Surrogate motherhood presents an enormous challenge for feminists. During the course of the Baby M trial, the New Jersey chapter of the National Organization of Women met and could not reach consensus on the issue. The feelings ranged the gamut, the head of the chapter, Linda Bowker, told the New York Time. We did feel that it should not be made illegal, because we don't want to turn women into criminals. But other than that, what you may feel about the Baby M case may not be what you feel about another.

We do believe that women ought to control their own bodies, and we don't want to play big brother or big sister and tell them what to do, Ms. Bowker continued. But on the other hand, we don't want to see the day when women are turned into breeding machines.

More than 30 years have passed since the phrase informed consent was first uttered in a judicial opinion. Jay Katz's own ground-breaking work on informed consent is now more than 10 years old, and the insights of The Silent World of Doctor and Patient are so constantly fresh that it is easy to forget it too was not just recently published. While trying to develop some new thoughts about informed consent for this essay—a task made virtually impossible by Jay's work—I had reviewed an article by Professor Joseph Goldstein, one of Jay's frequent collaborators. Goldstein recounted discovering an index card he had written almost 30 years earlier (ironically for me, the year I was born) containing some notes about Harold Lasswell's work. Not only is law a seamless web, it is a timeless one.

Jay's work on informed consent is pervaded by a timeless theme that I wish to address here: how the dignity of the individual, the shining beacon of the idea of informed consent, is sorely neglected in the law of informed consent.

Surrogacy is not an easy issue for feminists. On one hand, it raises concerns about exploitation; one is faced with images of poor women being enlisted to produce babies for wealthy men and their wives, either because of fertility problems or because pregnancy is simply too inconvenient for those women who can afford to hire someone to do it for them. On the other hand, there is the specter of the state passing laws, once again, that tell women what they can and cannot do with their bodies. If we believe, as many of us do, that the state has no right to prohibit a woman from selling the sexual use of her body, doesn't the also have the right to sell the reproductive use? And if many of us, doctors, lawyers, law professors, have been willing to employ other women, less privileged women, to take care of our children after they are born, what is so different in moving the date back a bit and hiring them to carry our children before birth as well?

Assuming that surrogacy is not legally prohibited, does that mean that surrogacy contracts must be enforced? If we find something abhorrent in the idea of babies being taken from their mothers arms because, after all, a contract is a contract, we might argue that the contracts can be legal but unenforceable.

Surrogacy is not an easy issue for feminists. On one hand, it raises concerns about exploitation; one is faced with images of poor women being enlisted to produce babies for wealthy men and their wives, either because of fertility problems or because pregnancy is simply too inconvenient for those women who can afford to hire someone to do it for them. On the other hand, there is the specter of the state passing laws, once again, that tell women what they can and cannot do with their bodies. If we believe, as many of us do, that the state has no right to prohibit a woman from selling the sexual use of her body, doesn't the also have the right to sell the reproductive use? And if many of us, doctors, lawyers, law professors, have been willing to employ other women, less privileged women, to take care of our children after they are born, what is so different in moving the date back a bit and hiring them to carry our children before birth as well?

Assuming that surrogacy is not legally prohibited, does that mean that surrogacy contracts must be enforced? If we find something abhorrent in the idea of babies being taken from their mothers arms because, after all, a contract is a contract, we might argue that the contracts can be legal but unenforceable.

No matter what one's position, Baby M is a difficult case. Once a child of contract parenthood has come into being, sorting out the competing claims that changed intentions produce is inevitably a troubling process. Even when taken in the abstract, surrogacy arrangements raise disturbing questions: Can we expand the available options for forming families without risking sex, race, and class exploitation? Can we address the pain experienced by those unable to conceive and bear children without commodifying human life? Whatever our views of surrogacy, we cannot hope to resolve the dilemmas it poses without acknowledging and seeking to address the pain of infertility.

Given what we know about infertility, is commercial surrogacy—however troublesome—an appropriate response? Even with only partial information before us, the answer would seem to be a fairly clear no. Surrogacy is at best an after-the-fact accommodation to the problem of infertility, available only to those with substantial financial resources.

