:53

Other people, other parties are involved.That's what I know.OK.Yeah.So that's really close.I think I want to make one sort of clarifying distinction.So there are two kinds of.Baby surrogacy For lack of a better term, the 1st is traditional surrogacy.

2:12

And in traditional surrogacy we have a woman who's carrying a child that is genetically related to her.So she's not that child's intended mother, but she agrees to become pregnant and carry a child with the intention of allowing another person to parent that child.So most commonly that means like the the intended mother's husband is the biological father of the child.

2:34

That's not always the case.You could be I I, I suppose, inseminated with somebody else's sperm and then have two different intended parents.But the idea there is that the woman who is carrying the child is genetically connected to that child.OK, so it's her.Egg.

2:49

It's her egg, exactly.So think before IVF.This was the way you would do it.So there is some sort of artificial insemination, but it's not the IVF process where you're extracting egg and sperm, creating the embryo and then implanting That is traditionally what we call gestational surrogacy.

3:09

So gestational surrogacy is when egg and sperm are created as an embryo outside of the womb and then implanted in a woman.And in gestational surrogacy, the gestational surrogate is not genetically related then to that child.So the difference being traditional, being the woman who's carrying the child is genetically related.

3:29

Sometimes we say biologically related.I don't think that's quite right because you do become kind of biologically related just in the mirror caring of a child.That's a bigger conversation, but either genetically related or not.And you can imagine this creates like different kinds of scenarios when a woman a a a gestational surrogate might feel less kind of.

3:52

Genetically, biologically, physically related to that child because it's not her genetic material, whereas in traditional surrogacy, you are then kind of genetically related.And so the bond might feel a little bit different.I mean, that's kind of a psychological question, but there, there's that distinction.

4:08

So the case we're going to be talking about today occurred in the time before we were having IVF gestational surrogates.So it is a case of traditional.Yeah.Gotcha.OK.All right.So yeah, so I mean, kind of depending on how you count surrogacy, traditional would be the old potentially ancient, right, if like Biblically there's cases of of women who are not the intended mothers carrying children, if you count that as surrogacy.

4:37

I don't know that we actually should.I think there's more complicated stuff going on with like Hagar and Abraham, but.Very old practice.This is like my Bible stuff coming out right?So another thing I want to say up front.So this is a incredibly salacious case.

4:54

So I want to like forefront this case by saying this is not typical.In bioethics, we often focus on atypical cases because like they're the 1st and they create a lot of precedent.They're they're interesting because they were salacious, because they made headline news, because they became big court cases.

5:17

But I want to say upfront that most surrogacy cases are actually really happy cases.So there's these myths around surrogacy that I want to dispel before we begin.So the first myth is that intended parents don't feel as close to their children when they're born by surrogate.

5:37

And there's been studies on this that show that that's not true.In fact, some studies show that when you use a surrogate, you feel more connected to the child because that child is the the phrase is exceptionally wanted, so exceptionally.

5:52

Wanted, right?I think the idea is that if you're using a surrogate, it means you.You probably couldn't have a child in the natural way.So for maybe for infertility or maybe because you're a same sex couple for whatever reason, the, you know, the natural way is obviously the easier way in some cases.

6:11

So you know there's not an accidental surrogacy.This is a plan.Do you really want kids?This is the way you're going about it.So parents say that they do not feel less bonded to their children.The the activation energy necessary to create this child is way more significant.

6:32

Probably more expensive too.I mean obviously way more expensive, right?Right.And I do want to get into like, do we pay surrogates or not pay surrogates as a as an ethics question in a second.So parents definitely want these children.They're they're loved, they're bonded.The other is that.

6:50

That surrogates themselves become overly bonded.They don't want to give away.So this quote UN quote, give away the child that this is really emotionally difficult for surrogates.Studies show that that's not the case.Most surrogates are they don't feel as though the child is theirs, that they are, you know, caring the child altruistically for another couple, and they're happy to give the child to that couple, the intended parents.

7:14

So that is for the vast majority of surrogates that's the case.If there is kind of conflict, it often happens when the intended parents want to tell the surrogate like how she should conduct herself during pregnancy.So, which you can imagine.

7:30

And actually we had some of those recently, but go ahead.Interesting.Yeah, so it Have you ever seen the movie Baby Mama?Yes, the one with Tina Fey and Amy Poehler.Yeah, Yeah.So I think this is what's bringing that to mind is that movie.

7:47

It's a good movie.I.Think the most accurate representation of surrogacy I can think of.Yeah, right, Okay.And then the third myth is that children born by surrogacy.Psychologically suffer from not being sort of born in the natural way again, just doesn't tend to be true.

8:03

So there is some kind of identity conflict that happens to a lot of children, both like adopted children and children born by surrogate around the age of seven.When they kind of develop this sense of identity that shifts around the teenage years, around 14.

8:19

And so after that, it seems like the vast majority of these children.Are bonded to their parents.They're psychologically just the same as any other child.So we don't worry too much about this.Have you ever?We were actually.I was on a call yesterday talking with people about surrogacy cases they've seen in the hospital lately.

8:37

Do you ever get called an ethics call for cases of surrogacy?No, I haven't in a long time there.I think part of that is because the the hospitals that I consult for right now don't don't do a whole lot of IVF.And so I think that that if we were in a A center, an IVF center was associated with the hospitals that I consulted at much more likely.

9:01

Yeah.So pretty I I'm kind of out of my depth here.That's so interesting you say that it because the call it was on yesterday, it was Catholic ethicists talking about how often they're getting surrogacy consults at their Catholic hospitals, which of course don't do IVF.And so, and and their hypothesis about why they were getting so many of these was just that.

