The MacNeil/Lehrer NewsHour

Intro JIM LEHRER: Good evening. Leading the news this Tuesday, the natural father was awarded custody of Baby M. A U. S. military advisor was killed in El Salvador. A third U. S. Marine was implicated in the Moscow Embassy spy affair, and the House voted to override President Reagana's veto of the highway bill. We'll have the details in our News Summary in a moment. Robin?

ROBERT MacNEIL: After the News Summary, our major focus is the Baby M case. We examine today's decision and its consequences for surrogate motherhood. Special business corresondent, Paul Solman, looks at the nature of the U. S. /Japanese trade relationship. We have a newsmaker interview with French Prime Minister, Jacques Chirac.News Summary MacNEIL: The historic Baby M case ended today, with a New Jersey judge deciding against Mary Beth Whitehead, the baby's surrogate mother, and upholding her contract with the father. Judge Harry Sorkow terminated her parental rights, and awarded custody of the year old baby to its biological father, William Stern, and his wife, Elizabeth, who is infertile. Mrs. Whitehead signed a $10,000 contract to bear the Stern's baby, after artificial insemination with Mr. Stern's sperm. After the birth of the baby, Mrs. Whitehead changed her mind and decided to keep the child. The Sterns held her to the contract, provoking the legal battle, regarded as a landmark case which could determine the future of surrogate motherhood. After the decision was announced, Mrs. Whitehead's attorney commented on the judge's ruling.

HAROLD CASSIDY, Attorney for Mrs. Whitehead: I think he avoided the real issues in the case. I think he stayed away from talking about the harm to the siblings. He, in fact, barred testimony concerning it. He stayed away from the real issue of exploitation of the mother under these circumstances, the harm to the mother, and very surprisingly, he even stayed away from talking about the impact that this ruling will have upon future children of surrogacy. We know that they're going to have severe problems with self esteem.

MacNEIL: Mrs. Whitehead, who plans to appeal, awaited today's decision at her home. After the ruling, a tearful Mrs. Stern said that she has empathy for Mrs. Whitehead, adding that despite all the bad feelings that have gone on on both sides, '' -- she gave us a beautiful daughter. '' Jim? LEHRER: A U. S. military sergeant was killed in a rebel attack in El Salvador. He became the first U. S. military advisor to die in that Central American country. U. S. officials withheld his name pending notification of next of kin. The sergeant died in an attack last night by leftist guerillas on a major Salvadoran army base. Reports said 43 Salvadoran soldiers and seven rebels were also killed. Defense Department spokesman, Robert Sims, described what happened.

ROBERT SIMS, Defense Department spokesman: An estimated 800 leftist rebels attached a major military base in Chalatenango Province early today, and the American military trainer who was there -- one of a two man team -- was killed during that attack, apparently a middle of the night attack without warning. And I am not sure that our individual had any opportunity to defend himself whatsoever. LEHRER: A third Marine guard has been arrested in connection with the spy affair at the U. S. Embassy in Moscow. The Marine Corps said that Staff Sergeant Robert Stanley Stufflebeam of Bloomington, Illinois, is being held on suspicion of failing to report contacts with Soviet women in Moscow. He served as a guard at the Embassy at the same time as Sergeant Clayton Lonetree and Corporal Arnold Bracy, who have been charged with espionage. The two are accused of letting Soviet agents into the embassy, among other things. MacNEIL: The House of Representatives today voted to override President Reagan's veto of the $88 billion highway and mass transit bill. The vote was 350 to 73, well above the two thirds needed for the override. Many House Republicans, including their leader, Bob Michael of Illinois, decided that the interest of their districts came before the President's political needs. First term Congressman Arthur Ravenel of South Carolina was one of them.

Rep. ARTHUR RAVENEL, (R) SC: Down where I come from in South Carolina, there's a little island town called the Isle of Palms. For ten years, my predecessor and the congressman before him have been trying to get a demonstration project made to serve this little island. You can bet your spring petunias that this congressman is going to vote to override and save that $15,230,000. President Reagan, he ain't gonna be running in 1988, but I am. MacNEIL: The bill now goes to the Senate, and White House Chief of Staff Howard Baker was there today to do some lobbying.

HOWARD BAKER, White House Chief of Staff: The President's not picking a fight with anybody. He's very anxious to make it clear that he has firm resolution and determination to hold the line on spending. The President has a lot invested in this. You know, in effect, he's drawn a line in the sand. LEHRER: The Prime Minister of France paid a call on the President of the United States today. Jacques Chirac and President Reagan both spoke at the White House this morning of the general need for their countries to work together in resolving mutual problems, and they signed a specific agreement to share patents and information on AIDS disease. The agreement settles a legal dispute over an AIDS screening test.

President RONALDREAGAN: An agreement has been reached between the Department of Health and Human Services and the Institute Pasteur, which resolves the differences between the two over the patent rights for the AIDS antibody test kit. The two medical groups will share the patent, and each party will contribute 80% of the royalties received to establish and support an international AIDS research foundation.

