LAW

A media judgment on surrogate birth

Shona McKay February 14 1983
LAW

A media judgment on surrogate birth

Shona McKay February 14 1983

A media judgment on surrogate birth

LAW

Shona McKay

Phil Donahue for once did not have to call for quiet on his set during a segment of his morning television talk show in Chicago last week. For almost two hours Judy Stiver, a 26-year-old clerk from Lansing, Mich., had insisted that the child she had given birth to on Jan. 10 was the result of artificial insemination with the sperm of Alexander Malahoff, a 46-year-old accountant from Queens, N.Y. Equally adamantly, Malahoff, whose wife, Nadja, 32, cannot bear a child, pointed his finger at Stiver’s 41-year-old husband, Ray, and declared that he was the father. Clearly, when the participants accepted Donahue’s invitation to air their views on a story that had grabbed media headlines, feelings were still hot. The argument, however, soon became academic. With Emmy-night flair, Donahue produced the just-released results of blood tests that conclusively proved that Malahoff was not, in fact, the true father (the recently developed human leukocyte antigen [HLA] blood tests are now regarded as 99-per-cent accurate in determining paternity). And even though the Stivers think that they did not have intercourse for 30 days after the insemination, Judy admitted, “I don’t write down every time we have sex.”

The voyeuristic spectacle on the Donahue show, which is scheduled to be aired across Canada on various dates beginning this week, was merely the denouement of a plot line that was tangled enough to inspire the envy of Hollywood soap writers. But the sensational confrontation threw an unsettling new complication into the increasingly popular and highly lucrative business of surrogate parenting.

The story began more than a year ago, when Malahoff consulted Dearborn, Mich., lawyer Noel Keane, the United States’ most famous surrogatebaby broker. After selecting Judy Stiver from Keane’s files of more than 300 available candidates, Malahoff agreed to pay the surrogate’s fee of $10,000, $5,000 in legal expenses and all medical costs, including the $1,800 fee for insemination. At birth, the child, a boy, was found to be suffering from microcephaly— a small skull—a condition that usually indicates mental retardation. Standard, non-HLA blood typing performed in January showed that “Baby Doe” had O positive blood, like his mother, while Malahoff had AB positive—a blood type unlikely to produce

an O positive child. Malahoff cried foul and returned to New York without the baby he had contracted to buy. When the state, on behalf of the hospital, served Malahoff with a court order to appear for a custody hearing in Michigan, he countered with a $50-million breach-of-contract suit against the Stivers. The child was placed in the care of local social service workers. However, the Stivers have since announced that they wish to take their baby home, unless hospitalization or institutionalization is required.

The Stiver baby has focused attention on the strong potential for error in surrogate parenting. An estimated 1,000 surrogate babies were born in the

United States in 1982 alone, and many did not undergo the HLA test to determine kinship. Says William Leininger, Malahoff’s New York City lawyer: “Only two of Keane’s 23 surrogate babies have had the blood testing. How do these fathers really know whose kid they have?”

Even though a committee of the British Medical Association last week recommended that Britain should ban surrogate motherhood, the demand increases for a service that is often the only hope for infertile people who want to have children. According to one U.S. surrogate parenting association, an undetermined number of surrogate-bred babies have been brought to Canada, even though Canadian law clearly pro-

hibits the buying and selling of babies. Noel Keane notes that currently he has “five Canadian couples awaiting their surrogate’s delivery and three or four more couples looking for the right surrogate.” As a result, the legal and medical professions face pressure to set up specific guidelines and tests.

A subcommittee of the Ontario Law Reform Commission is currently wrestling with the issue. The commission took on the job when Canada’s first official surrogate baby was born last June to a Scarborough, Ont., man and a Florida woman. In the controversial case, the Metropolitan Toronto Catholic Children’s Aid Society fought for custody of the child. The Canadian family eventu-

ally won, but the Florida surrogate went unpaid.

Meanwhile, both the ethics committee of the Canadian Medical Association (CMA) and the Montreal Institute for Clinical Research are planning reports on the legal and ethical implications of surrogate births. Dr. Arthur Parsons, chairman of the ethics committee, says, for example, that the Michigan case could have been avoided if the mother had undergone obstetrical examinations for two months before insemination and had been required to abstain from intercourse during that time. Unfortunately, his foresight does little to alter the plight of the small child whose birth has sparked a nationwide sideshow. t;£>