9:22

When it gets out there that you treat surrogate parents really well, then the word gets out and more people want to come to that facility.So it's an interesting hypothesis, but it's not an empirical thing.But just to say, you don't have to have an IVF clinic to get known as a place where this can occur and.

9:40

I'll, I'll get into later, like what has to happen in Texas for surrogacy to be, like, officially recognized.But a lot of that actually has to do with this case, like this case that I'm about to talk about sets the precedent for, like, how states are going to regulate surrogacy.So perfect.

9:55

Yeah.Get excited.Yeah.So this, this is our goal for the whole season is to to look at the the cases that establish the rules or establish the precedent.So, all right, let's see some surrogacy.OK.So this is this is the case description.

10:13

Let's say like if we were to get this case as ethicists New Jersey, February 6th, 1985, William and Betsy Stern enter into a contractual agreement with Mary Beth Whitehead.The Sterns agree to pay Mary Beth $10,000, which today is like $28,000, so not an insignificant sum to be their surrogate.

10:36

Mary Beth agreed to be inseminated with William's sperm to carry the pregnancy to term and to yield parental rights to the Stearns.So nine months later, Mary Beth gives birth to a baby girl and this baby girl is hereafter called baby M So if you've ever heard, this is the case of baby M and she relates that it's pretty sorry.

10:57

So this is a traditional surrogacy.The husband of the Stearns donated the sperm.It was inseminated into Mary Beth Whitehead, and she was the provider of the egg, right?So that got the gamete straight.Yep, Yep, so exactly right.

11:14

So when I start talking about contracts, I start reverting to law school and start diagramming interests and rights.So okay, I'm with you.There will be a lot of legalese.That I'm going to need your help with so so, however, so she relinquishes Baby M to the Stearns.

11:33

However, Mary Beth changes her mind mere days after giving birth, choosing to forgo the $10,000 and to keep the child.So the Stearns subsequently sued.This is this is you know, in short the case.OK, so we have two parties who willing willingly entered into a contract.

11:53

Terms were negotiated and agreed upon, but then unilaterally one of the parties rejected the the offered terms of the contract and tried to void the contract.Exactly.Easy.Easy, Easy in theory, very messy In practice, maybe this is going to get messier.

12:13

It's going to get very, very messy before we're done.I will say though, that I mean.The way you just laid it out as a lawyer is really interesting.I'm always fighting with my students.For some reason.My students are like, well, a contract is a contract.You must fulfill it.They are very contractually minded as if like you could contract anything and you would be bound by the law to uphold that because you signed a contract.

12:36

I think they all grew up watching Little Mermaid.And if you sign something, actually they're not that old that that would be like our generation.But it's so funny to think that you know, I try to say, well, aren't there things you shouldn't be able to contract?Like even if you signed away you know, your body maybe that wouldn't be upheld in court and and they just it it's like it blows their minds.

12:57

So just to say upfront, just because you have a contract and both parties sign it?Even if there's a lawyer involved, and in this case there was a lawyer involved, that doesn't mean that the court is going to uphold this contract.So there are things you cannot contract away.Yeah, well, actually, so just to be a little bit pedantic here, you can contract whatever you want, right?

13:17

But when it when it breaks down and it has to go into dispute resolution process, then the question is will the court enforce the contract's terms, right?Perfect.Yes, that's right.That's what That's what I meant.Yeah.So you can write down anything you want and both parties can sign it.

13:34

And that's, you know, a contract.But that doesn't mean the court will have pulled it.And so that, you know, maybe that'll happen, maybe not.OK, so I want to give you a little bit more background on this case.So William and Betsy Stern, they get married 1974 after meeting as graduate students at the University of Michigan, Michigan.

13:52

Go blue.And quote UN quote, I'm going to, I'm going to have a lot of quotes in this.These are from newspaper reports at the time.So this is not like me saying these things.I'm going to, like let you know because some of them I would never say quote due to financial considerations, the Stearns agreed to wait to start a family until after Betsy received her medical degree and completed her residency.

14:16

So Betsy becomes a pediatrician.You know they want to.This makes total sense to anyone who's gone through Med school.She thinks maybe I should wait until after residency to start having children because it's a really tough time.We both know women who have had multiple children during Med school and residency.It's possible this is the 70s.

14:33

My guess is like there are not a ton of women in Med school.She wants to wait, you know, to start her career before she wants to have children.So.But after she completes her residency, Betsy's diagnosed with multiple sclerosis.She fears that her diagnosis is going to make it hard for her to become pregnant or that pregnancy would be a serious health risk.

14:54

Asterisks, that's not true.We know now they wouldn't have known this in the 70s, but women with multiple sclerosis do really well during pregnancy.I only know that because.I have multiple sclerosis and I know this from all my doctors and my own pregnancy.But.And you also have babies.

15:10

And I have babies, and I did really well during pregnancy.You actually don't you go into remission typically in pregnancy for whatever reason.But.But she's worried.She's worried that pregnancy might precipitate Ms. symptoms, things like blindness, paraplegia, other forms of debilitation.So what you typically get when you have Ms. relapse, she's worried that pregnancy will make it really hard on her body.

15:33

So they they really want to have children though, and William is, and this is really interesting, the only child of Jewish parents that survived the Holocaust.So for him having a genetically related child is really important.So that that makes sense to me.

15:52

So they decide on surrogacy.They, as you would have in the 70s, put out an advertisement in the newspaper.For a surrogate, this always makes me chuckle, and it my students are always just Their minds are blown like you did what in the newspaper.