JACQUES CHIRAC, Prime er of France:Minist We in the United States and France have very, very good and efficient scientists. And they will now work together and also create a foundation to fight against AIDS. LEHRER: In Lebanon today, kidnappers again made threats against four professors kidnapped on January 24. A handwritten note to a Beirut newspaper said the three Americans and one Indian would be punished if the United States and Israel did not meet the kidnappers' demand to exchange the four men for 400 Arabs being held in Israel. MacNEIL: In economic news, the U. S. dollar suffered another drop in value against the Japanese yen, creating yet another new record low of 145. 65 yen to the dollar. The fall today was . 55 yen, after yesterday's drop of 2. 80 yen. At home, there was better news. The government index of leading indicators, its main gauge of future economic activity, rose . 7% in February, after falling in January. And new orders for factory goods were up 4. 3%, the largest one month gain since last September. On Wall Streets, where prices fell sharply yesterday, the Dow Jones average rose 26 points to close at 2304. 69. And late today, Citibank the nation's largest, raised its prime rate to 7 3/4% from 7 1/2%. LEHRER: Margaret Thatcher said today her trip to the Soviet Union was the most fascinating and invigorating foreign visit since she became Prime Minister of Britain. She spoke at a Moscow news conference on the next to last day of her 5 day trip. She told reporters she welcomes the move to liberalize Soviet society, but said much more needs to be done. Before the news conference, she went to see Soviet dissident leader, Andrei Sakharov, and his wife, Elena Bonner. Robin? LEHRER: That's our Summary of the News. Ahead on the News Hour, the fallout from the Baby M decision, U. S. /Japanese trade, and an interview with the French Prime Minister. Setting a Precedent Baby M MacNEIL: First tonight, a look at the landmark decision in the Baby M case. As we reported earlier, a New Jersey judge today awarded custody of Baby M, now known as ''Melissa,'' to her father, William Stern, and his wife, Elizabeth. The judge said that the contracts the Sterns had made with a surrogate parent was valid and enforceable, and he strongly condemned the surrogate mother, Mary Beth Whitehead, for her conduct during the trial, writing that her ''inability to tell the truth establishes a tarnished environment for raising the child. '' He also denied the Whiteheads any visitation rights. After the decision, Harold Cassidy, Attorney for the Whiteheads, talked with reporters.

REPORTER: Were you surprised that she didn't get any custody or visitation? HAROLD CASSIDY, Attorney: No. Not with this particular trial level. REPORTER: So you think you're gonna have a better chance at another level. Mr. CASSIDY: There's no question about it. I think that we'll win on the appeal. I think that the court was completely -- was devoid of addressing what the public policy of the State of New Jersey should be. I think that the public policy considerations ultimately are going to determine this case, not the traditional concepts of custody, which is -- REPORTER: What about this judge -- do you think he was unfair? Mr. CASSIDY: I think -- I sensed that much of the proceeding that we had this level, and much -- and the judge's opinion was a justification of the May 5th order, where the judge took the baby away from the baby's mother, without any findings of fact, without any hearing, without any notice to the mother. And I think that we heard a little bit of that today.on REPORTER: [can't hear] Mr. CASSIDY: Oh, I'm sure that he did. But when you listen to his opinion, I think the one thing I'm disappointed in is in some ways it was very unimaginative. It was the use of traditional concepts that he was drawing upon, traditional concepts that deal with an issue that I think is novel. I think that he avoided the real issues in the case. I think he stayed away from talking about the harm to the siblings. He, in fact, barred testimony concerning it. He stayed away from the real issue of exploitation of the mother under these circumstances, the harm to the mother, and very surprisingly, he even stayed away from talking about the impact that this ruling will have on future children of surrogacy. We know that they are going to have severe problems with self esteem. And in many ways, if this decision were allowed to stand in Appellate Court, it will be a sad day for American jurisprudence, and certainly the state of New Jersey. Because it would mark the shift from adoption laws and laws governing children away from the focus of the children themselves and children who need parents, to the desires and what's best for people, parents, who want children. And I think that central to what should have been the inquiry in this court, was what is the likely harm to children in the future from these arrangements. No mention of it whatsoever. MacNEIL: Now we see how today's decision may affect the issue of surrogate parency. We talk to Noel Keane, founder of the New York based Infertility Center, which brought together the Sterns and the Whiteheads. He says he has overseen 155 such surrogacy agreements to date. Barbara Katz Rothman is a critic of surrogate agreements. She is a professor of sociology at New York City University, and author of a number of books on mothering. Her most recent is called, A Tentative Pregnancy. Mr. Keane, you just heard Mrs. Whitehead's lawyer say this was a sad day for jurisprudence. What do you think? NOEL KEANE, Infertility Center: Well, obviously I don't agree with him. I suspect that Mr. Cassidy, after many months of fighting that case, feels down as a result of the decision. I look at it just the opposite. The infertile couple now has the ability to look forward to their child being born and in the event something occurs, such as a withholding, that the courts will step in and probably force the agreement. I would really like to see come out of this decision -- is the legislators to speak to the issues themselves. MacNEIL: In the individual states. Mr. KEANE: That's correct. MacNEIL: Do you have any confidence with appeals threatened by Mrs. Whitehead, or the report that she is going to appeal, that this decision will stick? Mr. KEANE: We have two issues that they obviously decided on. One is the contract, and the second one is custody. The contract one is decided on legal issues, and if either were to be attacked, that might be the one that you might be concerned about. The issue on custody, though, is generally decided on a factual determination that a judge makes after hearing testimony in a courtroom. And I think they're going to be hardpressed to find any reason to overturn the custodial rights that were granted to the Sterns over the Whiteheads. MacNEIL: Dr. Rothman, how do you see this? A sad day for jurisprudence? BARBARA KATZ ROTHMAN, Sociologist: It's a sad day for jurisprudence, it's a sad day for mothers, it's a sad day. I think we now have the notion that a woman can be pregnant with a baby, but it's not hers. That she is not the mother of the baby she bears, even if she wants to be. That adoption -- the notion that a woman can give up a baby -- has shifted to the notion that you can order a baby from a babymaker, and that a woman is not necessarily the mother, but simply the babymaker, and when you're done with the babymaker, you treat her like you would treat the upholsterer who did your couch. You love the couch, you talk about what a beautiful couch he gave you, but you don't want to see the maker around any more. That's what we're hearing here. MacNEIL: The judge today said that just as in law man has a right to sell his sperm, a woman has the right to dispose of her child. And make -- Ms. ROTHMAN: That might be okay, if what we were saying was women have something very precious, which are babies. We want to talk about baby sales, which we'll say the woman has that thing which is precious, which is the baby. And maybe we want to move to baby sales. This is never a solution for infertility. It's only a solution for rich people's infertility. So, if we move to a baby sales notion, I'm not really comfortable with it, but it would recognize that the baby is a thing of value. What we're saying here is the thing of value is the sperm, and women grow precious sperm into babies for men, so that the man essentialy hires a surrogate wife. And instead of Mrs. John Smith bearing John Smith, Jr. , a hired Mrs. John Smith bears John Smith, Jr. But the precious thing that we're seeing is the sperm. It's different -- if we want to say the comparable thing to selling sperm is selling eggs, the notion that women can sell their genetic materials, that's fine. What we're talking about here is the woman is not selling the baby. We're saying she never was the mother of the baby. It grew in her body, like it grew in the spare back rented bedroom. MacNEIL: How do you answer that, Mr. Keane? Mr. KEANE: Well, I really think that we have to look at why this child was conceived in the first place. But for the agreement of the Sterns wanting a child, we wouldn't have had Baby M at all. And I think that that's a major difference between what Barbara is suggesting -- I didn't interrupt you. MacNEIL: Let him continue -- Mr. KEANE: In the adoption cases where a child is given up because the circumstances dictate that she can't keep the baby, she has to make the decision to give it up for some reason. This child that we're talking about with the Sterns and all these other surrogate born children, are being conceived after an agreement has been reached, after a decision has been made by a woman, who has the capacity to carry a child, but doesn't want it. It is not conceived through an act of love with her husband or boyfriend. This is an artificially inseminated semen into this woman, for the sole purpose of giving this infertile couple their child -- from the beginning. And the judge simply said, ''that's what they agreed to, and I'm gonna enforce it. '' MacNEIL: Are you saying that a biological mother, like Mrs. Whitehead, cannot be held, or should not be held to honor a contract she has voluntarily signed like this, because the emotional state that surrounds actually having a child yourself justifies her in changing her mind. Ms. ROTHMAN: What I'm saying is that up to this point we've said that birth mothers cannot give up their children until they are born children. That if a woman promises a baby to an adoptive couple and then changes her mind -- however much their heart is broken -- it is still her baby. And that's very -- MacNEIL: That's under adoption laws. Ms. ROTHMAN: Right. MacNEIL: And is that generally recognized throughout all the states? Ms. ROTHMAN: Yes. You cannot -- including New Jersey. You cannot sign away your parental rights before the birth of the child. I am saying that the adoption laws need to hold here, too. That these women are also birth mothers of the babies that they bear. And what we're saying with this contract notion is that even if the woman discovered something terribly abhorrent about the father and mother, and felt that this would be a dangerous place to put her baby, still they ordered it, it's their baby, it's gone. No matter what happens, it's their baby, they ordered it, it's gone. It does not give her rights as the mother of the baby she bears. It's a dangerous precendent to go back to thinking of women as the incubators for somebody else's child. MacNEIL: How do you -- this is a departure from standard procedure in adoption law.

