NEW YORK -- In the upstairs office of author Lois Gould's loft on lower Broadway, people were working the phones Tuesday night, recruiting last-minute additions to a statement of concern over the treatment -- in court and in the press -- of Mary Beth Whitehead, mother of "Baby M." Could a film critic get Carol Burnett to sign? Was Nora Ephron, one of the statement's drafters, getting through to Susan Sontag?
" 'By these standards, we are all unfit mothers,' " an attorney was saying, reading aloud to a potential supporter. The statement, to be distributed at the courthouse in Hackensack, N.J., today when closing arguments begin in the Baby M surrogacy trial, quotes several opinions by mental health experts who found fault with Whitehead's personality and parental skill and recommended that she be denied custody. By Tuesday night the statement had been signed by more than 125 prominent women, including Betty Friedan, Gloria Steinem, Carly Simon and Meryl Streep. (Sontag signed; Burnett could not be reached.)
Downstairs, meanwhile, a television crew was festooning Gould's living room with tungsten lights and trailing cable through her kitchen. Gould, writer Letty Cottin Pogrebin, psychologist Phyllis Chesler and several others organizing what might be called the women's movement's response to the Baby M case were about to be interviewed for an upcoming "MacNeil/Lehrer NewsHour," along with the director of a surrogacy program and a pregnant surrogate mother.
Both projects, the statement and the videotaping, grew out of a meeting ofabout 25 women -- writers, lawyers, health professionals and academics -- that Gould hosted last month as the experts appointed by Baby M's guardian were weighing in with their recommendations. These findings, Gould said, reminded her of the way lawyers once routinely tried to discredit rape victims by delving into their personal lives.
"People said, 'We should do something,' " she recalled this week. " 'You should do something, instead of just reading the papers and having the smoke come out of your ears.' "
The statement was assembledby Gould and Ephron last week. According to organizers circulating it, the list of signers includes attorneys Carol E. Rinzler and the ACLU's Janet Benshoof, New York Review of Books Editor Barbara Epstein, literary agent Lynn Nesbit and writers Grace Paley, Judith Rossner, Margaret Atwood, Gail Sheehy, Elizabeth Hardwick, Susan Cheever, Ellen Willis, Lynn Sharon Schwartz, Sally Quinn and Marilyn French, as well as Gould, Chesler, Pogrebin and Ephron.
Below the "we are all unfit mothers" introduction, the statement lists four of the findings the experts used to support their recommendation that custody of the little girl be granted to William and Elizabeth Stern. (As the whole world must know by now, Whitehead gave birth to Baby M almost a year ago under a surrogacy agreement that would have paid her $10,000, but decided she could not bear to relinquish her to William Stern, the baby's father by artificial insemination.)
The four findings cited ("I could have quoted for 900 pages," said Ephron) include psychologist David Brodzinsky's opinion that Whitehead had trouble "accurately reading her daughter's behavior signals" and "separating her own needs" from the baby's, and social worker Judith Brown Greif's observation that Whitehead "is almost myopic" in her view that being the biological mother "enables her to understand her children better than anyone else."
The statement goes on to quote at length from psychiatrist Marshall Schechter's diagnosis that Whitehead's practice of dyeing her hair demonstrates her narcissism and that her view of herself as a victim is an element of a histrionic personality disorder. The statement also cites Schechter's testimony that Whitehead played patty-cake improperly with her daughter while the expert team was observing her, and should have provided pots and pans instead of large stuffed pandas for the baby's play.
The statement concludes by noting the "increasingly complex questions of custody today -- both in cases involving surrogacy and those involving divorce" and urges legislators and jurists "to recognize that a mother need not be perfect to 'deserve' her child."
"I know that some people who signed it think the baby should go to the Sterns and some think she should go to Mrs. Whitehead and some have no idea," Ephron had said earlier in the week, pointing out that the statement had deliberately been written "broadly" to encompass diverse views and avoid taking sides in the current trial.
The catalyzing factor, she said, had been women's feelings that "anyone could come into our homes and twist our lives into allegations that we were unfit. It gives you the shivers. And it happens all the time ...
"We owe a great debt to Marshall Schechter," Ephron added. "The day he made his comment about hair dye, it converted half my friends."
Though neither the guardian-appointed experts nor attorneys for the Sterns have directly alleged that Whitehead is an unfit mother, her credibility and her family's emotional and financial stability have been questioned during the long trial that began the first week in January. The court's opinion, expected later this month, will consider whether the surrogacy agreement is a legally enforceable contract and which home is in the child's best interests.
Coming at a time when fathers are perceived to be winning custody battles more often, the case has fanned feminists' fears that mothers -- "surrogate" or otherwise -- are at a legal and economic disadvantage. Ironically, the sex-neutral state laws under which fathers can compete with mothers for custody were seen as a feminist victory when they began to take hold in the early '70s.
Still, a number of feminists and women's rights activists -- including some signers of the "unfit mothers" statement -- differ on or are unsure about several legal and ethical issues raised by the trial.
Novelist and critic Marilyn French ("The Women's Room"), for example, attended the February meeting at Gould's home. She later signed the statement despite her feeling that it should have been "much stronger." French had hoped it would reflect her opinion that "the woman who spends nine months in intense emotional interaction with a fetus has the right to say whether she wants that child or not and whether she changes her mind. She has the first choice ..."
But Pogrebin, an author and Ms. magazine editor, said before the "MacNeil/Lehrer" taping that while she found Whitehead's treatment "shameful," she was "not clear about my position on every other aspect of this case. I'm not even sure of my position on surrogacy." In contrast to French, Chesler and others, "I don't want the primacy of biology to triumph," Pogrebin said. "I'm suspicious of anything that uses the 'maternal instinct.' "
Suzanne Sangree, staff attorney for the ACLU's Reproductive Freedom Project, helped circulate the statement and was collating copies during Tuesday's gathering, but did not sign it herself because she thought it implied a "mystification" of biological motherhood. "A lot of feminists involved in custody issues and family law have argued for years against such assumptions" and for fathers' increased role in providing and nurturing, she said. The ACLU has not taken an organizational stand on surrogate births.
Once the cameras started rolling Tuesday evening, the participants seated on sofas and chairs in Gould's now-brilliant living room, "MacNeil/Lehrer" correspondent June Massell asked each of the women what she thought about Baby M's best interests. Who should get custody?
Predictably, both psychologist Betsy Aigen, director of the Surrogate Mother Program Inc. in Manhattan, and the pregnant surrogate she had brought along thought Sara/Melissa Whitehead/Stern belonged with the Sterns. Equally predictably, Chesler, who has organized several press conferences at the courthouse to demand the baby's return to her mother, supported Whitehead.
Of the others, Gould voted for the Whiteheads; attorney Janet Gallagher, describing herself as "strongly influenced" by tape-recorded phone calls in which Whitehead threatened to take her baby daughter's life and her own, said she favored the Sterns. Obstetrician-gynecologist Wendy Chavkin said that while she would have preferred giving custody to Whitehead at the time of birth, by now the child has spent "half her life with both families" and was probably attached to both.
And Pogrebin confessed that she has been unable to answer the custody question to her own satisfaction. "I'm very glad I'm not the judge," she said.