16:10

This was not uncovered.This, this is what you would have done.You put an ad in the newspaper for a surrogate.So Mary Beth Stern responds to the advertisement and she enters into a surrogacy contract with the Sterns.So Mary Beth is, in so many ways, maligned.

16:31

In papers and in news reporting on this, so just to say as a forewarning, she is often described as a quote woman of no great means.She's a high school dropout that has six.She is the 6th of eight children, so she comes from a poor family.

16:50

She gets married in 1973 at the age of 16, so she drops out of school.She gets married to Richard Whitehead, who is 8 years older than her.And they become pregnant with their first child, Ryan.The two years later, at 18, she has a second child named Tuesday.

17:09

And after that, they decide they don't want any more children.And Richard has a vasectomy.They have a lot of Mary Beth and Richard have a lot of financial struggles.Richard struggles with alcoholism.They're separated for a long time.Mary Beth goes on.

17:24

And I can't believe this is the phrase, but it really is a spell on welfare.So she receives welfare for a while to to care for her children and herself.But by the time she is entering into the surrogacy contract, she's 28 and she and Richard have been married for 12 years and it seems like things are good with their relationship.

17:46

OK, so this is kind of the background of these couples.And over the next six months, William and Mary Beth commute to New York City for multiple insemination.So she's she.This doesn't often work the first time she undergoes the insemination.Many times she finally gets pregnant after 11 inseminations.

18:07

And yeah, so this, this is a long process.Yeah, I mean as.As far as I know, and I don't know what the percentages would have been like in the 70s, I think there's like a 10% chance of it working like intrauterine insemination.

18:23

So it's not, it's not, it doesn't have the success rates of IVF.It's a lot more difficult of a process to work.So on March 27th, 1986, Mary Beth gives birth to a baby girl and the baby birth certificate indicates that her name is Sarah Elizabeth Whitehead.

18:42

The name that Mary Beth chose for her.So this would have been the kind of.So there's not, I don't know that there is like a common practice at the time, 'cause I think surrogacy isn't, is still fairly new in the 70s as far like the way that they're doing it with intrauterine insemination.

18:59

So yeah, who's the?She's the mother on the birth certificate and she gets to name the child The Stearns.Take the baby from the hospital, Rename her Melissa.So Baby M, We now know her name and on March 30th, so three days later, which is the time you would typically leave the hospital after birth, Mary Beth relinquishes the baby and the Stearns take her home.

19:25

So at that point, the Stearns think the contract is fulfilled where she cashed her check.We've got the baby.Everyone's healthy.Everyone's good.We're good.OK.And if it had ended there, this would have been like an ideal kind of surrogacy relationship.But alas.

19:41

Mere days, mere days after the baby's born, Mary Beth Whitehead appears at the Stern's door in anguish, begging to have the child, if only for a short time, and she would return her afterwards.So she's she's regretting her decision.She's really missing her baby.

19:57

Mary Beth is deeply disturbed and struck with unbearable sadness.These are her words.She can't eat or sleep or concentrate on anything else but her need for her baby.So the Sterns acquiesce.They turn the child over to Mary Beth because you know, according to them, she claims she will, you know, die by suicide if they don't help her.

20:21

They don't let her spend time with the baby.So this is, you know, this.The worst case scenario for the this is.Like on their front doorstep?Yeah, he's like begging for the child back.Yeah.I don't think that I would give my child or anybody's child to somebody in that state.But yeah, yeah.

20:40

So for the next four months, the Stearns try to get their baby back and Mary Beth will not give them the baby back.So on April 12th, Mary Beth tells the Stearns she's not going to give the child back.

20:57

And the Stearns then sue to have their surrogacy contract enforced and eventually receive a court order for Mary Beth to return the baby to them.So they actually have to go to court to try to get the baby back.So the police appear at the Whitehead's home.

21:12

Mary Beth passes a the child through the window to her husband Richard and they flee to Florida.So this is all over the news.Of course, the Whiteheads hide in Florida for 87 days before the authorities find them at her mother's house, which, I don't know, would have seems like it would have been a place to look pretty quickly.

21:39

Yeah, I feel.Like we could have got to that that location quicker than 87 days.But yeah, also side note, Florida, Why?Why is it always Florida?It's always Florida, right?Poor Florida.They get a bad Rep So the court then orders Mary Beth to return the child to the Stearns pending litigation.

22:04

So they issue this ex parte awarding custody to the Stearns until it can get worked out through the courts.Is this sort of sound legally appropriate to you?Yeah, yeah.Yeah.So ex parte means that both parties weren't present in court.And so, I mean, if one of them is on the lamb with the child in dispute, that makes sense.

22:22

So, yeah, so and until that time, Mary Beth can have some limited visitation of the baby as part of that agreement, not agreement, but issued by the court.So the Stearns then seek permanent custody of the child and termination of all of Mary Beth's parental rights, which of course would have been what they agreed to in the contract initially.

22:44

They also seek permission for Betsy, so William's wife, to adopt the child.And devastated and desperate, Mary Beth turns to the media right so she no longer has custody of her child.

23:00

She feels this was incredibly unjust.She starts doing multiple media interviews.In the meantime, we have a trial.It proceeds for 32 days over two months and the majority of that is the question of what is in the baby's best interest.

23:22

So it's not about the contract, it's not about who has the rights over this child.The court is really considering what is best for Baby M and that seems appropriate, right?Right.Yeah, Yeah.I think that that's appropriate particularly because the contract it I think the contract might be a red herring here Devin I think because once the contract was fulfilled and and both parties.

