Proponents of surrogacy arrangements assert that a married couple's right to procreative autonomy includes the right to contract with consenting collaborators for the purposes of bearing a child. The right to genetic continuity and to rear offspring are all part of the right of reproductive choice for the contracting father and his partner.

Critics of surrogacy arrangements similarly cite reproductive autonomy as the basis for their claim that women cannot be compelled by contract to use their bodies in particular wayeither to forgo the right to abortion or to be fetal containers. The right to autonomy over her own body and to rear the offspring she has borne are all part of the mother's reproductive freedom.

Both proponents and critics of surrogacy arrangements, therefore, claim that their positions maximize freedom and liberty. Each position, of course, focuses on the autonomy of the party the commentator favors; the analysis is invariably outcome-determinative, without enunciating a neutral civil liberties framework. Neither proponents nor critics define clearly what the right to procreate entails, or what resolution is warranted when there is a conflict.

The growing popularity of noncoital solutions to infertility has raised questions about the need for public policies to regulate these techniques. While surrogacy has dominated public attention, controversy has also surrounded in vitro fertilization (IVF), embryo freezing, and gamete donation.

The policy concerns arise from the potential impact that the means of noncoital reproduction—embryo manipulation or use of gamete donors and surrogates—could have on offspring, collaborators, the family, and gender-based reproductive roles. For example, IVF techniques involving the creation and manipulation of human embryos may harm embryos and the offspring to which they lead. Noncoital techniques involving gamete donors and surrogates raise issues of offspring welfare, the interests of collaborators, exploitation of women, and effects on the family and society generally.

A basic question for public policy is the scope of private discretion over noncoital means of forming families. Should the state prohibit or regulate use of these techniques, or should their use be left to the free choice of infertile couples, collaborators, and physicians? Since state limits on reproductive choice are necessarily problematic, the issue is whether noncoital reproduction poses risks so significantly different from coital reproduction that regulation is justified.

How did surrogate motherhood evolve from a hare-brained, fly by night idea of the late 1970s into one that had at least some mainstream, middle-class support in the mid-1980s? Many explanations have been suggested. Although the rate of infertility has not increased, infertility is no longer a secret, and there are major public support groups, like RESOLVE, that advocate for infertile couples. New and powerful techniques like IVF (in vitro fertilization) have been developed, and although they help very few people, they have been widely publicized and approved. And babies are fashionable again. As one movie critic put it: Men and women do not fall in love with each other in the movies anymore. They fall in love with babies. Babies are the new lovers—unpredictable, uncontrollable, impossible and irresistible.

These explanations all have some merit. But the core of surrogate motherhood lies in the modern fairy tale that babies can properly be viewed as a consumer product for those with money to purchase them, and that by permitting this transaction we will all live happily ever after. As a product babies have been hyped by slick, white, middle-class professionals and advertised in the free-market environment of the 1980s. We are asked not to look behind the resulting children to see their lower-middle-class and lower-class mothers.

Among the many new forms of human reproduction, none raises more problems of public policy and of law than the practice of what is known, rather inaccurately, as surrogate motherhood or surrogacy. The central policy issue is settling on the paradigm that should govern surrogate motherhood, a model of family relations (adoption) or of contractual relations (sale of a product or service). And the central legal issue is whether any restrictions on personal choice that follow from the policy selected—and especially from a rejection of the contractual model with its implication of free choice—are constitutionally permissible.

We conclude that surrogate mother arrangements should be handled from the perspective of adoption. As recent judicial decisions have demonstrated, existing law on parents and children is largely adequate, and the emergence of surrogacy as a social practice does not require major law reform efforts. Furthermore, neither these rulings nor legislation proposed in many jurisdictions to ban commercialized surrogacy intrude impermissibly on the range of choices about reproduction protected by the Constitution of the United States.

The recent case of Baby M has brought surrogate motherhood to the forefront of American attention. ultimately, whether we permit or prohibit surrogacy depends on what we take to be good reasons for preventing people from acting as they wish. A growing number of people want to be, or hire, surrogates; are there legitimate reasons to prevent them? Apart from its intrinsic interest, the issue of surrogate motherhood provides us with an opportunity to examine different justifications for limiting individual freedom.

In the first section of this article, I examine the Baby M case and the lessons it offers. In the second section, I examine claims that surrogacy is ethically unacceptable because it is exploitive, inconsistent with human dignity, or harmful to the children born of such arrangements. I conclude that these reasons justify restrictions on surrogate contracts, rather than an outright ban.

