The New Republic
Malcolm Gladwell and Rochelle Sharpe
THERE WILL BE only one winner in the Baby M surrogate motherhood case now being fought in a New Jersey courthouse: a lawyer from Dearborn, Michigan, named Noel P Keane. The founder of the surrogate baby business in the United States, Keane arranged the ill-fated contract between Mary Beth Whitehead, a 29-year-old housewife from Brick Town, New Jersey, and Elizabeth and William Stern, a doctor and a biochemist who have always wanted a child of their own. While mother and father wage a heartrending struggle over their baby girl, Keane is enjoying a booming business. The Baby M case, he says, has made surrogate parenting “more and more known, and more and more acceptable.” Since the trial began, inquiries to his office have quadrupled.
Keane stands to gain even more if the Baby M case prompts state legislatures to pass laws regulating surrogate parenting. The business of matching infertile couples with women willing to bear a child for them is conducted in a legal gray area. Neither permitted nor prohibited by law, surrogate pregnancies are a matter of private contract. Legalization would legitimize Keane’s controversial operation and make the millions of Americans who cannot have a child more comfortable with the idea of paying a woman to have one for them.
But Keane has managed to keep an extraordinarily low profile during the case. He has not yet been called to testify, and it is not likely that he will. During the first two weeks of the trial, while his former clients sobbed on the witness stand and their lawyers heatedly debated the validity of the contract Keane had drafted, he was on vacation in the Virgin Islands. The man who played matchmaker to the Sterns and the Whiteheads and godfather to Baby M feels no need to defend his own role in the dispute. “It’s not my case,” he explains.
In fact, it is his case. Public discussion of the Baby M trial has focused on the ethics of surrogate parenting, overlooking the practices of the man who founded the surrogate business. Mary Beth Whitehead blames Keane for failing to provide her with adequate counseling and support; she has filed suit against him for fraud and negligence. Keane also faces lawsuits from three other disgruntled clients who charge he mishandled their cases. At least ten former clients of Keane’s contacted by Gannett News Service cited fairly serious problems with his program. Their concerns were diverse: one surrogate underwent artificial insemination before any contract had been signed; another was approved despite a history of heart disease; in two othercases, the surrogate mother bore her husband’s child—not the client’s. As one looks over Keane’s record, it is difficult to escape the conclusion that a major reason the Sterns and the Whiteheads are in court today is because of Noel Keane’s business methods.
KEANE GRADUATED from the University of Detroit Law School in 1970, In 1973 he was indicted in an ambulance-chasing scheme in which police officers allegedly directed injured people to his law practice; the charges were later dismissed. In 1976 he was one of the first people in the country to go into the business of arranging surrogate pregnancies. At first the legality of paying surrogate mothers was in question, so Keane found volunteer surrogates and charged childless couples a $3,000 finder’s fee. In 1980-81 Keane says he began arranging for the couples to pay the surrogates. Today Keane and most other surrogate matchmakers charge about $10,000 per case; and the couple typically pays the surrogate another $10,000 plus all of her expenses. In ten years Keane has arranged some 140 surrogate births, more than twice as many as anyone else.
Keane’s methods for signing up surrogate mothers are more casual than those of other surrogacy operations. Mary Beth Whitehead says she sent her picture and application form to Keane’s on a Friday and was accepted the following Monday. At the Center for Surrogate Parenting in Beverly Hills, applicants go through four months of psychological tests and group counseling before they are accepted. Bill Handel, who runs the center, claims that he rejects 19 out of 20 applicants. Whitehead’s application wouldn’t even have been considered by The National Center for Surrogate Parenting in Chevy Chase, Maryland. Harriet Blankfeld, who runs the center, requires that potential surrogates have at least a high school diploma—“not to demonstrate their intelligence, but to prove they have made a commitment and kept it,” Blankfeld says. Whitehead was a high school dropout.
A 25-year-old woman from Michigan who is suing Keane under the pseudonym Jane Doe says that when she first came to his office, she wasn’t convinced she wanted to be a surrogate mother. She says Keane took her to a room where a childless couple was sitting. For an hour and a half, Doe talked with the couple, while holding her six-month-old son. “They looked like they hadn’t eaten in six months and my baby was a hot fudge sundae,” Doe says. She put aside her own doubts about her physical and mental readiness and, after several phone calls from the childless couple, decided to become a surrogate.
Keane doesn’t bother to run any psychological or medical tests on his surrogates until after they have been hired by the infertile couples. With the deal already arranged, Keane counts on unqualified applicants—like Jane Doe—to disqualify themselves. A review of Jane Doe’s medical history would have shown that she recently had an operation for cervical cancer. After the operation, Doe says her doctors warned her not to get pregnant for at least two years. At the age of 25, she had also had five miscarriages out of nine previous pregnancies. What did the doctor working for Keane say about that? According to Doe: “Good, you’re really fertile.”
Doe endured what can only be described as a harrowing pregnancy. When artificial insemination was scheduled to begin, Doe wasn’t fertile because she was still nursing her son. She says Keane’s doctors gave her drugs to induce ovulation. Once pregnant, Doe says she had to go to the hospital five times and spend weeks at a time on her back. Twenty-two weeks after conception, she delivered a baby that died one-and-a-half hours after birth. Doe never received the full $10,000 payment for delivering a live baby. Keane initially offered her $1,000—the standard amount for a miscarriage, which she refused. After seven months of haggling, Keane paid her $7,000.