23:51

Kind of went their separate ways for that couple of days period after the baby was given over to the Stearns.The contract is kind of fulfilled now this other this woman who they have this prior contractual relationship with shows up on their doorstep and they give their baby to them and that creates this dispute about custody and stuff like that.

24:10

So, so maybe the contract isn't as important to us.We we initially thought maybe not.Yeah.And and you know remember that this that Mary Beth is genetically, biologically related to Baby M So I think it just let's talk later about whether that makes it more complicated or not, but.

24:28

And she's on the birth certificate.That's not insignificant, right.OK, so during the trial, this trial is like just perfect for the media because it is full of drama and emotion and suspense.And at one point during the trial, they play a 45 minute tape, a phone call between Mary Beth and William Stern.

24:49

And this is splashed all over the news.And if Mary Beth had got garnered a lot of sympathy from people by going on her media blitz, this really hurt her case.So I want to play just a little bit of that tape for you now.

25:05

Inside the courtroom, testimony included a dramatic tape recording of Mary Beth Whitehead calling Bill Stern from Florida.I gave.Her wife.I could take her wife away if that's what you want.No, Meredith, No, Meredith.Wait, wait, wait, what I'm going to do, Bill, please.Mary Beth.Lawyers for the Sterns introduced the tape, saying they show Missus Whitehead is too unstable to win custody.

25:26

Her lawyers said they only show how much she cares.So oof.So what are your reactions to that?I feel like I've heard that phrase before, but never about a child.

25:44

Usually about me.As a teenager, that's first of all 1986.Good on them for recording everything, right?There probably wasn't a small technological endeavor to for them to.

26:01

Get that on tape.But yeah, that's not APR guy, but seems not helpful, not helpful.So, so the the lawyers for the Stearns, you know, say that this shows that Mary Beth is like not stable enough to be a good mother.

26:21

Right.So if the case is really about the baby's best interest, this doesn't seem to be working in her favor.Her lawyers say this just shows how desperate and and loving she is toward her own child.Right.So, you know, Can you imagine, Tyler, I mean, I can't really, but someone taking your children from you and how you would possibly react, Right.

26:43

So.Like I was just actually talking to one of my kids.We just finished a a cross country road trip and I think it was on the.We had a conversation.One of the kids was listening to a podcast about somebody who goes missing.And I we were just commenting like that is like the worst case scenario for a parent is that your child is taken from you.

27:04

You don't know what if they're safe, if they're alive.Like, man, it's yeah, that would be the worst.But I think the only thing worse than absolute uncertainty was would be like.This person took my child and I can't get them back right.I I I don't think that I would handle that well.

27:21

That would be a problem.I mean, I I don't think that I would say those things that Mary Beth said, but I don't really know.I mean I, you know, there's something about love for your child that makes you not right.You know, in the head you can, I can imagine the desperation that would ensue.

27:37

So, you know, and at one point so, so William Stern is telling the media that, you know, Mary Beth is suicidal.And in retaliation, Mary Beth goes on the news and says that William Stern is sexually abusing Baby M So it gets really nasty.

27:54

She later retracts that and says it was sort of retaliation for him saying she was suicidal, which she claims she wasn't.She was just desperate to get her child back.So I've seen a lot of now reporting on this, what you just watched and some other sort of media clips and newspaper articles from the time in the 80s.

28:13

It is like super interesting.I I think that they they got away with saying stuff that I I think would be fairly inappropriate today or hopefully I think we wouldn't say about especially women anymore.But this is often cast in the media, both at that Mary Beth is hysterical and you know this, you know, this kind of the classic hysterical woman.

28:38

But also they, some are positioning it as a kind of rich and poor problem.So they often describe Mary Beth as high school dropout, married to a garbage collector, Right.So there's a certain sort of stress on their economic situation.

28:54

Whereas William Stern is a biochemist and his wife, Betsy is a Pediatrics professor.You can see just kind of how they're setting up the class dynamics there and they often forefront them.So she is, Mary Beth is this poor hysterical woman the the Stearns of these upstanding citizens that just want their child back.

29:18

So she doesn't.Mary Beth does not come off well in most of the reporting and especially because everyone plays what you just heard that that phone call over and over again.So I want to I have one more clip to show you just to kind of get Mary Beth's side of things and this, this comes a few years after the court case.

29:35

But I want to hear you hear the kind of shift in tone from her after the fact.The battles.That we went through.I think that we all made mistakes and I think that, you know, everybody was kind of functioning on emotions.Kind of put everything aside and we'll truly love this little girl, and so do I.

29:54

So we're all going to do whatever it takes to make this thing go happy.Your children suffered a great deal during this.You write about this in the book Tuesday.Your little girl especially seemed to go through so much pain.How's she doing?Well, she was really the one who.I mean, besides my own maternal feelings, I felt a very strong obligation to the other two.

30:12

You know, so many people across the country were looking at that.It was just one child involved.There was two others, and they were just as much apart.This entire.Yes.In fact, when I was nine months pregnant, Tuesday came to me and she was commenting on how heavy I was.

30:29

And I said to her, well, someday you're going to be the same way.And she went, oh, no, I'm not.I'm going to hire somebody like, you know.So at that point I had realized that I had made a terrible mistake, but Dale couldn't verbalize it because I didn't know what to do.And then when she came to the hospital and saw me and said, please don't sell my sister, I really felt a very strong obligation to everybody.

30:52

And then I did try to let her go.And I and I lived one night without her, and it was the most miserable night of my life.I never want to experience it again.And when I went back together, the emptiness that I was feeling for that night before had totally disappeared.

