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Surrogacy's Sticky Issues

THE debate over surrogate parenting continues in the United States - as well as elsewhere. A year after what has shaped up to be a landmark New Jersey Supreme Court ruling in the Baby M case that struck down surrogacy-for-pay, key legal and moral issues remain unresolved.

Among them: Is commercial surrogacy within the law? This is an arrangement between an infertile couple and a woman impregnated by the husband's sperm who agrees to bear a baby for them for a fee.

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Would surrogacy be allowable public policy if no money-for-services were involved?

Is this a matter strictly for states or local jurisdictions to resolve or is federal legislation in order?

What are the broader implications of this practice for families and for the rights of women?

There is little consensus on the answers to these questions. The trend of thought, however, runs along these lines:

Surrogacy, if it is to be allowed in any form, must not be tantamount to baby-selling. The latter is a felony in most places. And states and the federal government are increasingly cracking down on commercial adoption operations that transfer infants from poor mothers to wealthy couples. In these situations, tens of thousands of dollars change hands, with intermediaries - lawyers or others - the biggest beneficiaries.

No-fee surrogate parenting, even if regulated by state law, is bad public policy. Several courts, among them those in New Jersey and Michigan, have made this point. The practice exposes poor women to exploitation by those of financial means. Contracts are difficult to monitor. Divergence of laws among jurisdictions encourages couples to shop geographically for favorable circumstances.

Given the above, family matters are best resolved at the state, or local, levels. In the past two years, six states have passed laws banning or sharply curtailing commercial surrogacy. These include Florida, Indiana, Kentucky, Louisiana, Nebraska, and Michigan. Others, notably New York, are moving in this direction.

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Congressional legislation has been introduced to stamp out interstate arrangements. One proposal would impose a $50,000 fine and a prison sentence of up to five years on those who negotiate such contracts. No penalty would be placed on the infertile couple or the woman who bears a child for them.

The surrogacy controversy has broadened the discussion of women's rights and the changing role of the family in society. It has fostered some unlikely coalitions, such as feminine activists and family traditionalists.

The former stress the economic gap between surrogates and the families they provide with children. And they also point out the importance of women having final control over their own bodies. In line with this, they back the right of a surrogate to change her mind, and keep her baby, at any point in the process. The latter reject human technology for religious as well as social reasons.

Ethicist Thomas Shannon, in his new book, ``Surrogate Motherhood: The Ethics of Using Human Beings,'' makes a strong case against surrogacy. ``Its utilization,'' he writes, ``continues the social disenfranchisement of women, puts the child at the risk of existing in a compromised social and familial context, and simply encourages the commodification of women and children.''

One must show great compassion for childless couples who earnestly desire children. They are not the culprits, nor are those women who selflessly want to help the infertile. It's the commercial baby vendors who need to be checked.

A Thursday column

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