Commercial surrogacy presents complex legal issues; the problems that it does not present are those of high tech reproductive medicine. All the new techniques for overcoming infertility, such as in vitro fertilization and the like, are medically complex but—as long as they involve a married couple and no third-party donors—legally simple. Surrogacy is so medically uncomplicated that it can be done without any physician involvement, but it is the most legally complicated means of providing a baby for an infertile couple.

From a time in England when fathers could sell their children into slavery to a day in which the legal system supposedly protects the best interests of the child, the common law increasingly respects the rights of children as individuals with constitutional rights and not as chattels of their parents. If the courts accept commercial surrogacy as a legitimate enterprise, it seems that we have again reverted to the concept of child as chattel.

Is there anything ethically wrong with surrogate motherhood? Many people confess their inability to articulate their opposition in rational terms, yet they feel uneasy. The practice arouses negative emotions ranging from mild distaste to revulsion. Others say there is nothing wrong, in principle, with surrogate motherhood. It is a way of helping infertile women fulfill a fundamental human longing and, therefore, should be permitted and even facilitated. Many who are not fundamentally opposed to surrogacy nonetheless maintain that the practice ought to be regulated, in order to prevent abuses and to provide a mechanism for resolving conflicts that may develop in particular cases.

Surrogacy arrangements have been condemned by Roman Catholic spokesmen, in a legal brief by a conference of bishops in New Jersey, and by the Vatican in a statement issued by the Pope in March 1987. Feminists have denounced the practice, using rhetoric rather than argument, with the slogan woman as vessel. A group of wormen who agreed to bear children under surrogacy contracts has convened to speak out against such arrangements.

Proponents of the new reproductive arrangements tend to speak in terms of reproductive freedom, the right to be a parent, contractual obligation, and infertility therapy, while opponents speak of the natural bond of motherhood, the gift of a child, the integrity of the family, and playing God with the reproductive process. Underlying the rhetorical slogans are deep differences about the values that should guide evaluation of the disputed practices and policies. The proponents of surrogacy contracts place a high value on freedom and autonomy, and consequently on legally binding agreements to embark on birth projms that will alleviate for some the physiological blight of infertility. The opponents of surrogacy and other forms of nontraditional reproduction, on the other hand, defend the physical and genetic foundations not only of parenthood but also of marriage and family. The right to self-determination, they hold, should not extend beyond the personal relationships derived from the basic biological realities of marriage cemented sexually and natural parenthood.

Surrogate motherhood presents an enormous challenge for feminists. During the course of the Baby M trial, the New Jersey chapter of the National Organization of Women met and could not reach consensus on the issue. The feelings ranged the gamut, the head of the chapter, Linda Bowker, told the New York Time. We did feel that it should not be made illegal, because we don't want to turn women into criminals. But other than that, what you may feel about the Baby M case may not be what you feel about another.

We do believe that women ought to control their own bodies, and we don't want to play big brother or big sister and tell them what to do, Ms. Bowker continued. But on the other hand, we don't want to see the day when women are turned into breeding machines.

Surrogacy is not an easy issue for feminists. On one hand, it raises concerns about exploitation; one is faced with images of poor women being enlisted to produce babies for wealthy men and their wives, either because of fertility problems or because pregnancy is simply too inconvenient for those women who can afford to hire someone to do it for them. On the other hand, there is the specter of the state passing laws, once again, that tell women what they can and cannot do with their bodies. If we believe, as many of us do, that the state has no right to prohibit a woman from selling the sexual use of her body, doesn't the also have the right to sell the reproductive use? And if many of us, doctors, lawyers, law professors, have been willing to employ other women, less privileged women, to take care of our children after they are born, what is so different in moving the date back a bit and hiring them to carry our children before birth as well?

Assuming that surrogacy is not legally prohibited, does that mean that surrogacy contracts must be enforced? If we find something abhorrent in the idea of babies being taken from their mothers arms because, after all, a contract is a contract, we might argue that the contracts can be legal but unenforceable.