Mr. KEANE: It is. Greatly. It's a different ballgame. MacNEIL: And you are -- obviously you have an interest in creating a new law and precedence in favor of these kinds of contracts and making them valid and enforceable.

Mr. KEANE: That's correct, and I think that we can only relate it to how we handle an infertile man. That if somebody like me gives semen to an infertile man for use to be artificially inseminated into his wife, I have no rights to that child. And that person who allowed his wife to be inseminated with the donor's semen becomes the father. It completely severs any rights that I might ask for later on. It's pretty much analagous to what we're talking about with an infertile wife, and using a surrogate. That the child's not there. The agreement is to give them a child, the infertile couple. Certainly some people make a decision that it doesn't stand up. Ms. ROTHMAN: Transferred genetic material would be comparable. Women have extra eggs removed in invitro fertilization. If they donate those eggs and they grow in another woman's body, then the mother is the woman in whose body they grew. MacNEIL: We've been arguing this philosophically up until now. What about the practical thing. You obviously think that this turns -- I guess you think -- this turns a green light on for the business that you're in. Which is, finding surrogate mothers, for couples who want to have babies that way, and you've done -- is 155 the right figure? Mr. KEANE: The correct figure for the births, and another 30 on the way, and another 150 in the process. MacNEIL: Does this give you a green light? Mr. KEANE: It does somewhat. Although that doesn't mean that some other judge may rule differently. Until you get the legislation that each state will act upon you never really know -- as in the case with Judge Sorkow. He used what he thought was correct, but that's not binding in Michigan, or New York, or any other state. MacNEIL: Could you tell us briefly, how you arrive at these contracts, and what kind of warnings or tests are given to the surrogate mothers to ascertain that they really will be willing to give up their child in the end. And what you promise the parents -- and has that been changed by the publicity around this case? Mr. KEANE: Well, it has not. We haven't changed anything with the publicity of this case. But just to give you an idea as to what was done with Mary Beth Whitehead, it would be psychological examination done by Dr. Einwerner. She -- first her interview, a Minnesota multi facet personality inventory, and Hammond's quick test, figure drawing, (unintelligible), and besides the interview -- besides talking with MSWs on staff -- MacNEIL: What are MSWs? Mr. KEANE: Master of Social Work -- social workers on staff. Also, it should be understood that Mary Beth Whitehead was a surrogate for another couple prior to the Sterns, who were licensed psychologists, and who had this report in their possession. And went over it with her to determine her ability to give up the child. Secondly, she has her own attorney that she consults with before she ever signs any documents, and then obviously the medical examination. So we take as much precaution as we can to make sure that she's basically informed and legally represented before we ask her to make this decision. MacNEIL: And that does not reassure you that a woman is entering into this in a rational and -- Ms. ROTHMAN: Of course, the thrust here in this kind of psychological testing is going to be to find women who are going to be compliant. That's certainly a major part of it. You're going to want women who will not -- not only not change their mind, but not fight. Women who will give up. So that testing to find the most compliant women, the women least likely to fight, is not altogether reassuring to me. MacNEIL: What do you think -- I asked Mr. Keane about this earlier -- what do you think of the grounds for an appeal in this case if Mrs. Whitehead wants to appeal. Ms. ROTHMAN: Well, it's hard -- oh, we have to sit down and look at the entire 100 page decision, which we haven't got. But I find it very hard to understand upholding the contract, when the essence of that contract is signing away parental rights before the birth of the child, and New Jersey law says you can't do that. I find that somehow it seems that the custody issues and the contract issues seem to have been muddled. MacNEIL: You're saying this creates new law? Ms. ROTHMAN: Yes. And dangerous ones -- MacNEIL: -- which can be challenged on the basis of existing law? Ms. ROTHMAN: That's right. You have to understand the dangers here are not only to the specific 500 or 600 women involved in the surrogacy issue, most of whom may be perfectly comfortable with what they've done -- or maybe not 10 years down the pike, we don't know. But it also reaffirms the notion that women are pregnant, but that is simply growing a man's seed in their bodies. It is not a particularly important relationship. It is something that's available for dollar and change an hour. Mr. KEANE: I might suggest that Barbara's suggested that if she wasn't biologically related to the child, she might have less of a claim for the child, unless I misunderstood -- Ms. ROTHMAN: No. I'm saying something very different. I'm saying that the genetics are not the issue here. That it is the nurturing that goes on in pregnancy. Mr. KEANE: We've actually taken the ovum from the wife and the sperm from the husband and done fertilization in the petra dish and placed that to a surrogate, and Barbara's Ms. ROTHMAN: And it becomes even more dangerous in a sense, because it opens the possibility for the very scary image of baby farming the babies of wealthy white couples,in the bodies of foreign third world women when you start doing that kind of thing. Some of us are yet more frightened about the exploitation possibilities with women who are yet more desperate for the money. MacNEIL: But you believe that you're going to remain on sound ground here, and that the practice is going to be recognized in law? Mr. KEANE: I don't think there's any question about that. I think with that judge's decision, and if in fact it stands up -- and we have every reason to believe it will -- I think that -- I've always thought that surrogate parenting was here to stay anyway. I think there's a constitutional right to procreate, and that it's got to be enforced by the courts if in fact you have that right, and I think this decision, we feel very good about it. MacNEIL: We're joined now by Gary Skoloff, who was the attorney for the Sterns. Mrs. Whitehead reportedly is prepared to contest and appeal this decision. What do you think of the grounds for appeal? GARY SKOLOFF, Attorney: Well, the decision was very sound by Judge Sorkow. It ws over 100 pages in length, well reasoned, and with much legal precedent. I think that he will be affirmed as we go up the ladder to wherever we have to go. The reason why my adversary, Harold Cassidy, is not here right now is he's in the Appellate Division this very moment, making a [unintelligible] application returnable Thursday. Because the decision terminated the visitation rights of Mary Beth Whitehead, as well as her parental -- MacNEIL: In the two parts of the decision, which did you feel was the telling one -- the unsuitability of Mrs. Whitehead to be as good a mother as your client, Mrs. Stern -- or the validity of the contract that the judge said should be upheld.