Jane Doe obviously lacks good judgment, and thus can’t blame Keane entirely for her predicament. But a scrupulous screening process might have protected her from herself. “That man should not be in business,” Doe says, “As a result of his program, a baby died. He influenced me to do something I should not have done.”
When reporters ask Keane about the case, he becomes irate, offering them her real name and phone number despite her desire for privacy. Although he says he does not remember the details of the case, Keane says Doe’s charges of coercion are false. He has filed a libel suit against her and her lawyer.
Keane denies that he accepts just anyone who fills out one of his surrogate applications. If the potential surrogate appears to be overweight, for example, he says he might not take her. But he admits that he doesn’t know what percentage of surrogate applicants his business rejects. “I don’t see a lot of [applicants] myself anymore,” he says. Who does? “The secretarial staff,” he says.
KEANE’S NEXT STEP is to take all of the application forms with the pictures affixed and put them in a big binder. When childless couples come into his office, they flip through his book until they find someone they like. Bill Handel likens Keane’s operation to a “meat market.” “You wouldn’t believe how couples select women,” explains Nancy Reame, a nursing professor at the University of Michigan who volunteered for Keane from 1981 to 1985. “They look at what she looks like and how cute her kids are. They’re very vulnerable, and they don’t have the sophistication to make the decision.” Most other surrogate matchmakers, such as Blankfeld and Handel, select the mothers for their clients, precisely to avoid the kind of emotional coercion that results when a potential surrogate meets a couple desperate for a child.
And if there is little medical screening in Keane’s operation, there is hardly any psychological testing. Philip Parker, the Detroit psychiatrist who does most of Keane’s testing, processes each applicant in a matter of hours, usually for a flat fee of $250. In more than 500 examinations, Parker has rejected exactly one potential surrogate. “I have a moral objection to screening out people,” Parker says. He explains that he tries to give potential surrogates a realistic picture of the difficulties involved. But he adds that he sees himself as presiding over a self-selection process, in which the potential surrogates decide if they want to go ahead. “Even if I did feel they would have trouble, I wouldn’t screen them out,” Parker says. “My job is to warn couples and others that this is a high-risk person.” But is anyone warned? Some of Keane’s former clients say they were never shown their surrogate’s psychological report.
Elizabeth Stern says that she asked to see Whitehead’s entire file, and the psychological report wasn’t there. The report is critical to the Baby M case because Keane’s New York psychologist, Joan Einwohner, tested Whitehead and warned that “she expects to have strong feelings about giving up the baby at the end.” Later in the evaluation, Einwohner said that Whitehead should be questioned further to determine “whether she will be able to relinquish the child at the end. . . . She may have more needs to have another child than she is admitting.” Stern now says that if she had seen the report, she would have asked for more testing and might not have hired Whitehead.
KEANE’S PROGRAM provides surrogates with little in the way of counseling and support. Two of the lawsuits against Keane charge that he does not do enough to insure that surrogates know to abstain from sex with their husbands before and after the artificial insemination process. Judy Stiver, a surrogate from Lansing, Michigan, bore the child of her husband instead of the client. It’s unclear whether anyone would have even bothered to test the baby’s paternity—Keane doesn’t require it—if the infant hadn’t been deformed. Stiver filed suit, claiming that the deformity was the result of a herpes-related virus transmitted to her by the donor’s semen. Keane disputes this, but acknowledges that Stiver was inseminated with sperm that had not been tested for sexually transmitted diseases.
Once the surrogate is pregnant, most surrogacy centers offer regular counseling to prepare the mother for giving up the child. Blankfeld says such sessions could have helped Whitehead overcome her bonding with Baby M. But Whitehead says she was left to fend for herself throughout her pregnancy. Keane’s center doesn’t even have a full-time psychologist on staff. To make things worse, no one from Keane’s agency was at the hospital with Whitehead when she delivered the child. Keane then allowed Whitehead to take the baby home, something that other agencies forbid. By the time the Sterns came around to pick up Baby M, Whitehead had already begun nursing her child.
Keane views himself as an avuncular matchmaker, and not as the administrator of the long, complicated, and delicate process of arranging a successful surrogacy. In his desire to help infertile couples, he overlooks the enormous responsibilities he has taken on. When problems arise, he is quick to point out that the doctors and psychiatrists his program relies on are independent and responsible. He fails to see, though, that he is the one person who is in charge of all of their work. “I’m a lawyer, not a doctor,” he says repeatedly.
He says he feels no remorse for the problems of Mary Beth Whitehead, the Sterns, Judy Stiver, and Jane Doe. “If this wasn’t such an emotional issue, we wouldn’t go to such pains to weed out potential problems.” Testing was “done and more than done,” he claims. Keane says of his critics: “They’re just a little jealous. I get the notoriety. I get more volume. I’m smarter.” And: “I’m a big boy, I understand the issues involved.”
Keane continues to prosper. Some lawyers thought the Stiver case would destroy him. Instead it landed him a spot on “Donahue.” The Baby M case hasn’t hurt him either. He recently hired a Detroit public relations firm to coordinate his interviews and public appearances. His flack now says that Keane is available to discuss the “legal and medical ethical issues” involved in surrogate motherhood. He has a lot of explaining to do.
MALCOLM GLADWELL AND ROCHELLE SHARPE