31:07

And you know, we were all together.But, you know, two window maneuvers and, you know, advice of attorneys, a lot of things happened that just never show up.Wow.Yeah.That's a very different perspective or portrayal of of her.

31:25

Yeah.Yeah, yeah.I mean, I'll take her word for it that if my child said something to me like that, that would be pretty gutting.Yeah, yeah, goodness.And and for that, I don't remember how old that child was at the time, but.You know, from the sometimes the most profound things come out of the a child's mouth, right?

31:44

And and kind of is able to articulate or put words to feelings that adults can't even articulate.So, yeah, yeah.So it just gives you sort of another like merry best perspective, which is a, you know, a little different.So, but we're still in the midst of the trial.

32:01

So ultimately the court affirmed the validity of the surrogacy contract, but ruled that the, quote, specific performance of the contract would not be granted unless the remedy was in the best interests of the child.So again, I mean the the, the contract matters, but it only matters insofar as this is what's best for the child.

32:19

So the court concludes that William Stern's rights under the Circusy contract were constitutionally protected, and they terminated Mary Beth's parental rights, granted custody to William Stern, and quote, entered an order allowing the adoption of the child by Betsy Stern.And Mary Beth was then granted continued visitation, but visitation that was even more limited than it was during the trial.

32:42

So again, this kind of seems like the what maybe some would think is the right sort of ending to the case.I don't know.What do you think?Yeah.So it's interesting that the the court specifically called out like put put parameters on the the remedy or the fix.

33:04

That the the litigation was going to result in saying that regardless of everybody else's interests the child's interests are take going to take priority in the way that we decide this.I think that's that that sounds right to me particularly because the child is the I don't know victim is the right word right.

33:22

But it's definitely the person who is going to be most permanently impacted by this in a way that they they didn't ask for this.I mean, this is something that is completely outside of their control and.The the people who are supposed to love and protect them are are engaged in this prolonged really kind of ugly battle The I guess one of their one other thought about the the the legal process of it, it it all took place in in New York or New Jersey.

33:52

One of the two New Jersey.New Jersey, yeah, there there's some states, some jurisdictions where contracts are enforced, you know, each.The state kind of has its own personality a little bit from a legal perspective, the way that the laws are interpreted or applied.

34:11

So for example, Texas is very different than California is different than New York, but New Jersey I think is generally seen to be a very pro business type of environment, so contractual contracts.Have have meaning and they're enforced unless they shouldn't be.

34:28

So interesting.It was in New Jersey case.Yeah, that it was in New Jersey.Well, so this is not the end of the case.Oh, OK.Yeah.And actually well and actually all of the subsequent then surrogacy rules around contracts come from this case.

34:44

So we kind of we have this like initial verdict which seems perhaps appropriate, perhaps not depending on sort of how you fall.She, Mary Beth appeals the case to the New Jersey Supreme Court and the New Jersey Supreme Court reverses the court trials decision on appeal unanimously 7 to 0.

35:08

So they overturned the lower court's appeal, concluding that the Stern Whitehead surrogacy contract was not enforceable and violated long standing New Jersey policy on child custody which presumes equal rights of both parents and favors the raising of children by their natural parents.

35:28

Interesting.Yeah.By their it's an Interstate like natural they everyone uses natural at the time, which is an interesting phrase.But so they say Nope, there's we cannot enforce surrogacy contracts this this was an inappropriate decision.They totally reversed the decision.

35:45

Interesting.OK, Yeah.So can I read you?Go ahead.Yeah, no, that I was just gonna say that's really that's interesting for New Jersey.Yeah.But also like at the time, they were really trying to figure out what to do with these contracts.

36:01

And I think part of the concern was like, this feels almost like.A contract for some sort of indentured servitude or some sort of like slavery type of idea which, you know, you know in in previous episodes we've talked about, you know, if slave right holders are are part of your justification for your for your public policy, maybe we should rethink it.

36:25

Yeah.Well, and it's so it's interesting to me that you went, Oh, well, New Jersey probably likes contracts because they're probusiness as if this kind of contract was like other kinds of contracts, whereas the New Jersey Supreme Court says actually it's more like parental custody of children, right.

36:41

So it's not like other kinds of contracts.In fact, it shouldn't be a thing you can contract.So really interesting sort of like how do they understand the contract?It's like where are they going to place it in terms of the law?And and they say, no, it's not like business contracts.It's more like custody of children disputes.

36:59

So I want to read you this a lot of quotes, but I just think it's really interesting and I want to get your take on what the court decides.So here's a here's the first quote from the from the court decision.The surrogacy contract guarantees permanent separation of a child from one of its natural parents.Our policy however, has long been that to the extent possible, children should remain with and be brought up by both of their natural parents.

37:22

That was the first stated purpose of the previous Adoption Act.While not so stated in the present adoption law, the purpose remains part of the public policy of this state.This is not simply some theoretical ideal that in practice has no meaning.The impact of failure to follow that policy is nowhere better shown than the results of surrogacy.

37:40

Contract a child, instead of starting off its life with as much peace and security as possible, finds itself immediately in a tug of war.That's interesting.It's interesting They're using the current litigation as justification for their answer, right?

37:57

That's interesting to me.Yeah.OK, so that goes on.Worst of all, however, is that the contracts.The contracts total disregard for the best interests of the child.There is not the slightest suggestion that any inquiry will be made at any time to determine the fitness of the Stearns as custodial parents of Missus Stern as an adoptive parent, or their superiority to Missus Whitehead, or the effect on the child of not living with her natural mother.