Mr. SKOLOFF: Well, the validity of the contract carried a tremendous amount of weight, in terms of the importance of the decision. Because he actually held it was in the public policy of the state to allow surrogate parenting, and that this contract in particular was valid. Which means that the ICNY type of contract -- MacNEIL: What is an ICNY? Mr. SKOLOFF: Oh, I'm sorry. That's Mr. Keane's organization. The Infertility Center of New York. And that contract the judge held valid on every score, for every reason. With only one exception, which was the abortion exception. That if a woman wishes to abort that she has the right to. He grants that one exception; otherwise he found the contract valid and enforceable. And based upon it, took us to determination of parental rights. MacNEIL: Since we don't have Mr. Cassidy here, let us use Dr. Rothman's argument that this goes against the established law accepted by all states, including New Jersey, on adoption. Mr. SKOLOFF: That is -- excuse me, are you asking me? MacNEIL: Yes. Mr. SKOLOFF: That is exactly what the judge distinguished. That was Harold Cassidy's very heavy argument throughout the entire trial. That you've got to apply adoption law to surrogate parenting. And we argued against it, and Judge Sorkow explicitly rejected the concept that adoption and surrogate parenting are the same types of situations. To the contrary, he pointed out specifically that in surrogate parenting, the child is being delivered to a biological parent, whereas in adoption it is going to a stranger. And that the child is created under surrogate parenting. Thatthe very sole purpose of accomplishing there. Whereas with adoption, it's an entirely different situation, very often with all kinds of pressures. So he distinguished it very carefully in his opinion. But of course Cassidy will argue it all the way up to the Supreme Court. MacNEIL: Well, Dr. Rothman has suggested -- agreed with me a moment ago when I suggested to her -- was that in effect writing new law in this area. Is that what you think this is? Mr. SKOLOFF: Oh, yes. Did Judge Sorkow write new law? Absolutely. There was no precendent for what has occurred, and he has broken new ground and written new law. Mr. SKOLOFF: Yes. Ms. ROTHMAN: I think you've got to put this whole thing in context in the abortion situation -- the adoption situation. When there became a shortage of white babies, white newborn infants available for adoption, a lot of people began to think about how we could drum up essentially more babies. I think that the whole phenomenon of so called surrogacy is a way of sidestepping baby selling laws. That you can hire women to have the babies they would not otherwise have, and you could do that by saying, ''Well, it's really only going to its genetic parent. '' It's putting such incredible value on this genetic link, as if adoptees go to strangers, but here they go to a biological parent. They go to somebody whose sole connection is a genetic tie. And that's all. And in the sense that the genetic tie is the overpowering, definitive tie, and the nurturance that goes on in the pregnancy, the relationship between the woman and the baby that grows within her body is nothing. That's a cheap service, but the genetic tie, that's everything. Mr. KEANE: May I just make a comment that the courts in California, New York, Michigan, and Kentucky have already ruled that this is not the area of baby selling and buying -- that this is a new concept and has nothing to do with those type of activities. Ms. ROTHMAN: But it's -- Mr. SKOLOFF: But four state courts have already spoken -- one Supreme Court in the state of Kentucky has already ruled that this is not that type of activity. MacNEIL: But you say that your opponent in this, Mr. Cassidy, the Whitehead's lawyer, is going to appeal all the way to the Supreme Court. Do you expect it to go all the way to the Supreme Court? Mr. SKOLOFF: To the State Supreme Court or Federal? MacNEIL: You tell me where you think -- Mr. SKOLOFF: Well, clearly the State Supreme Court, without any question. All three sets of lawyers have agreed that we will make a request of our New Jersey Supreme Court to take the case directly, rather than let it go through the Appellate Division process, which is a mid level court. MacNEIL: If your client, Mr. Stern, was confident in this decision today, why did he -- as I believe is the case -- then move to adopt the baby, which he has done. Is that not the case? Mr. SKOLOFF: Well, oh -- MacNEIL: I beg your pardon, Mrs. Stern has now moved to adopt the baby. Mr. SKOLOFF: She has adopted. Do you know that? Are you aware of the fact? Mr. KEANE: -- parental right today is my understanding. Mr. SKOLOFF: Let me take you a step further -- nobody may know, because it just happened. I mean, my heart is still beating. I just got here from leaving that courtroom scene. At the conclusion of the decision, the judge said, ''Mr. Skoloff, Mr. and Mrs. Stern, come into my chambers. '' Did you know this happened? Mr. KEANE: No.

