March 1987 VIII/7


In New Jersey two couples are contesting in court the custody of an infant whose existence would have been unlikely ten years ago. Conceived by Mary Beth Whitehead from the sperm of William Stern introduced into her body through artificial insemination, the infant has been given the name Sara by her maternal parents, and Melissa by her paternal parents. She has been named Baby M by the communications media.

Artificial insemination is nothing new. The novel and complicating issue in this case is that Mary Beth Whitehead promised to give her baby to the Sterns immediately after birth. However, she changed her mind and now wants to rear the child in her family. Thus, not only does this case present some novel questions about custody of children, the question arises whether to recognize legally contracts for so-called surrogate motherhood. Actually, a more accurate term for the contract is surrogate parenting because the father is a surrogate as well. As it happens so often in our society, the contestants in this dispute went to court in order to solve an ethical issue. But at present there are no laws and no court decisions which offer guidance for an ethical solution.


There is an intimate relationship between ethics and law; but one discipline does not substitute for the other. Ethics is a more fundamental and wide-reaching discipline; it concerns private as well as public behavior. Law concerns public behavior and is designed to establish justice by protecting ethical relationships in public life. Thus, the decisions of courts and legislatures should be based upon ethical norms. The need for ethical investigation before new laws or new decisions of courts are rendered is obvious. If there is no such investigation then our public policy will be built upon faulty foundations

What ethical norms should govern the court decision in the case of Baby M? Should custody be granted on the grounds that enforcing contracts is an ethical responsibility of the courts.? If so, it seems the Sterns should receive custody. Should the ethical perspective of maternal relationship to the child be emphasized? If so, the decision would seemingly be in favor of the Whiteheads. Should the decision be based upon the predicted benefits which Baby M would experience living in either home? Determining ethical norms on the basis of this perspective demands not only predictions about the future, but, as well, a determination or which parental qualities truly benefit a child.

Several pundits have observed that Justice Harvey Sorkow will have to be a new King Solomon to solve this case of Baby M equitably and ethically. Let us study the famous decision of King Solomon to see if it provides any ethical insight for a solution to this case. Two women came before King Solomon with a dispute (1 Kings 3:16). Both women lived in the same house, each had a child; one of the children died in the night and each mother claimed the living infant as her own. King Solomon, called upon to decide which was the true mother, ordered that the living child should be cut in half and a half given to each mother. Obviously, it was only a symbolic solution on the part of King Solomon. But the symbolic solution prompted action. One woman was prepared to accept the decision even if it should mean the death of the child; the other rejected the decision though it meant losing the custody of the child who would continue to live. King Solomon declared the woman willing to surrender her claim to the child in order to save the life of the child to be the true mother. Why did the King decide in this manner? True motherhood is not possessive. A mother in the valid sense of the word, does not act as though her child belongs to her; rather she considers the life and well-being of her child more important than her own. The actions we value in motherhood are actions which bespeak life Generosity, and enabling love; not actions which connote ownership, domination, or commerce.


The lessons from King Solomon's decision are valid today. Children are never to be considered a possessions of their parents. No one has a right to buy or own children. We may have a right to private property and a right to certain basic needs which are necessary in order to live a decent life, such as a right to food, housing, education, and health care. But no one has a right to a child. First, and fundamentally, a child is not a possession or property. Second, children are not to be used by parents to improve their own prospects in life. Bringing children into the world is a gift of life to another human being, not an investment directed toward the satisfaction of parents. The basis for parent/child relationships is not a limiting legal contract, but rather a mutual act of love; an act of love which must perdure mutually after birth in order to ensure that the child will be respected and reared as a person, not raised as a possession. Parenting of human beings should be characterized by continuing generosity and self-sacrifice if the child generated is to have an opportunity to live as a free and responsible human being.

Parenthood is not a commercial enterprise nor a transitory commitment. Thus, when a woman agrees to conceive and bear a child for someone other than her husband, she is treating the child to be conceived as a possession, something she is free to give away or sell. When a father contracts to supply sperm for conception of a child, he engages in fabricating a product not in an act of love. If fecundation occurs and the woman cooperates, he will have a new possession which he is free to keep, or discard if it seems flawed. Moreover, the family is a cause as well as a result of evolutionary development (Lucy, The Beginnings of Mankind; Johanson and Edey). If we legalize the process of renting wombs and buying children, we act contrary to three million years of evolution. Finally, through surrogate parenting we ask women to act directly contrary to the values associated with responsible motherhood because this form of parenting demands that mothers be prepared not to love their children.


For these serious reasons, it seems that Judge Sorkow and other justices and legislature across our land should declare "surrogate motherhood" illegal because it is unethical. Simply because a novel form of fertilization and gestation is possible does not imply that it is ethical nor does it imply that it should become public policy.

Kevin O'Rourke, OP

© Kevin O'Rourke, O.P.