Surrogacy and Baby M

Case Study: Surrogacy and The Case of Baby M (1987)

Here is a copy of the judgment.

Watch Episode 5 of Michael Sandel’s Harvard Course which debates this issue in part 2.

Extract from Lawrence N. Hinman: Surrogacy and Reproductive Technology, an introduction to the issues

The interests of the surrogate have even greater standing if the surrogate is also the genetic mother. This was the situation in the case of Baby M, where the surrogate mother- Mary Beth Whitehead – was also the genetic mother of the baby she was carrying for William and Elizabeth Stern; William Stern was the genetic father through artifical insemination. Mr Stern contracted with Mrs Whitehead for her to be the surrogate mother for the Stern’s child; in return, they promised to pay her $10,000 and to pay her medical expenses.

Several days after the birth, she asked the Sterns to allow her to take the baby back for a week, and the Sterns agreed. The next day, Mrs Whitehead left the state to visit her mother. Shortly thereafter, Mrs Whitehead told the Sterns that she wanted to keep the baby  and she eluded a subsequent court order requiring her to return the baby to the Sterns. She ran away with the baby for almost three months. After numerous press conferences, suits and countersuits, the court awarded custody of the baby to the Sterns but gives Mrs Whitehead visitation rights. However, the court did not uphold the enforceability of the surrogacy contract itself; rather, it awards custody on the basis of what it considers to be “the best interests of the child.”

Consider the argument for and against returning the baby to Mrs Whitehead.

Note that the court took the same view as enshrined in UK legislation: that the welfare of the child is paramount. What other ethical viewpoints could the court have taken?

Suppose the motive of the surrogate mother isn’t money, but a desire to bring joy and happiness to another couple. Does this change the ethics of surrogacy?

Further reading:
New York Times, Baby M, Ethics and the Law
Time Magazine, Essay: Baby M – Emotions for Sale

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