By James S. Kunen
March 30, 1987 12:00 PM

As William Stern and surrogate mother Mary Beth Whitehead awaited a judge’s decision in their custody battle for Baby M in Hackensack, N.J., 500 miles away in Dearborn, Mich., it was business as usual—or better than usual—for attorney Noel Keane.

Keane, 48, the founder and half-owner of the Infertility Center of New York, which arranged the ill-conceived match between Stern and Whitehead, is America’s undisputed father of surrogate motherhood. Through his law office in Dearborn and the New York center, he has arranged far more surrogate births than anyone else—153 of this country’s 500 or so. By devising elaborate contracts and pulling together a supply of surrogates sufficient to meet the demand, Keane has revolutionized the production of babies just as surely as that earlier son of Dearborn, Henry Ford, revolutionized the production of automobiles. And inquiries from couples seeking his help have quadrupled in the wake of the Baby M publicity.

Keane once seemed unlikely to cause a ripple beyond the confines of the industrial city of 90,000 on the edge of Detroit. The third of five children of an autoworker and a housewife, he put himself through the University of Detroit law school at night and upon graduation in 1969, contentedly embarked on the usually obscure, if often lucrative, career that is the lot of the smalltown lawyer. But in 1976 a brother of a friend of his sister’s walked into Keane’s office with a bizarre request: Could Keane please arrange for a woman to be artificially inseminated with the man’s sperm and bear his child? Keane put an advertisement in college newspapers—at that time the city papers refused to run it. A woman answered the call, and a baby was born in 1978.

Since then the baby business has boomed. Keane’s surrogate arrangements produced 65 children last year and have delivered 13 already this year, with 31 more on the way. And he has another 150 couples lined up. Each couple pays him a basic fee of $10,000, as well as $10,000 to the surrogate when the baby is turned over, plus an average of $5,000 in medical and other costs. Now Keane can pay himself “$120,000 to $160,000” in salary from the firm’s proceeds, and to confirm his success he need only look at the lovingly framed newspaper clippings that crowd his office walls(“Noel Keane—Baby Broker or Saint?”).

But his burgeoning fame comes at the price of often bitter criticism: He’s exploiting women; he’s selling babies; he’s defying the laws of God and nature. But Keane, a Catholic who attends Divine Child Church with his wife and two sons, contemptuously dismisses his critics. “Who gives a s—? That’s my response,” he snaps, his reddening face belying his avowed indifference. “Let me show you why I can stand up to all this bulls—.” He reaches for a fat three-ring binder entitled “Dear Uncle Noel,” which contains correspondence from satisfied clients. There are letters with pictures of babies splashing in wading pools and babies tossing food from their high chairs (“Next time could you give us one with manners!”), and babies lying under Christmas trees and babies swinging on swings. One repeat client writes of her two Keane-arranged daughters, “How wonderful it is when one mutters ‘I love you, Mommy.’ I still have to pinch myself and look around wondering, ‘Is it really me?’ ”

If his clients’ joy effectively rebuts his critics, in Keane’s view, it does not entirely still the troublesome voice of his own intellect. After arguing that he is buying not babies but the “services” of the surrogate, he himself raises a question: “If we are paying the surrogate for her services, if she has a miscarriage, why doesn’t she get one-ninth or five-ninths, whatever it might be, instead of a maximum of $3,000?” (The contract spells out that if the surrogate miscarries prior to the third month, she gets no fee, just expenses. In the third or fourth month, she gets $500. In the fifth through seventh month—$1,000. A miscarriage in the eighth or ninth month or a full-term still birth nets the surrogate $3,000.) “Well, that’s the agreement,” Keane says with a shrug. “And these couples would like to try it again, rather than pay out all the resources that they’ve saved up. Keep in mind who I represent. I represent the couple.”

To charges that his business amounts to the rich renting the wombs of the poor, Keane replies, “The surrogates aren’t poor. For the most part they’ve been through high school or finished one or two years of college. They’re generally housewives. They have their own children. Their motivation is to help somebody, though the money would be helpful.”

Couples flipping through Keane’s binders filled with surrogates’ applications and photos read again and again that the women are motivated chiefly by altruism. The candidates typically say, as does Marilyn Johnston, 34, “I want to see someone else have the joy that my husband and I have had.” Johnston, married with two kids of her own, recently delivered the second of two babies for the same Keane client. Johnston threw a baby shower for the adoptive mother, who acted as her Lamaze coach.