Mr. SKOLOFF: Oh. We went into chambers, and he said to them, ''Sit down. We are now going to have the adoption hearing. '' Betsy Stern, as of one hour ago, about, is the legal mother of Melissa. Betsy Stern has adopted the baby in chambers within ten minutes after completion of the decision. MacNEIL: Does that not argue that the judge wondered himself whether this pecedent would carry and whether he didn't need to take shelter and comfort in the adoption laws. Ms. ROTHMAN: The thing about this that's so intriguing is that it is not in the best interest of women. Women cannot get babies this way. Men can get babies. If at the end of that ten minutes, Mr. Stern had turned to Mrs. Stern and said, ''I want a divorce,'' she'd be in trouble about getting access to that child. Mr. SKOLOFF: Did Mrs. Stern just acquire a baby? Is she not now a mother? Ms. ROTHMAN: Now she did by adopting the child, but she cannot hire a surrogate mother. Only men -- women married to men without sperm cannot hire surrogate mothers. Women who do not have men in their lives cannot hire surrogate mothers. Men can hire surrogate mothers. So that this is not women's access to babies, this is men's access. Mr. KEANE: I'm not so sure you're right on this. Because -- Ms. ROTHMAN: You're claiming it's a genetic -- Mr. KEANE: No, I can go beyond it and say the law isn't clear whether or not the right to have a child is based on a genetic tie. I'm just telling you that the process that we're doing today does in fact involve the genetic tie, but where you have an infertile -- a single infertile women -- she may well be able to buy sperm and inseminate a surrogate, if there is in fact [unintelligible] of a woman -- Ms. ROTHMAN: All right. We're not talking about buying babies in kits. You can't buy babies. You can buy sperm, you can buy an egg, you can rent an uterus, you can buy a baby in a kit. You're pushing this inch by inch towards this notion of babies as purchasable commodities, accessible to wealthy people who have a right to procreate. Mr. KEANE: Why can't we be addressing the infertility issue -- that we're solving a very devastating problem for milliions of people -- MacNEIL: Let's take one argument at a time. Let's answer Dr. Rothman's point. That you're moving gradually towards the ability to legally purchase babies. Mr. SKOLOFF: I cannot phrase it in that manner. The way I see is it one out of seven couples are infertile. We're moving towards a way of solving a problem of tremendous pain of one out of seven couples. And may I say that we gotta face it, because it's going to happen no matter what any state does. It's like, can you ever get rid of the atom bomb now that it's here. With one out of seven couples, you cannot get rid of surrogate parenting. It is here. It's a question of whether or not we're gonna legalize it or how we're gonna handle it. Ms. ROTHMAN: Well, comparing it to the atom bomb is interesting. But the notion that one out of seven couples are infertile is a very serious issue. One out of seven couples in America does not have $25,000 to $30,000 in cash to buy one child, let alone $60,000 for a two child family. This is not the solution we need to infertility. We need to have a public policy to address the very real problem of infertility, but not by allowing rich people to use poor women to bear their children for them. MacNEIL: How do you answer that? I mean, if somebody can't afford to do this, they are denied this recourse. Mr. KEANE: Well, as a matter of fact, there's a lot of people that can't afford in vitro fertilization or anything else that may be an alternative to fertility. But I can assure you that there are more and more of the lower and middle income people that are now coming up to my office with their own surrogates, saying, ''Mr. Keane, willyou help us find the legal procedures and medical procedures for us to acquire a child. We have located our own surrogate. Not at a cost of $25,000. Because surrogate parenting is now a means for everybody to have a child if they can locate somebody, without even giving her a fee. Some people have to search out and find somebody who will do it for a fee. Ms. ROTHMAN: The notion of people giving up babies for adoption was always there. If you could find somebody to give up a baby for you, fine. It's the question of the fee, the buying, the selling, the regulation. It's the notion that the baby's not the mother's all along. That's what's new here. MacNEIL: I think I've seen it argued that a lot of these women, Dr. Rothman, are doing it as much out of a sense of altruism and as one woman helping another as they are for the money. Ms. ROTHMAN: Absolutely. I think -- certainly -- MacNEIL: Is that the case? Mr. KEANE: That was my argument. That some people are finding somebody who will do it for less than $10,000. Less than paying me $10,000. MacNEIL: But I'm thinking of the motivation of the women who do it. Mr. KEANE: Ninety percent of them do it for not the fee. They do it to help somebody establish a family. And when we look at the fee, we're looking at a $10,000 fee payment. It works out to less than . 00 an hour, if you look at the exposure of time that the people are involved in this process. Mr. SKOLOFF: My big problem with Dr. Rothman's argument is -- and it really gets me upset on occasion -- is that you're actually saying that we need to have judges to tell these dumb, stupid women -- Ms. ROTHMAN: Hardly what I'm saying. Mr. SKOLOFF: No? Ms. ROTHMAN: No. Mr. SKOLOFF: Well, if a woman decides that she would like to a) earn the money, and b) -- Ms. ROTHMAN: Well, let her sell babies. If we want to allow babyselling, then go for it. Let's say that we're selling babies. And if -- Mr. SKOLOFF: As long as you hook into terms like that, how about creating a child for a childless couple, could you use that term as much as selling a baby, which you like because it has a certain ring? Ms. ROTHMAN: Yes. Well, say that the woman creating the child has the child, it's her child, if she wants to give it, let her give it. That's adoption. If she wants to sell it, fine, let's open up -- Mr. SKOLOFF: But didn't she decide to give it before she became impregnated. Ms. ROTHMAN: We have not permitted that all along. We have not permitted people to be hired to have babies. We have not permitted people to sell babies. It opens up potential for the extraordinary exploitation -- the $10,000 -- Mr. KEANE: Exploitation of whom? Of women. Ms. ROTHMAN: Well, some possibility of extraordinary exploitation. Mr. SKOLOFF: What the doctor is saying is she is part of the movement that says that we need these people in black robes to protect these women, even though they're adult, and intelligent, and over 21, we need judges to tell them that they cannot -- Ms. ROTHMAN: We have laws against organ sales. We say, even if I say I want $10,000 so badly I'm willing to sell a kidney, we say no, it's not in the public interest to do that. Because some people would be so desperate for money, they would be forced into doing things like that. That's the same philosophy we've used to object to this notion of forcing people into selling babies when they change their mind. The court wouldn't -- even if I signed a contract to sell my kidneys -- the court wouldn't drag me in, kicking and screaming if I changed my mind. And that's not a women vs. men issue. That's a notion of bodily integrity, bodily autonomy, relationship between a woman and her baby and her body. MacNEIL: We have just less than a minute here. This decision today, obviously a very important decision, with landmark possibilities -- it doesn't end anything yet. I mean, it doesn't settle anything yet. Mr. SKOLOFF: That is correct, it doesn't settle it, but it really sets the tenor for what is going to occur. It really is extraordinarily significant. It's the first major case in a major state that gave it a major amount of time, and the judge said these contracts are valid and enforceable, and this kind of situation should be legalized. And it really does set a tremendous momentum for all of our states, as well as many nations. MacNEIL: Okay, Mr. Skoloff, Dr. Rothman, Mr. Keane, thank you for joining us. Businessman and the Gheisha LEHRER: Last night, the U. S. trade representative, a Japanese economic expert, and a Wall Street economist were here to discuss the escalating trade and money war between the United States and Japan. Tonight we follow the story another step with some thoughts on the deeper economic relationship between these two allies. They are the thoughts of our regular business correspondent, Paul Solman. PAUL SOLMAN: You were worried about America's trade deficit with Japan, just like everyone else, right? Well, let me tell you a little story that may cause you to see the situation differently. [voice over]: It's a parable called Sayonara Revisited. Now the two main characters are the American, a very successful fellow, recently retired, who engages the services of the gheisha. First, a litle background on the American. He has worked for years to earn his retirement. Now, at long last, he is determined to take it easy and keep himself amused. He is perfectly willing to pay for all his necessities and his diversions. Now, the gheisha is introduced. Having grown up in poverty after World War II, she worried about her economic future, so she began making things for the American. First, she made them cheaper, so the American bought them. Then, she made them better, so the American bought them. Finally, she began making things the American never even dreamed of. And when the American businessman pays her, she usually salts away at least 20% of what she earns. The American, of course, does just the opposite. He's not saving for posterity. What's posterity ever done for him? He loves his leisure, his possessions, his way of life. And for years, he's been willing to part with his money to buy what he wants. And according to the author, this is a good thing. The beauty is that each partner in the relationship is getting exactly what he or she wants from it. This is the perfect match. [on camera] Now, remember, this is a parable. About the modern trading relationship between the United States and Japan. The basic idea is that the trading system is working beautifully for both countries, given their real cares and priorities. Our gheisha is simply heir to an age old Japanese tradition of self sacrifice and determination when times get tough, and she can't break the habit. She can't stop worrying about the future, so she can't stop working so hard. She can't stop saving. She can't stop making things. Our American, meanwhile, has forgotten almost everything economic, except how to spend money, which he does on whatever the gheisha so obligingly provides. So, the Japanese produce, we consume. It's a perfect fit, right? But you're skeptical. You're saying to yourself, ''What happens when the American finally runs out of money?'' [voice over] Well, let's go back to the parable and see what it has to say about that. Dollars -- that's what the American gave to the gheisha. And what did the gheisha do with them? She deposited the dollars in Japanese banks. So the Japanese banks had all these dollars, and meanwhile the American had spent so much money he was running out. So what did the Japanese banks do? This is the best part. They lent those dollars back to the American. He gave them IOUs, the banks gave him dollars -- the very same dollars he had been paying the gheisha so long. [on camera] And that's just what's been happening in the relationship betwen the U. S. and Japan. We've been spending more than we've got. That is, running into deficit. To cover it, we've gone into debt as a nation, and issued government IOUs. That is, treasury notes, treasury bils, treasury bonds, which we sell to the Japanese. What a system. They ship us their stuff. We ship them our dollars, and when we run out of the dollars, we borrow the dollars back from them to buy more of their stuff. It's a perfect relationship. And the only question is the question that's hanging over most relationships these days -- can it last? So, let's go back to the parable one last time to see how it comes out.