38:24

OK, so they're taking this.Put a put a lot of weight on natural mother.Yeah very interesting and and what natural means.Again I just it's just a such an interesting phrase as if like children want to be with the.I mean what does this say about adoption It's really interesting.

38:42

OK, so the sale of a child, or at the very least the sale of a mother's right to her child, the only mitigating factor being that one of the purchasers is the father.Almost every evil that prompted the prohibition of payment of money in connection with adoptions exists here.

39:02

Wow these whoever wrote this opinion was fired up.Very fired up, yeah.I mean, they're talking about the sale of a child because remember, she was paid $10,000 to do this, to be the surrogate.So the court thinks that this does feel an awful lot like the sale of a child.

39:21

Or the sale, they say.Or at least, at the very least, the sale of a mother's right to her child.Right, so they go on 1st.And perhaps most important, all parties concede that it is unlikely that surrogacy will survive without money, despite the alleged selfish motivation of surrogate mothers there.

39:39

If there is no payment, there will be no surrogates, or very few.So they're saying, you know, that the money really muddies things up here, so it's all about the money.Second, the use of money and adoptions does not produce the problem.Conception occurs and usually the birth itself before illicit funds are offered 3rd with the law prohibiting the use of money in connection with adoptions, the built in financial pressure of the unwanted pregnancy and the consequent support obligation do not leave the mother to the highest paying I'll suited adoptive parents.

40:10

She is just as well off surrendering the child to an approved agency.In surrogacy, the highest bidders will presumably become the adoptive parents, regardless of suitability, as long as payment of money is permitted.Wow, they did not like the transfer of monetary, did they?

40:29

They did not, yeah.So they're really worried about this payment issue.And then they're saying then rich, unsuitable parents will be the ones that get to adopt children from surrogacy relationships.But rich, unfit parents can just have children too though, right?

40:46

I I don't know that it's solving the problem.Right.Well, and this is always I I mean, when I talk about this with my students, it's always.You know, surrogacy is this weird in between of, you know, having children, the quote UN quote natural way and adoption.

41:01

So when you adopt A child, there's all sorts of, you know, ways in which you have to measure up as potential parents.So somebody comes to your house, they make sure that you have the, you know, finances to take care of a child, that you don't have some sort of pass that would make you like less suitable to be a parent.

41:20

So there's a lot of investigation of you to make sure you're going to be a good parent.You just have children that you know, natural way, and nobody is judging whether you're a suitable parent ahead of time.So it's only you might get your children taken away if you abuse them badly.

41:36

But there's no, you know, setting you up to be A to determine whether you'll be a good parent.Surrogacy is somewhere in between.Perhaps, you know, should we treat it more like conception, the natural way?Should we treat it more like adoption?It sounds to me like this.The court is saying we should treat it more like adoption.

41:54

Yeah, it's an it's an interesting exercise and kind of we went through this as as we were talking through it out loud that one of the primary ways in which clinical ethics cases get analyzed is through comparison, right.So we always say, OK, is the here are the facts of this case, is this case more like this one or is it more like that one.

42:13

And if it's more like this one, then we'll maybe we'll approach it this way.If it's more like that one, we'll approach it a different way.But the first question is what is it more like and my first instinct was this seems more like a contract and the court obviously did not take take that approach to it.

42:31

So it's that's interesting from like how do you work through these cases type of process.Yeah.What's the best analogy?This is always what we're doing in clinical ethics.It's like, if this is a novel case, the first thing we do is find the best analogy to it we can.Yep.So they think the best analogy is adoption.

42:46

So the court sees surrogacy contracts that involve money as they quote, illegal, perhaps criminal and potentially degrading to women.So take it.They take a really hard stance.They will never enforce surrogacy contracts moving forward.

43:02

So they actually So the court decides to give William Stern custody of Baby M.They do not.They void Betsy Stern's adoption of Baby M So Betsy is not allowed to adopt Baby M and Mary Beth is allowed visitation of Baby M, much greater visitation than she had in the previous court ruling.

43:24

So.And and there's lots of interviews with Mary Beth who says, you know, it's sort of like we got divorced.It makes sense that the child lives with one person more permanently, but that the other person should have rights to see them.So it's more like a custodial arrangement?And she's happy with that arrangement.

43:41

So just a, that sets a really interesting precedent.Mary Beth goes on, she gets lots of interviews, she writes a book about the whole process.They make it made for TV movie, which is hilarious.Did you watch it?I watched a little bit of it.

43:57

Baby M is like 8.So.So in the case, Baby M is like just a few months old.But it's much more dramatic if she's older and she can say, no, don't take me away from my parents.Yeah, it's it's, it's really funny. made for TV movies.They just don't quite happen anymore like they used to in the 80s.

44:16

Yeah, gosh, that was.That was the heyday of made for TV movies.Yeah.So I want to send you so this, so actually no state at that time had laws about surrogacy.So this kicks off just an avalanche of laws because the the legal system's trying to catch up to medical progress.

44:35

So I'm going to send you a website that just details every state's current laws about surrogacy.I just want you to, like, take a look at it and see what you think.Surrogacy by state?OK, I've got the list up.

44:56

So which ones?What do What do you want to focus on?Well, just so maybe look at DC All right.Washington, DC OK, so it says.

45:13

As of April 2017, the District of Columbia now fully permits surrogacy agreements.Court, parent court parentage orders cannot be issued until 48 hours after birth.So that means that the like the formal transfer of parental rights can't occur until 48 hours postpartum, right?

45:36

Right.So why is there a waiting period?Yeah, it's a good question.So in some states I've learned like Texas, you can actually get a court order to say that upon birth you can immediately transfer rights and you can actually put the intended parents names on the birth certificate.

