Hiring Mothers

Will it be legal in Michigan?

Childless husband with infertile wife wants female donor for test-tube baby. Caucasian background. Indicate fee and age. All answers confidential.

That ad, published last year in three Michigan college newspapers, drew more than 200 responses. Almost all were from young white women willing to accept artificial insemination and bear a child for the advertisers, a Dearborn, Mich., couple in their early 30s.

The eager volunteers asked fees ranging from $200 to $10,000. One, who said she wanted to be a good Samaritan, described herself as "white, 23, blonde, green-eyed, slow to anger, strong-willed." Another was a medical student who asked to have her tuition paid for a year. A third was a 28-year-old mother of two who wanted to bear another child, but could not afford to keep it. One letter came from a man who volunteered his girlfriend. There was one drawback to the whole enterprise, however: its legality was questionable.

Knowing that Michigan law forbids the sale of babies, Noel Keane, the Dearborn attorney who placed the ad for the childless couple, checked with Wayne County juvenile court for an informal opinion. Judge James Lincoln said yes, a volunteer could legally bear a child for the couple to adopt, but no, the law did not allow the payment of fees to the mother for the service. Suddenly the reservoir of surrogates dried up. Explains Keane: "We don't have any of them now. As it turns out, all of them were interested in money."

Yet the demand for surrogates remained strong. Keane says he has received a thousand letters from couples seeking volunteer mothers, simply because there are so few white babies available for adoption. Says he: "There's a four-or five-year wait now, if a couple is lucky enough to get on a list at all." As a result, despite potential legal problems, some have already opted for surrogate mothers. Debbie and George, a couple who came to light after Keane's publicity, say they asked a good friend to bear George's child. Debbie herself impregnated the woman with a tube filled with her husband's semen. All three, plus baby, are now living together. Keane is representing two other couples who have hired surrogates. Yet another case has been reported in the San Francisco Chronicle: a married California Sunday-school teacher paid an unmarried woman $7,000, plus medical expenses, to bear his child. The baby girl is now 18 months old.

Payment of fees to mothers who put their children up for adoption is illegal in most states, but Keane thinks surrogate motherhood--using the husband's sperm--is a special case. This month he and an associate, Attorney Robert Harrison, took the issue to court; they asked a Wayne County circuit court judge to enjoin the state attorney general from interfering in the payment of fees to surrogate mothers. Says Harrison: "The question is, does the state have sufficient interest in this entire scheme which overrides the right of privacy and the right to bear and beget children. We don't think so."

The lawyers concede that baby-bearing contracts would raise other difficult questions. If the surrogate mother decided to keep the baby, could she sue the father for child support? What if the couple divorced or if one or both died before the surrogate gave birth? If the biological mother suffered depression after giving up the baby, could she sue for damages? Says Keane: "I don't know the answers to any of those serious questions." But he is convinced they could be ironed out if the use of paid surrogates is ruled legal and regulated by the state.

In pressing for that ruling, Lawyer Harrison cites various precedents, including the Supreme Court's decision on abortion, which said that the right of privacy "has some extension" to matters of marriage and procreation. But his case involves the sale of a child, or rather the sale of half a child, since one of the buyers is also the biological father. That requires a Solomon-like decision from the circuit court, which is expected to rule within the next month.

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