Twenty-five years after the landmark Baby M case focused international attention on the rights of surrogate mothers in New Jersey, state lawmakers are poised to consider a new measure that would allow residents to formally contract with — and pay — women to carry a donated embryo to term.
The move has rekindled the kind of emotional reactions that were so much a part of the Baby M controversy, with backers of the bill and its opponents scrambling to press their arguments before a vote in the state Senate on Thursday.
But while three states criminalized surrogacy after the Baby M ruling, New Jersey never did, despite a ruling from a bioethics commission that said the state should do just that.
Supporters argue that these so-called “gestational carriers” are different from surrogates because the birth mothers are not using their own eggs but, rather, donated fertilized eggs. Under the proposal, women would give up their rights to the child and, in return, could be paid an uncapped sum for living expenses through their pregnancy.
“I think people don’t understand the difference between a true surrogate and someone in a carrier role,” said Melissa Brisman, a Montvale-based attorney who used a carrier herself and now pairs clients with out-of-state women who will contract to become carriers.
Opponents — including a coalition of groups as diverse as the National Organization for Women and the socially conservative Family Policy Council — say the bill would violate the rights of all birth mothers and “lead to the radical creation of a breeding class that is exploitive of women.”
“This is without question the most radical, most unregulated arrangement,” said Harold J. Cassidy, who served as chief counsel in the Baby M case and said gestational carriers are nothing new and go back to the 1980s.
Cassidy — who has requested a meeting with Governor Christie on the bill — said even among the handful of states that allow carrier agreements, New Jersey’s bill, sponsored by Sen. Joe Vitale, D-Middlesex, would “strip away” safeguards built into the adoption process to screen prospective parents and to preserve the rights of the birth mother.
“Every single policy and protection we have ever had goes out the window,” Cassidy said.
The Baby M case pitted William and Elizabeth Stern, a Tenafly couple unable to conceive, against Mary Beth Whitehead, who signed a contract to give up the baby but then tried to renege after the child was born. The state Supreme Court ultimately ruled that the surrogacy contract was illegal and tantamount to baby selling but still gave primary custody to the Sterns.
And while the state’s bioethics commission recommended in 1989 that New Jersey should deter surrogacy and carrier agreements, legislation to that effect was never passed — setting the stage for the current debate.
Making a legal distinction between “gestational carriers” and surrogates is the newest front in this decades-long fight.
But the proposed law and its provisions to allow women to be paid as carriers have shocked opponents, who say the bill attempts to falsely frame carriers as a new phenomenon and threatens women with an age-old form of exploitation.
In a statement, the coalition of opponents warned that the bill “represents a commodification of women and children.”
Kathy Sloan, a board member of the National Organization for Women and that group’s representative to the United Nations, who has testified against surrogacy, said Tuesday she feared New Jersey would follow other states in allowing uncapped payments of expenses to carriers.
In theory, that should cover living expenses, but in reality it amounts to payments from rich couples to poor women, Sloan said.
“Surrogacy turns a seemingly private transaction into de facto abusive employment practices — because it exploits women’s poverty and subordinate status in this country and around the world,” Sloan said.
But Brisman says the use of carriers is already going on, and that state insurance regulations allow health plans to include coverage of treatment for women seeking in vitro fertilization with a gestational carrier. The law, she says, would formalize the arrangement for the protection of both sides.
“That protects everyone,” she said.
Sen. Gerald Cardinale, R-Demarest, has introduced a bill that would outlaw surrogacy. That bill, however, has not been scheduled for any hearings. Vitale’s bill faces a full Senate vote Thursday, where Democrats have a majority. It if clears, it would then head to the Assembly.
Juliet Fletcher, North Jersey