[voice over] The gheisha became so dependent on the American's patronage that she couldn't afford to bring the system to a halt. The American kept spending, the Japanese banks kept lending him the money, and so the couple complemented each other perfectly, and -- [on camera] can you believe this? The last page is missing. So I guess we can't tell you how the story turned out. But we can take a look at what's happening in the real world. And it's simply this. People have finally woken up to the fact that Americans are spending more than they've got and trying to paper over the problem with their IOUs. As a result, the dollar has been losing value. And so, Americans can buy fewer and fewer Japanese things with the dollar at its current value. And the Japanese are worried that without us they will have no one else to sell to. This is putting a terrible strain on the relationship between us. On the other hand, as the book points out, there is a tremendous attraction between producing Japan and consuming America. And what's sometimes forgotten when people analyze this situation is that both sides have an enormous stake in maintaining things exactly the way they've been. JACQUES CHIRAC LEHRER: We go next to a newsmaker interview with the Prime Minister of France, Jacques Chirac. He is in this country on an official visit, and met today with President Reagan and top administration officials. They covered an agenda that ranged from arms control to joint efforts in AIDS research. Judy Woodruff interviewed Mr. Chirac a few moments ago from the Washington hotel where he is staying. JUDY WOODRUFF: Mr. Prime Minister, thank you for being with us. You have been concerned that any agreement between the United States and the Soviet Union to eliminate medium range nuclear weapons from Europe not leave America's allies at disadvantage. Have your concerns been completely eliminated today by your discussions with President Reagan. JACQUES CHIRAC, Prime Minister of France: Well, but to be frank, I wasn't worried. I am confident in the way the President will negotiate with the Soviet Union about the disarmament problems. We are especially concerned, of course, by the medium range missiles, so called INF, and what we want is a link between the disarmament in the INF system and the short range missiles. You know that Soviet Union have huge amount -- much more than we have -- we western countries, I mean -- western world -- for the short range. In the agreement, something should be said on the way to have an equilibrium about those short range.

WOODRUFF: What assurance, then, did you get from the administration today -- was that even an issue today? Prime Minister CHIRAC: The President and the Secretary of State and Mr. Weinberger, who I met this afternoon, were very clear. Nothing could be done by the United States which would be dangerous for the European countries, and the agreement of the INF will involve an agreement guidelines of an agreement on the short range. Which is what we asked for. On the side, of course, we have -- it is another discussion in another place -- to discuss about the difference of the conventional and chemical forces between the nations of the Warsaw Pact and the nations of the Alliance. WOODRUFF: I will ask you about the conventional weapons in just a moment, but as you know, Mr. Prime Minister, the Soviet leader, Mr. Gorbachev, is saying that there will be no agreement on short range missiles until after an agreement has been reached on the medium range missiles. How do you resolve this? Prime Minister CHIRAC: Well, I think that Mr. Gorbachev can say what he thinks and what he wants, but that's not a reason -- for the western countries and the United States to do exactly what Mr. Gorbachev wants. I am very sure that in this negotiation, which is a difficult one, the American administration will take great care not to put the European nations in danger -- which would be the case if we would have an agreement on the INF, and nothing about the short range. This wouldn't be resolvable. This would be -- give much to the Soviet Union, which is not reasonable. WOODRUFF: But as you pointed out yourself, even with an agreement on short range missiles, which is not assured at this point, you still have Soviet superiority in conventional forces. Did you get any assurance from President Reagan today that the Americans will beef up conventional forces in Europe? Prime Minister CHIRAC: Well, I never thought that the linkage, necessary linkage, between Europe and the United States would be cut. Which means that I never thought that any American administration could abandon their position in Europe. It's possible to say that when you are a journalist, politician, when you have no responsibility. But no American administration could take such a responsibility to go out of Europe. That's why I've never been worried. Because the freedom and security of the United States starts in Europe, and I'm very confident in that. WOODRUFF: So you think this Soviet superiority in conventional forces will somehow take care of itself.

