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76 Geo. L. J. 1793 (1987-1988)
Some Reflections on the Baby M Case

handle is hein.journals/glj76 and id is 1815 raw text is: Some Reflections on the Baby M Case PETER H. SCHUCK* I come to the Baby M case1 with little knowledge of family law. The twists and turns of its doctrines, the fine distinctions developed by those who must solve its dauntingly difficult problems, and its intricate technical apparatus are all matters about which I possess no expertise. Still, the untutored, common sense view may be valuable when the experts are sharply divided, as they are here. Even if family lawyers had forged a consensus about the Baby M case and its larger implications, the public might well look elsewhere for solutions. Disputes implicating new technologies or social arrangements mark the frontier, the cutting edge, of legal and social change. This suggests that we are operating in a relatively open-ended normative environment where deeply held values clash with new social facts, and legal uncertainty and pop- ular anxiety are endemic. In this new ball game (to use another cliche), the old rules seem anachronistic and everything is up for grabs. Even gener- alists may have something to contribute. I shall say little about the legal doctrines applicable to the Baby M case. It is, of course, a custody dispute seeking to resolve the conflicting claims of idiosyncratic, all-too-human individuals. Everyone might have been better served had the New Jersey courts confined their pronouncements to the cus- tody issue, but judges too are human. They succumbed to an understandable temptation to reach out and explore the case's fascinating social meaning, a weakness for which we colloquy participants, for whom discursiveness is a sacred vocation, should be grateful. In this spirit, I shall make three principal arguments. In Part I, I maintain that surrogacy is not intrinsically immoral; indeed, one can properly view it as a praiseworthy act of generosity and commitment to the creation of a wanted life. In Part II, I make a rough, quite conservative assessment of surrogacy's consequences and conclude that it will generate very large, widely distributed private and social benefits. Unless surrogacy's risks are comparable to these benefits, I argue, the law should uphold surrogacy con- * Simeon E. Baldwin Professor of Law, Yale Law School. B.A. 1962, Cornell University; J.D. 1965, M.A. 1969, Harvard University; LL.M. 1966, New York University. I wish to acknowledge the comments of Robert Burt, Joe Goldstein, Henry Hansmann, Mike Seidman, and John Simon on earlier drafts. Grace W. Tsuang, Yale Law School Class of 1989, provided helpful research assistance. 1. In re Baby M, 217 N.J. Super. 313, 525 A.2d 1128, 1157-58 (Ch. Div. 1987). The essays in this colloquy refer to the superior court's decision in the case as Baby M, I. The New Jersey Supreme Court's decision, 109 N.J. 396, 537 A.2d 1227 (1988), is referred to as Baby M, IL 1793

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