45:54

So if you arrange that ahead of time, looks like in DC that's not the case you would put.The woman who gives birth as the mother and then you can go back and change it.That's that's pretty common too.So they make you wait a lot.Who know why 48 hours.DC is apparently and it doesn't say this on this website but it's one of the only places.

46:12

There's just a few places you can pay for surrogacy.So after the Baby M case, almost all states, when they wrote their initial laws said no commercial surrogacy, meaning no payment you can pay for like medical care for the surrogate.

46:30

Those sorts of, like, things that are directly involved in the pregnancy itself, but you can't pay her a lump sum of money for being your surrogate.So yeah, yeah, that seems like that's similar to the, like, the situation with organ donation, right?You can't directly pay for an Oregon, but you can pay for all of the attendant costs of transplantation.

46:49

Yeah, so.So in a few states, very open about surrogacy, you can pay for surrogacy.New York is another one that just passed the law that says now you can, you can.Pay for a surrogate.And then there's all these states, sort of as you kind of Scroll down in between where it's allowable, but with a lot of restrictions.

47:07

So sometimes restrictions are things like age.So you have to be a certain age, like obviously we think 18, but even older, sometimes 2526.Some states require that you are already a parent, that you've already given birth before you're allowed to be a surrogate.

47:22

Really interesting.Interesting.It would be fascinating to know that the justification, the rationale behind that.I mean, because if you already have had a baby, then you're giving up.The second one isn't as big of a deal.

47:38

Which, of course, emotionally traumatic.Or it wasn't for Mary Beth, right?She already had children.Or.Or maybe it's just more something like, you know what it's like to give birth like.I don't know.It's kind of hard to imagine what it's like to give birth until you do.It would be my experience.

47:55

But yeah, I mean, how they justify that is I have no idea.It's very strange.Oh, that's interesting that it's almost like an like the quality of informedness and the informed consent going into it.Yeah, in in Texas.So we're one of these kind of middling states where we definitely allow surrogacy, but it all has to be contracted through the court, not even through a lawyer, through a court ahead of time.

48:20

So you actually have to go to court with both parties and establish that you have to write the kind of contracts in court.There are states that do not allow surrogacy at all or the the contracts will not be enforced at all.

48:35

So you enter into a surrogacy agreement at your own risk because the woman who gives birth to the child.Has as much rights to that child as anybody else.So even with gestational surrogacy, so even if that woman isn't genetically related, the surrogacy contract wouldn't be enforced.So really interesting differences and we'll post this website.

48:54

Michigan is one of these.Michigan, I think, was the first state to write a surrogacy law after the BBM case, after New Jersey, so as far as I know.No paid surrogacy.

49:09

All surrogacy agreements are prohibited and unenforceable.So and you could actually go to jail for paying a surrogate to be your surrogate.Goodness, I obviously I don't get these cases very.Much.

49:24

Maybe that's why you don't get the cases very often.Yeah, I mean, that explains it better than whatever hypothesis I pitched.Yeah, interesting.And so, so the other ones were written after Baby M, but that have been since modified to allow with certain regulations or restrictions and certain circumstances.

49:45

But Michigan is.So Michigan, as far as I know, has not updated anything recently.Yeah.So it's very restrictive, probably the most restrictive, Yeah.So Michigan and Louisiana are like the most restrictive.

50:00

Interesting.Yeah, you do.Yeah, so OK, Tyler.This is the case.Was the verdict fair?I mean, I don't.I had, I had a professor once who said that litigation is for losers because if you end up in litigation, everyone already is lost.

50:25

And so this is a really ugly case that unfortunately has a child at the very center of it.So I don't know that anybody wins.I think that the court although I think it's an interesting they took a really interesting stance that I think in retrospect maybe didn't pan out the way obviously I mean a lot of the laws has have since kind of ameliorated some of that but the the courts I it would be really interesting to look at the way in which the case that the Supreme Court in New Jersey was argued and like how it was framed right because they took such a a different interpretation or or approach to the the factual questions that were presented to them.

51:15

But again that that's that's a little bit too much inside baseball for lawyers and people who are interested in this type of stuff.But I the the focus on this case being more like adoption rather than this being more like a a business contract was is really interesting to me.

51:34

Yeah.And so, and another interesting point is that the court is really concerned about the exploitation of poor women, especially with paid surrogacy.Do you think that that's justified?I I do.I I think any time that money gets involved with something that should be altruistic, I guess.

51:52

I don't know.I mean why should it be altruistic?I guess.But I I in that way it is like the like the you know Mary Beth Whitehead's child allegedly said is you know if why would I have my own baby when I can just outsource the the pain and expense and mess and and long term ramifications to somebody who I can induce to do these things on my behalf for a little bit of money.

52:19

We this this comes up a lot with international commercial surrogacy, right.The idea that Rich so so wealthy individuals in the West are taking advantage of the global South and and renting out uteruses and and outsourcing the pain and expense and hassle of actually bearing children but then still having the benefit of them being biologically related to them.

52:46

So I think it's a real concern.I don't know that data has actually played this out or there's enough data to to make any type of analysis about whether it actually is doing that thing that we were concerned about.But I think gut reaction is this is this, this, this is.One of the big problems with this is that money is going to be used in a way that exploits people who are already disadvantaged.

53:09

Definitely, yeah.And my final question to you is, do you think that the case would have turned out differently if it had been years later after IVF was more established?And Mary Beth had been a gestational carrier and not a traditional surrogate, I think.