Prime Minister CHIRAC: Well, the Soviet superiority should be discussed between the European countries of east and west. Which is the case now in the CSCE discussions. And we hope that we can reach an agreement, and I know that the American administration is very firm on this to limit this superiority, which is part of the general agreement for disarmament. It has nothing to do with the Geneva discussions, of course, but it is a part of the general strategy which should be to achieve disarmament on the nuclear power and decide limitations and decrees of the conventional and chemical forces. But you should never forget I'm French, I'm in Europe. But the security of Europe is maintained with three conditions. First, to maintain a nuclear deterrent, which is the only way to maintain peace. Second, to maintain the linkage between Europe and the United States, which is necessary for both parties. And I'm not worried about that. And, third, the European countries -- that's what friends do -- the European countries should improve quite a lot their effort for defense, and for more coherent defense, which means more consultation between them. That's why I proposed at the last meeting of the Western European union. WOODRUFF: Mr. Prime Minister, let me ask you, your colleague, Prime Minister Thatcher, is in the Soviet Union right now. What do you make of these recent moderating moves by Mr. Gorbachev. Do you take them seriously? Do you think he's sincere? Prime Minister CHIRAC: Well, you know I am very prudent, and of course, I hope it is. And I wouldn't say he isn't. But the proofs of the move are [unintelligible] that's true, but they are small yet. Much too small. If, within a few weeks, or months, Mr. Gorbachev gives real proofs of its move, for instance, by withdrawal from Afghanistan, or by freeing the political prisoners, and by leaving the Jews of the Soviet Union emigrate if they want, then I will think that something changed and my confidence will increase.

WOODRUFF: Let me ask you one final question about President Reagan. There is a perception here recently in this country, that the President has been weakened by the Iran contra affair. What is your perception of this president? Has he been weakened by this whole affair? Prime Minister CHIRAC: Well, I understood that it was the case in the United States which we do not understand in Europe. But I can tell you that in Europe, and I speak about the [unintelligible] , but also the public opinions, that President Reagan hasn't been weakened at all. He has always the same charisma, and the same strength. And nobody -- well, he wasn't weakened at all by this problem abroad. It's a typical American affair. WOODRUFF: Typical American affair? Well, Mr. Prime Minister -- Prime Minister CHIRAC: -- which we don't understand very well, to be frank, outside. WOODRUFF: Thank you very much, Mr. Prime Minister, we thank you for being with us. Prime Minister CHIRAC: Thank you very much, Judy. Thankful at 50 LEHRER: We close tonight with some thoughts about turning 50, from a man who just did. He is our man in Kansas City, essayist, Jim Fisher of the Kansas City Times.

JIM FISHER [voice over]: March 18, 1937. The day when one of those 1930s dust storms blew in from Kansas, darkening the sky. The street lights came on at 3:00 pm. At the old St. Luke's Hospital in Kansas City, a janitor with a filthy mop followed my parents. Mother's water had broken. And the clerk told dad the charge would be six bucks a day, a sum that would take months to pay off. An hour or so later, I was born. [on camera] For me 50 years is sort of special. A time to recall my generation. One that's seen American become much of what it is today. Ours was a group that in 1937 seemed almost unlucky to be born. But one, looking back, that was maybe the luckiest of them all. [voice over] 1937, a bad year. More dust storms. Sitdown strikes. Millions unemployed. Looking ahead, what reason could there be to have children, except for love. When would the depression end. Nobody knew. But it did. World War II came, and the bad times, which we really never knew were over. To help the war effort, we collected paper and rubber, watched our mothers go half mad dealing with ration points. We were polite and knew table manners. We had short haircuts. Girls wore dresses. We asked permission to use the phone, and never made long distance calls. Those were only for emergencies. We grew up with war and made models of its weapons. The bomb was a fact of life. Still, most missed Korea and Vietnam. Too young for the former, too old for the latter. But we were just right for polio; iron lungs were our aluminum coffins. We were the last radio generation, our imagination running full of the Lone Ranger and Jack Armstrong, Fibber McGee and the Shadow. Television? It was crude and green. To our teenage tastes, the movies were better. Cars? Who cared about mileage. What counted were compression ratios. Life tried to chronicle us and mostly failed, coming up with pictures of those with ducktails and leather jackets. Ours was a quiet, almost unseen generation. We got out of school and went into the service, and then to work. Because that is what you did. Getting rich was a distant maybe. Having enough was what counted. We embraced rock 'n roll. We missed not only the sexual revolution, but its various medical and emotional consequences. And thank God, we missed drugs. Our real constant has been the continuum of technological and social change. DC3s to 767s. Number 3 pencils to comupters. The death of the soda fountain, the rise of Big Mac. And finally, a nation, at least now, trying to have the manners to treat all its people with respect. [on camera] Other older generations have seen that change and more. But ours has been the accepting one. Change seems almost part of our genetic make up. Not to initiate change, perhaps, but almost always to accept it. It's as if we knew that anything would be better than 1937. So what do you say at 50? One word to your parents: Thanks. MacNEIL: Again, the main points in the news. Custody of Baby M was awarded to her natural father. A U. S. military advisor was killed in El Salvador. A third U. S. Marine was implicated in the Moscow Embassy spy affair. And the House voted to override President Reagan's veto of the highway bill. Good night, Jim. LEHRER: Good night, Robin. We'll see you tomorrow night. I'm Jim Lehrer. Thank you and good