The couple named the first baby Johnston delivered “Marilyn,” after her. Johnston has visited her namesake, now 3, several times, and the little girl, who calls Johnston “Other Marilyn,” has been told of their relationship. “If you ask her, ‘Who made you?’ she’ll say ‘Jesus made me,’ ” Johnston says. “And if you ask, ‘Where did Jesus make you?’ she’ll say, ‘In other Marilyn’s tummy.’ ”

Johnston maintains that the little girl is not confused or troubled by her presence. “If Marilyn falls and hurts herself, she wants her mother, she doesn’t want me,” Johnston explains. “Her mother has raised her, not me. I’ll take some of the credit for her looks and her brains, but as far as her personality and the type of child she is, I give all the credit for that to her mother.” Johnston denies any feelings of loss. “I love those two children and they sure were nice to hold, but they’re not mine,” she says.

Not all of Keane’s surrogates are so blissful: Mary Beth Whitehead is his third to refuse to relinquish the child. (In the earlier instances, the childless couples chose not to contest custody, in one case because the would-be adoptive mother, a pseudohermaphrodite who had undergone surgery to more clearly resemble a woman, was leery of publicity.) Keane is currently embroiled in four lawsuits stemming from surrogacy arrangements, including one brought by Mary Beth Whitehead, who charges that the Infertility Center of New York did not subject her to adequate psychological screening before allowing her to be a surrogate. “She never should have been in the program,” says her lawyer, Joel Siegal. “They handled the whole process negligently. They were engaged in an ultrahazardous activity and they had a duty to exercise special care.”

Whitehead was interviewed by the Infertility Center’s consulting psychologist, Joan Einwohner, who noted that “she expects to have strong feelings about giving up the baby at the end.” But, Keane emphasizes, the choice was left to Whitehead and the Sterns. Keane assiduously avoids responsibility for the surrogates’ and couples’ mutual selection. The surrogates must consult an attorney before signing on, and the couples’ contract explicitly provides that their selection of surrogate “was made without recommendation, inducement or influence by Noel P. Keane,” and that “it is expressly understood that Noel P. Keane cannot and does not guarantee that [the surrogate] will become pregnant or abide by the terms of the Surrogate Parenting Agreement.”

Keane’s surrogates are evaluated psychologically, but only after they are selected by a couple and then principally to establish that they are legally competent and sufficiently aware of what they are getting into to give their informed consent. The couples are not evaluated at all. Keane says it’s none of his business what sort of home the child will be raised in. “No one came in and looked at my home when my wife and I had children,” he declares. “He [the natural father] is fathering his own child, just like I did. This is not analogous to adoption.”

Some surrogacy outfits take a more restrictive view, screening all—and rejecting most—surrogates at the time of application, requiring them to attend counseling groups from before their selection by a couple until after childbirth, and evaluating the motivation and stability of the fathers and wives who would hire them. “Psychological evaluation of the surrogate and the couple, and ongoing counseling for the surrogate, should be mandatory,” says psychologist Hilary Hanafin, 29, of the Center for Surrogate Parenting in Beverly Hills, Calif. “I think it’s unprofessional not to provide those services.”

Harriett Blankfeld, 40, executive director of the nonprofit National Center for Surrogate Parenting in Chevy Chase, Md., points out that her center does testing and counseling with special emphasis on “the issue of relinquishment.” Says Blankfeld, “The question is, ‘Will this surrogate birth endanger this woman psychologically over the long term?’ We’re here to provide an infertile couple with a child, yes, but we’re not here to destroy the surrogate’s life.”

Keane’s hands-off policy is defended by psychiatrist Philip Parker, who interviews Keane’s surrogates in Michigan. “I believe you shouldn’t tell someone who is capable of making her own decisions what to do,” he says. The more selective operations, he suggests, “are implying that the ones they put their stamp of approval on will do well.” In fact, says Parker, who has published several scholarly papers on the subject, there is no reliable way to predict whether a surrogate will run into problems. “I’m often asked, ‘How do you think she’ll do?’ ” he says. “I always answer, ‘I don’t know. I wish I did.’ Eventually a surrogate mother will go psychotic, will kill herself, kill her husband, kill the baby. These things happen when women have babies. The question is, will surrogate mothers do so more or less often than other mothers? We don’t know.”

We will find out. Keane predicts surrogate births will total at least 1,000 by the end of this year. At this point, he says, any attempt to outlaw surrogate parenting would simply drive it underground. “I don’t think they can stop surrogate parenting,” he says, but he would gladly submit to government regulation in exchange for legal recognition of his contracts’ enforceability. “I hope to God we get some legislation, so we really know where we’re at.”

Meanwhile, unguided, Keane plies his novel trade, waiting for his fellow citizens to decide whether he is an errant lawyer operating beyond the law, or the pioneer of an infant industry.