Baby Sellers or Sisters of Mercy? Surrogate Mothers Give Birth to a Legal Debate

It’s just before midnight, and a delivery room at a Louisville hospital overflows with nervous spectators. After six hours of labor, the woman on the delivery table is about to give birth to her fourth child. Looking up, she sees her doctor, several nurses and the child’s father, who has just arrived from his home in the Middle East. Not only has she never seen him before tonight, but she doesn’t know his name and will probably never see him again. She has agreed to carry this man’s child because his wife, also in the delivery room, is infertile. “It’s a boy,” says the doctor, as the baby’s father and his wife embrace. The delivering mother looks for reassurance past her own husband, standing nearby, to the ecstatic couple. The father nods, before leaving with the baby: “We will be parents like you, and better.”

Not exactly your everyday delivery room scene—not yet, at least. Helped by the likes of Dr. Richard Levin, 37, the De Mille who directed this little drama and about 30 others like it since 1979, many more women are agreeing to be artificially inseminated by the husband of an infertile woman, then to carry and deliver the baby to the couple, usually for about $10,000. If the trend continues, this process, called surrogate mothering, is likely to produce its own little baby boom before the end of the decade.

Levin’s Surrogate Parenting Associates, Inc. and about 15 other agencies have a rapt clientele for their service. Many couples who skipped child rearing to establish dual careers, for example, face unexpected impediments when they try to have children. Stress at work, contact with venereal disease, aging and, for women, the use of contraceptives sometimes cause infertility. Solutions may include microsurgery, hormone shots or, when the male is sterile, artificial insemination. Other couples try to adopt, though many balk at the long delays, the shortage of newborn Caucasians, and age limits for prospective parents. For the three million or more infertile married women in the U.S., surrogate mothering agencies have become an increasingly attractive last resort, especially since the process produces a child with the father’s genes. At least 100 babies have been born to surrogate mothers so far, but about 100 more surrogates are now pregnant or trying to conceive, and hundreds of others are on waiting lists around the country.

Yet, despite the growth of this birth-by-proxy business, not a single regulation exists to control it. A dozen states have seen the death or delay of legislation that would regulate the process, or in some cases make it illegal. In the meantime, anything goes, with lawyers, doctors, psychologists and even former housewives running the show. “You could rent an office, hang up a shingle that says ‘Surrogate Parents Inc., Babies for You, Cheap,’ and no one could stop you,” says William Handel, a lawyer who helps run an L.A. agency and a separate, nonprofit surrogate parent information center.

The practice raises dozens of unresolved questions, any of which could turn the dream of a surrogate baby into a nightmare. Among them: Who takes responsibility for the child? Who monitors the good conduct of the surrogate mother during pregnancy? What happens if a baby is born deformed or mentally deficient? And what if the surrogate mother changes her mind and won’t give up the baby?

The legal complications alone are daunting, since the contract that begins the process is unenforceable. Says Doris Jonas Freed, chairperson of the custody committee of the American Bar Association: “Surrogate mother contracts violate adoption laws in practically every state—laws against baby buying and selling, and laws against consenting to the adoption of children until after they are born.”

It costs a couple anywhere from $16,000 to $40,000 for a surrogate baby—and the more complications, the higher the figure. This covers the fee for the mother, plus psychological, medical and legal counseling. Factors that can easily run up expenses: transportation and living expenses, if the surrogate and the couple live far from the agency; repeated inseminations if the first fails; and difficulty in finding a potential mother suitable to the couple. While the fee is roughly triple what it costs for even an expensive private adoption, some couples go so far as to take out second mortgages on their houses to cover the expense.

The experience of Noel Keane, 44, a Dearborn, Mich. lawyer who helped arrange one of the first surrogate births in 1978 and has brokered 31 others since, is a case study in the problems of an unregulated trade. Early this year one of Keane’s clients, Alexander Malahoff, refused to accept his supposed child, the sickly baby of surrogate mother Judy Stiver. Tests proved Malahoff wasn’t the baby’s father. Stiver’s husband had impregnated her before she was artificially inseminated with Malahoff’s sperm. Now Malahoff is suing the Stivers for $50 million, charging breach of contract, and the Stivers are suing him for $1 million for invasion of privacy. Both Malahoff and the Stivers are suing Keane and four doctors. In another Keane case, a surrogate mother refused to relinquish her baby to the natural father, and, with the father’s consent, kept the child.

Several agencies try to get around such problems by screening both surrogates and clients intensively, sometimes for months, before signing them up. Admitting to “very little, if any” surrogate screening, Keane says, “The early ones saw me every time. But I’m so busy now, sometimes I never see them.” Keane, whose own fee is $5,000, apparently wants to leave the process open to almost anyone: “Nobody screened my wife and me when we had a child.” He has already helped singles to adopt and says he would arrange a birth for clients in their 50s who are too old for traditional adoption.

In Louisville, Dr. Levin has his own problems. In April, Circuit Court Judge Jack Mudd denied one of Levin’s surrogate mothers the right to relinquish her baby, because state law presumes the wife’s husband to be the father of any child. “Children need the protection of someone other than those motivated by personal gain,” declared Mudd. “We don’t know what kind of environment they’re going to. I don’t think you can sell them like apples and oranges.”

Levin, unwilling to release any information about his charges (clients have paid him $10,000 for his medical and administrative services alone), has been criticized obliquely by the leadership of his own profession. The American College of Obstetricians and Gynecologists declared recently that any physician involved in both the business and medical aspects of surrogate mothering could be accused of conflict of interest. Retorts Levin: “The money that I’m charging is a fee for service. How do they expect surrogate parenting to happen? Do they want to have lawyers run the whole process?”

The American Bar Association’s Doris Freed doesn’t see a future bonanza for lawyers. She points to proposed state laws in New York and New Jersey that would deny surrogates and surrogate agencies any profit from their services. If similar laws pass nationwide, Freed predicts most agencies will close. “After all,” she says, “you know what they’re in business for—money.”

Families involved generally disagree. “Dr. Levin wouldn’t be in it if he didn’t care,” says one adopting parent. Furthermore, according to one study, surrogates volunteer as much for the desire to help infertile couples as for the money. Says one, “If I could afford to, I would do it for free.”

Monetary considerations aside, the demand is certain to grow. “It was a bargain, worth every penny,” says a couple in Levin’s program who paid $25,000 before they took home a baby. The view of one couple in their mid-40s who spent $30,000 and tried two agencies before getting their baby is considerably less sanguine. “Let the buyer beware,” says the father. “Human nature hasn’t changed. With any new marketplace, there are going to be unscrupulous merchants.” But the adoptive mother adds, “All in all, I’d do it again.”

Written by MICHAEL SMALL, reported by MARILYN BALAMACI, Chicago, and SUSAN CHAMPLIN, Los Angeles