For a symposium in honor of Jay Katz, my teacher, advisor, friend, and ever-present source of help, it is an honor to be asked to write about disclosure and consent in pediatrics. From the time he began to think, write and teach about family law, Jay has advocated taking children and adolescents seriously. In our society such concern for their legal rights is unfortunately rare; the situation would be much worse were it not for Jay's writings and for his former students who have gone on to work for and with children. When he began to work in the areas of human subjects research and then informed consent, his concern for the rights of young people permeated this work as well.

By the beginning of 1988, nearly six hundred babies had been born through surrogate mothering arrangements. Although there have been a number of lawsuits concerning custody or challenging adoption laws that appear to prohibit payments to surrogates, the majority of surrogacy arrangements proceed without judicial involvement. Nevertheless, surrogate mothering has engendered considerable activity in state legislatures, as well as two bills in Congress to ban the practice (H.R.2433 and H.R. 3264) and hearings by the House Committee on Energy and Commerce and the Subcommittee on Transportation, Tourism, and Hazardous Wastes. Most recently, the Congressional Office of Technology Assessment (OTA) released a report, Infertility: Medical and Social Choices. That report included the results of a survey of surrogate-mother matching services active in the United States in late 1987.

Any lawyer in a gathering of health professionals, especially physicians, can expect to be bombarded by complaints about the law of professional liability and the high cost of malpractice insurance. It is well-established, of course, that the number of medical malpractice claims significantly increased in the 1960s, precipitating the first insurance crisis in the early 1970s, and leading to a wave of legislative reforms. Now, after a quiescent period, the number of claims filed and the cost of insurance are rising again, and the legislatures have responded with a new wave of reforms.

According to the American Medical Association's socio-economic monitoring system, the number of claims filed against physicians increased from an average annual rate of 3.2 per 100 physicians before 1981 to 8.2 from 1981-1984 and to 10.1 in 1985. The annual cost of insurance premiums, which had increased only by 4 percent per year from 1976 to 1982, increased by an annual average of 21.9 percent between 1983 and 1985. The cost of insurance represents about 4 percent of the gross revenues of the average self-employed physician.

The Baby M case has forced us to take sides in the public debate over surrogate motherhood. Last year, advocates of this form of noncoital reproduction praised the New Jersey trial court for supporting the freedom to contract for such womb renting services, while critics warned that enforcement of such surrogacy contracts would condone the sale of babies and the exploitation of women as baby factories. In its unanimous opinion, the New Jersey Supreme Court sided with the critics. Based on New Jersey's adoption law and public policy, the court refused to enforce the contract that provided money to a surrogate mother in return for her agreeing to be artificially inseminated with the Semen of another woman's husband, to conceive a child, to carry it to term, and to relinquish her parental rights and surrender her child to the natural father and his wife, regardless of the child's best interests.

I feel it a great honor to be invited to participate in the development of this festschrift for my old and dear friend, Jay Katz. We have shared the interdisciplinary trenches from the very beginning of our respective careers. We have struggled with some of the same problems; we have sometimes joined in teaching projects; there are several areas of law that we have both explored; and on one occasion we have even opposed each other as expert witnesses. Throughout the duration of these thirty-three years I have followed Jay's work closely, fully agreed with most of his principles, and often felt a twinge of envy that I had not written some of the papers which he did. Likewise, I have always felt greatly supported by Jay in my efforts, even though we have had minor disagreements from time to time and I shall discuss one of these later on. I seriously doubt that Jay's most recent works will turn out to be truly a valedictory. I anticipate the pleasure of continuing to read stimulating pieces by him in future years.

It has been estimated that in the United States some twenty thousand babies are born through artificial insemination by donor (AID) each year. With the startling new advances in reproductive technology, or what has been termed collaborative conception, it is now possible for a child to have up to five parents: an egg donor, a sperm donor, a surrogate mother who gestates the fetus, and the couple who actually raises the child. What we now face, then—not only in considering the New Jersey Supreme Court's decision In re Baby M but in the whole area of the new reproductive biology—is, in the words of a popular columnist, a mess.

