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`Baby M' case appeal nears while surrogacy debate goes on. Bills have been filed in 33 states, but only two have become law

Mary Beth Whitehead's appeal of the decision in the renowned ``Baby M'' surrogate birth case will be argued before the New Jersey Supreme Court on Sept. 14. Meanwhile, widespread debate continues over the issue of surrogacy.

American Bar Association (ABA) family law specialists, among others, have grappled with the issue and tried to arrive at specific guidelines for surrogacy arrangements.

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Dr. Lori Andrews, an American Bar Foundation researcher, said at the ABA convention here this week that, since the original Baby M trial, laws legalizing surrogate births have been proposed in 33 states. But no comprehensive legislation has been passed.

Two states have surrogacy statutes: Arkansas recognizes as parents couples who sign agreements with unmarried surrogates; Louisiana has banned surrogate contracts.

The New Jersey case developed when Mrs. Whitehead - who was paid $10,000 to be artificially impregnated with William Stern's sperm and bear a child for him and his wife, Elizabeth - decided she could not give up the girl baby.

In granting custody to the Sterns last March, a New Jersey judge ruled that surrogacy arrangements were legally binding, although New Jersey nor any other state had specifically authorized such contracts.

Since then, says Dr. Andrews, a legal authority on alternative reproductive techniques, some trends have surfaced, but the issue is still very much clouded. She says there still are relatively few surrogacy-related births across the US - an estimated 500 a year.

That estimate is much too low, according to lawyers who represent couples seeking to have children through this process.

Attorney Gary Skoloff, who represented the Sterns in the Baby M case, insists that surrogacy births now approach 5,000 annually. He notes that many surrogacy arrangements are kept secret.

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Andrews says that various guidelines for surrogacy are being proposed. Among them are:

Privately licensed agencies with standards to protect both the childbearing mother and the sperm donor.

Binding and court-monitored pre-insemination agreements that seek to avoid possible custody battles.

Strict physical examinations and psychological screening of women offering themselves as surrogates to determine their suitability.

Limits on payment to surrogates to discourage those who would be enticed mainly by financial gain.

Many adoption-related agencies that arrange surrogate services claim they already informally follow such guidelines.

Georgetown University law Prof. Patricia King says the events surrounding the Baby M case distorted many of the real issues regarding families.

``You can't talk about reproductive technologies without making some assumptions about the family,'' Professor King insists. She says there needs to be more emphasis on the ``obligations and duties'' of parents and the relationships between adults and children.

``An immediate goal should be to provide a child with two legal parents - preferably one male and one female,'' King adds.

In a surrogacy arrangement all adults involved have some legal claim to the child, she adds.

``You can't rate a sperm donor as more important than the woman who carries the child,'' asserts King.

Experts here were sharply divided over the right of a surrogate to change her mind even after signing a contract to relinquish her baby.

Dr. Nadine Taub, who directs the Reproduction Laws for the 1990s project at Rutgers University, insists that ``pregnancy and carrying a baby have special rights.'' Dr. Taub would allow a surrogate to change her mind.

She suggests that infertility - which affects an estimated 15 percent of US couples - is often medically treatable or resolved through education or other means. Taub also urges society to make better efforts to integrate work and family. ``Women should not have to choose between jobs and children.''

On the other hand, Gary Skoloff says that permitting this option would end surrogacy.

Lynn Paltrow, who heads the American Civil Liberties Union's Reproductive Freedom Project, suggests that there be ``damages paid'' if a surrogate decides to keep her baby after agreeing to give it up.

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