Surrogacy is not an easy issue for feminists. On one hand, it raises concerns about exploitation; one is faced with images of poor women being enlisted to produce babies for wealthy men and their wives, either because of fertility problems or because pregnancy is simply too inconvenient for those women who can afford to hire someone to do it for them. On the other hand, there is the specter of the state passing laws, once again, that tell women what they can and cannot do with their bodies. If we believe, as many of us do, that the state has no right to prohibit a woman from selling the sexual use of her body, doesn't the also have the right to sell the reproductive use? And if many of us, doctors, lawyers, law professors, have been willing to employ other women, less privileged women, to take care of our children after they are born, what is so different in moving the date back a bit and hiring them to carry our children before birth as well?

Assuming that surrogacy is not legally prohibited, does that mean that surrogacy contracts must be enforced? If we find something abhorrent in the idea of babies being taken from their mothers arms because, after all, a contract is a contract, we might argue that the contracts can be legal but unenforceable.

No matter what one's position, Baby M is a difficult case. Once a child of contract parenthood has come into being, sorting out the competing claims that changed intentions produce is inevitably a troubling process. Even when taken in the abstract, surrogacy arrangements raise disturbing questions: Can we expand the available options for forming families without risking sex, race, and class exploitation? Can we address the pain experienced by those unable to conceive and bear children without commodifying human life? Whatever our views of surrogacy, we cannot hope to resolve the dilemmas it poses without acknowledging and seeking to address the pain of infertility.

Given what we know about infertility, is commercial surrogacy—however troublesome—an appropriate response? Even with only partial information before us, the answer would seem to be a fairly clear no. Surrogacy is at best an after-the-fact accommodation to the problem of infertility, available only to those with substantial financial resources.

By the beginning of 1988, nearly six hundred babies had been born through surrogate mothering arrangements. Although there have been a number of lawsuits concerning custody or challenging adoption laws that appear to prohibit payments to surrogates, the majority of surrogacy arrangements proceed without judicial involvement. Nevertheless, surrogate mothering has engendered considerable activity in state legislatures, as well as two bills in Congress to ban the practice (H.R.2433 and H.R. 3264) and hearings by the House Committee on Energy and Commerce and the Subcommittee on Transportation, Tourism, and Hazardous Wastes. Most recently, the Congressional Office of Technology Assessment (OTA) released a report, Infertility: Medical and Social Choices. That report included the results of a survey of surrogate-mother matching services active in the United States in late 1987.

The Baby M case has forced us to take sides in the public debate over surrogate motherhood. Last year, advocates of this form of noncoital reproduction praised the New Jersey trial court for supporting the freedom to contract for such womb renting services, while critics warned that enforcement of such surrogacy contracts would condone the sale of babies and the exploitation of women as baby factories. In its unanimous opinion, the New Jersey Supreme Court sided with the critics. Based on New Jersey's adoption law and public policy, the court refused to enforce the contract that provided money to a surrogate mother in return for her agreeing to be artificially inseminated with the Semen of another woman's husband, to conceive a child, to carry it to term, and to relinquish her parental rights and surrender her child to the natural father and his wife, regardless of the child's best interests.

It has been estimated that in the United States some twenty thousand babies are born through artificial insemination by donor (AID) each year. With the startling new advances in reproductive technology, or what has been termed collaborative conception, it is now possible for a child to have up to five parents: an egg donor, a sperm donor, a surrogate mother who gestates the fetus, and the couple who actually raises the child. What we now face, then—not only in considering the New Jersey Supreme Court's decision In re Baby M but in the whole area of the new reproductive biology—is, in the words of a popular columnist, a mess.

Interestingly, the enormity of this complex, multiparent scenario—which Kerns to be on its way to becoming a reality with Baby M and its anticipated progeny—was totally lost on Mary Beth Whitchead. I just can't see how four peeple loving [Baby M], five people loving her, can hurt her, she said recently.

In commenting on the New Jersey Supreme Court's decision in the Baby M case, I will focus on the result of the court's decision and what it implies about the limits of judicial power, not on the court's opinion. The reason is that, excepting the court's basic premises, I can find little in the opinion to criticize. My difficulty, instead, is with the premises from which the court approached the case, and what they imply about the capacity of courts to construct legal doctrine on the basis of largely, if not wholly, unexplored social and cultural values. The result reached in the Baby M caw-that Mr. Stem is Baby M's legal father and Ms. Whitehead her legal mother—is, in my judgment, surely the worst result possible. That it was indisputably the logical, reasoned, and straight forward result of existing legal concepts of parenthood, adoption, baby-selling, and the like, as the New Jersey court so well opined, is hardly reassuring.