Interestingly, the enormity of this complex, multiparent scenario—which Kerns to be on its way to becoming a reality with Baby M and its anticipated progeny—was totally lost on Mary Beth Whitchead. I just can't see how four peeple loving [Baby M], five people loving her, can hurt her, she said recently.

For ten years, starting in 1958, Jay Katz and I were each other's teachers and each other's students in a teaching and writing collaboration at the Yale Law School. What was the nature of the collaborative relationship that Jay the physician-psychiatrist-psychoanalyst-in-training and I, trained in law and political science, expected to establish? Were we making informed choices when we entered into, carried out and ended our collaboration? Did we recome and acknowledge to ourselves and to each other why we were doing what we did? In accord with Jay's prescriptions in The Silent World of Doctor and Patient—a monumental contribution to our thinking about another collaboration—did we seek to help each other understand the decisions we had reached?

A word, first, about the kind of collaboration described in this essay. In a fundamental sense all intellectual and scholarly work—even work in the creative arts—is collaborative. All who engage in these activities build on or respond to the work of others.

The doctrine of informed consent, introduced by the courts in 1957, is but one of many legally imposed duties to disclose to arise over the last several decades. In myriad areas of everyday life, including medical decision-making, the law has come to require that a person or entity with presumptively superior information as to risks, contents, or consequences take affirmative steps to disclose that information at the time another individual is faced with a decision for which it might prove pertinent.

Such disclosure requirements underscore the values of individual liberty and self-determination that are at the core of our rights-based legal system. Rather than directly and more paternalistically regulating citizen behavior by, for example, simply prohibiting a given riskcreating activity, the State takes the less intrusive step of mandating that the individual be provided information that might affect her behavior.

In commenting on the New Jersey Supreme Court's decision in the Baby M case, I will focus on the result of the court's decision and what it implies about the limits of judicial power, not on the court's opinion. The reason is that, excepting the court's basic premises, I can find little in the opinion to criticize. My difficulty, instead, is with the premises from which the court approached the case, and what they imply about the capacity of courts to construct legal doctrine on the basis of largely, if not wholly, unexplored social and cultural values. The result reached in the Baby M caw-that Mr. Stem is Baby M's legal father and Ms. Whitehead her legal mother—is, in my judgment, surely the worst result possible. That it was indisputably the logical, reasoned, and straight forward result of existing legal concepts of parenthood, adoption, baby-selling, and the like, as the New Jersey court so well opined, is hardly reassuring.

I think it is fair to say that there have been two overriding needs of the health care system in the United States for the past couple of decades. One of them is to provide an adequate minimal level of care for all, especially for the underinsured and for those who could be faced by catastrophic health care costs. That need points to an expansion of health care expenditures and to the creation of new programs and strategies. The second need is that of finding a permanent and effective way of controlling the constant escalation of health care costs, and of the proportion of health care costs in our overall economy. That need points to restraint and limitations, not constant expansion.

We are left, then, with two apparently contradiaory needs, each pointing to a major problem, but each standing, it would seem, directly in the path of the other.

Over the years, Jay Katz has consistently emphasized the need to consider both the psychodynamic factors and more general societal forces that play a role in shaping the way individuals and society respond to patients. In their 1975 book on catastrophic diseases, Katz and Capron addressed the central question of who should have the authority to make the decisions affecting those afflicted with catastrophic diseases: a theme that appears repeatedly in the insightful writing of Katz. In The Silent World of Doctor and Patient he presents a compelling case that patients’ deasion-making is an idea alien to the ethos of medicine. He has argued frequently for the importance of patient autonomy and has showed us how important conscious, as well as unconscious, and rational, as well as irrational forces are in shaping our actions.

In his work, Dr. Katz writes primarily about how physicians and patients should interact to arrive at decisions about research and treatment. These issues are certainly salient when considering the way acquired immunodeficiency syndrome (AIDS) should be treated and how we should evaluate new therapies.