53:27

So I think that the court like like we said it kind of as we were going through this court was really putting a lot of hanging, a lot of their decision on this idea of natural motherhood being sacred that they have to protect and and the public policy of the state has to make sure it's not unduly interfered with.

53:46

So I think that that aspect of the the the gamete involved being Mary Beth Whiteheads.If that fact were switched, I think that I don't know, it's a different outcome, but definitely I think the framing of it would be a lot different.

54:05

Maybe it would have reverted just to merely a contractual arrangement, but I don't know.I think so, yeah.What do?You think, well, I do, I do because there's another famous Circusy case, so we won't get into it.But in 1993, it's called Calvert V Johnson.

54:22

And in that case, the woman was a gestational carrier and this is in California.And the and in the same sort of circumstances, she didn't want to give up the child after birth.And the court ruled that, and this is actually pretty gross, but that the surrogate was a mere host to the child.

54:39

More like a foster parent than a mother.Interesting.Yeah, So and again, but it again brings up the analogy of adoption, right.So, but the difference being, she's now the foster parent who's refusing to give the child back.

54:57

To the parents, the natural parents.So she's just this kind of the the fact that call her host is really gross, but that that is the the ruling in that case is she's the analogy as a foster parent and not, you know, not a different kind of parent.Yeah.And foster parents have significantly less rights than, you know, an adopted parent or a natural parent, whatever that means.

55:22

That's really interesting.Of course, that's what, maybe 8-10 years later.So IVF is more common.Different jurisdiction, but.Right, right.So again, states have wildly different laws about surrogacy.This is like the wonder of the US is whenever there's a, you know what, what does the law say about blah, blah, blah?

55:40

The answer is always, Well, it depends on what state you live in.That's right.Yeah.Yeah.All right.So was this a good case Tyler?Yes, excellent case, particularly because it's the watershed case for all of these other ones that deal with surrogacy and prompted, I love these cases that generate state laws because it's really uncommon for US state legislature to anticipate something like this and already have a law in the books.

56:05

We had a complicated case not too long ago that the like the formal recommendations from the, the professional organization was have policies in place before this circumstance happens and you're like, OK, great, that's super helpful.

56:21

You know, that's like the when's the best time to plant a tree?Like, 20 years ago?Right.Yeah.So then the law is always chasing kind of the clinical cases, although I might say sometimes these things are predictable.Like, really, no one could have predicted the idea that a contracted surrogate wouldn't.

56:40

Want to keep the child and it would create chaos.I mean, I don't know, maybe they weren't thinking that at the time and it was just so new, right?So IVF hadn't even been invented yet?It would be two years later before IVF was successfully carried out, but it seems somewhat predictable.

56:55

I don't know.Yeah, but it keeps happening, right?So there's all these great surrogacy cases that subsequently follow is a is a father responsible if they contract a surrogate and in the middle of the the pregnancy they get divorced and the father never really wanted to be a father and he doesn't want the child.

57:13

He doesn't want to have to pay child support.This is another case that happens a few years later with Bazonga V Bazonga.And so they, we just keep rolling out the cases and then the law has to then respond.Yeah.And all the permutations of what it means to be a parent and whether you're a genetic parent or a gestational parent or a Yeah, it's almost like a it's like a law school exam where you have to diagram all of the different parents and parental rights and.

57:43

And it's and with IVF and with the mitochondrial stuff that's happening too.It gets there can be, you know, you could contract a surrogate who carries an embryo that's not genetically related to anybody involved, right.It could be donor, donor, embryo, third party surrogate.

58:00

So no.And then you know, presumably the genetically related.You know Gammy providers, right?You don't want to call them parents, but, you know, you can have situations in which there's potentially lots of people who want to claim rights over a child.Yeah.Particularly if they're known donors, right.So if they're like, you know, friends and acquaintances or you know of somebody who knows of who, who it is, then it gets.

58:23

And sometimes anonymity will protect that, but sometimes not.I've seen a couple of really interesting cases where there's a genetically linked illness or or disease and they're trying to go back and trace like who it like which of the various parental lines that actually could be associated with.

58:44

And so anyway, super complicated.Yeah.And we still get, like I said, I was just hearing some emphasis talk about some cases that got recently and the questions maybe are not so complicated anymore because we do have laws about how you have to set it up.But what I hear still happens is intended parents wanting to have complete control over the pregnant woman, especially during the labor process, saying that, you know, they contracted that they get to decide, kind of.

59:12

What happens?So C-section?No C-section, that kind of thing.So natural not.Medicaid.Does she get an epidural?What if she asks for an epidural?In the contract, we said she's not allowed to have one.So these kinds of things come up.In which case, I think we generally say we will trust the woman who's pregnant to make her own medical decisions up until the point of birth.

59:35

And then apparently I just heard somebody said, well, we once had an issue with the birth mother wanting to breastfeed and the intended parents not wanting that.So it gets so complicated.Yeah.But there's also got to be limitations too.Like, I mean, if your gestational surrogate is smoking meth, I mean, I feel like I would have a an opinion about whether she could smoke meth, but but also like, is she taking her prenatal vitamin every day?

1:00:02

Like I you know there's a lie in there.Yes.And yeah, you can't force another person to do anything, right?So yeah, yeah, I guess you could like, try to report her to the law enforcement for doing something illegal.But beyond that, you can't force a pill down someone's mouth if they don't want to take it.

1:00:19

That would be abuse, right?So, like, but yeah, So what can you contract and what can't you contract?It's still.It's still a live question.Yeah, yeah.Great Case.Thanks, Tyler.ABM, talk to you soon, Devin.All right.

1:00:34

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