Mommie Dearest:

THE BABY M case, decided last week, produced at least as much posturing as it did postulating among commentators. For feminists, the trial provided an opportunity for some male-bashing. And from the hawkers of surrogate parenting came the ridiculous claim that New Jersey Superior Court Judge Harvey R. Sorkow's ruling had made an honest woman of surrogacy.

First, the feminists. Betty Friedan, for one, thought the very concept of the trial sullied by its subservience to "masculine" social theory: "This whole thing has to be taken out of the realm of contract law that is based on the male model of corporate stocks and commodity trading," she told The New York Times."If the woman wants to keep the baby, you would have to assume that the claim of the woman who has carried the baby for nine months should take precedence over the claim of the man who has donated one of his 50 million sperm."

It's a shame that Friedan clouded a very powerful--though common--argument against the judge's decision in silly feminist propaganda. What's sperm got to do with it? A whole lot, if my high school health teacher was right. But let's let Friedan get her misanthropic digs in. What's interesting is that this radical chic is arguing such a conservative position. So conservative in fact, that it's one she shares with the Catholic Church.

The classic traditionalist argument against feminism is that there are certain inalienable aspects of womanhood which render moot arguments favoring a strict equality of the sexes. One such facet of feminity, of course, is the woman's ability to carry and give birth to children. This is the one conservatives use to defend their resistance to women leaving the home for the workplace. They argue that the bonds that develop between mother and child know no laws that humans may construct among themselves: "The forces that are at work here are not to be reduced to using the strength and power of the state to hold a woman to a contract that does violence to her own humanity the bonds of a mother to her child are a lot deeper than the 200-year-old experiment we call the United States of America and the Constitution," said the Rev. Edward M. Bryce, the director of pro-life activities for the National Conference of Catholic Bishops.

Both feminists and the Church, then, oppose contracted surrogacy because of the irreducible differences between men and women, in this case that of the special and distinct capacities for love and attachment that supposedly only a biological mother can have for her child.

WHILE THEIR alliance may seem odd, the position both sides rally around is perfectly defensible and not all that new. However, the rub is that theirs is a purely philosophical argument, the direct result of their reflections upon human nature and notions of individuality: What is a woman? they ask. Is she first and foremost an autonomous individual, a member of a sex or a constituent part of a broader community?

The fems and the Fathers agree that woman are, before anything else, females. Since childbirth is a defining aspect of femininity, a child cannot be alienated from its mother by so material an abstraction as a contract. But then the church and the feminists disagree: The Church uses this reasoning to oppose all forms of surrogate parenting, including in vitrio fertilization. The feminists merely oppose the notion of contracting for a baby. They say that a surrogate mother must retain the right to renege on the deal if she so pleases.

Does the bond of the surrogate mother really possess such moral weight? Here an analogy seems appropriate. If the surrogate mother's child cannot legitimately be taken from her by force of contract, what about an artist's creation? Can the work of an artistic genius be sold? Say a wealthy benefactor commissions a statue by some modern-day Michelangelo. In the process of creating a masterpiece, he grows so attached to the work that he cannot bear to part with it. Must he?

Isn't the work at least as much a part of the great artist--that genius which is peculiar to and defines him--as the child is of the surrogate mother? I would argue that it is even more so. The moral strength of "motherhood" doesn't derive from the mere carrying of the child. The mechanical rigors of childbirth are common to all women. The spirit and personality of the parent are not imparted so much in the biological production of the child as in the nurturing and rearing of it.

TO BE sure, the surrogate's child is of her flesh and blood. But the attachment of such a parent to such a child does not have the moral force of the product of a deliberate union between two people in love, or of an artist to his work. Their creation--and that of the artist--is more a part of them than the child the surrogate mother produces of her. Their attachment is more fundamentally "human" than the attachment of a woman who only endures the duress of carrying a child for money. Mary Beth Whitehead, like scores of surrogate mothers before her, did not consider creating a baby until some man and woman made it worth her while.

All of which is to say that the Baby M case is a difficult one, but that disputed philosophical conceptions of femininity won't make for just laws in our pluralistic society. If individual women do not conceive of themselves as the Church and others do and are willing to be surrogates, who is to stop them? At the same time, Judge Sorkow's ruling is not, as the director of the Center for Surrogate parenting sees it, the second coming of Scopes. His written decision was meanspirited and often confused in its logic. But he could not have held any other way.