BABY M, IN RE
In 1988 the New Jersey Supreme Court declared
surrogacy contracts void against state public
policy but then determined that the best inter-
ests of the child born to the surrogate mother
required that custody of that child be awarded to
the biological father and his wife, with liberal
VISITATION RIGHTS later being granted to the
biological mother. In the Matter of Baby M, 109
N.J. 396, 537 A.2d 1227 (N.J. 1988).
Mary Beth Whitehead entered into a con-
tract with William Stern in which she agreed to
be artificially inseminated with Stern’s sperm. At
the time, Mary Beth was married to Richard
Whitehead, with whom she had two children. In
the Surrogate Parenting Agreement Mary Beth
agreed that after the baby was born she would
relinquish the baby to Stern and his wife Eliza-
beth and would permit the termination of her
parental rights so that the Sterns could adopt the
baby. In return the Sterns would pay Whitehead
the sum of $10,000, plus expenses. Elizabeth
Stern was not a party to the contract.
Richard Whitehead did not object to the
contract and acknowledged that his wife would
be artificially inseminated by Stern’s sperm.
Prior to the Baby M case, surrogacy agreements
had been most often used when the wife of the
adopting couple was infertile. But in the Baby M
case Elizabeth Stern was not infertile. Instead the
Sterns decided not to have Elizabeth bear a child
due to the possibility that being pregnant would
exacerbate her multiple sclerosis.
Under the Surrogate Parenting Agreement,
Mary Beth was not entitled to payment of her
$10,000 fee until after the child was born, sur-
rendered to the Sterns, and her parental rights
had been terminated. The contract also pro-
vided that the Whiteheads would receive no
compensation if the child was miscarried prior
to the fifth month of pregnancy and would
receive only $1,000 if the child was miscarried
after that time. Additionally, Whitehead
renounced her right to have an ABORTION,
unless it was medically necessary.
Whitehead gave birth to a baby girl named
Melissa on March 27, 1986. She turned custody
of the child over to the Sterns on March 30,
1986, but immediately regretted doing so.
Alarmed by Whitehead’s anxieties and fearing
that she might commit suicide, the Sterns
allowed her to have temporary custody of the
child. After Whitehead refused to return the
baby to the Sterns, William Stern filed an ex-
parte application for an order to show cause why
the Superior Court of New Jersey should not
issue an order for SUMMARY JUDGMENT to
enforce the surrogacy contract and a verified
complaint seeking specific enforcement of the
contract. The complaint sought injunctive relief
to obtain custody, termination of Whitehead’s
parental rights, and an order allowing the Sterns
to adopt Melissa.
The trial court issued a TEMPORARY RESTRAIN-
ING ORDER and an order requiring the White-
heads to surrender Melissa to William Stern. The
Whiteheads refused to surrender the child,
instead removing her from the state of New Jer-
sey and taking her to Florida. While in Florida,
Mary Beth Whitehead threatened to kill the child
if Stern did not drop his case to enforce the sur-
rogacy contract. She also threatened to accuse
William Stern of sexually abusing Whitehead’s
other daughter. Melissa was later recovered by
law enforcement officials in Florida and returned
to New Jersey, where the Sterns assumed custody
under the New Jersey court order.
The case then proceeded to a trial on the
merits.During trial Mary Beth stressed the bond
that had developed between her and Melissa,
especially after the child’s birth. Whitehead tes-
tified that she intended to turn over Melissa to
the Sterns but that after the child was born she
was emotionally unable to do so. She testified
that she felt an obligation to the Sterns but said
that the “the obligation [she] felt to [her] child
was stronger.”Whitehead also offered testimony
by child development experts who testified as to
the important and the unique role played by the
biological mother in a child’s early development
and the harm that can result to both the child
and the biological mother when the two are sep-
arated immediately after birth.
The EXPERT TESTIMONY offered by the
Sterns at trial focused on the best interests of the
child. For example, one doctor focused on the
question of whether the Sterns or the White-
heads would be better suited to meet the needs
of the child, concluding that the Sterns would be
able to make the child feel more wanted, provide
more emotional stability for the child, provide
more educational support, offer greater capacity
to explain to the child what happened in the cir-
cumstances of her conception and birth, and
better assist the child in reaching maturity.
Another doctor testified that the Sterns could
provide a stable and financially secure house-
hold, while the Whitehead household was dom-
inated by Mary Beth Whitehead, who had
established a pattern of dealing with her chil-
dren by “inhibiting their development of inde-
pendence.”
The trial lasted 32 days and consisted of tes-
timony from 23 lay witnesses and 15 expert wit-
nesses. Ultimately, the trial judge declared the
surrogacy contract valid and enforceable,
awarded custody of Melissa to William and Eliz-
abeth Stern, and terminated Mary Beth White-
head’s parental rights, although the judge
permitted Mary Beth limited visitation rights
pending her direct appeal to the New Jersey
Supreme Court.
The New Jersey Supreme Court affirmed in
part, reversed in part, and remanded the case to
the trial court for further proceedings. Specifi-
cally, the state supreme court reversed the trial
court’s ruling that the surrogacy contract was
valid and enforceable. The supreme court said
the surrogacy contract was unlawful on two dif-
ferent bases: (1) it conflicted with existing New
Jersey statutes and (2) it violated public policy.
The high court ruled that the surrogacy con-
tract conflicted with state laws prohibiting the
use of money in connection with adoptions,
state laws requiring proof of parental unfitness
or ABANDONMENT prior to the termination of
parental rights, and state laws affording a parent
the right to revoke a prior consent to ADOPTION.
The contract also violated important principles
of New Jersey public policy. Among these prin-
ciples were the preference for retaining children
with their natural parents; the equal status of
mothers and fathers in custody determinations;
the right of a parent to be fully informed prior
to consenting to the relinquishment of a child;
and the pre-eminence of the child’s best inter-
ests in any custodial placement.
Once the surrogacy contract was declared
illegal and unenforceable, the court said, the
issue of custody over a child born pursuant to an
invalid surrogate contract would be decided by
determining the best interests of the child. In
making this determination, the court said it was
required to consider that Mary Beth had acted
improvidently in violating the trial court’s order
by removing Melissa to Florida, threatening to
kill Melissa, threatening to lodge phony sexual-
abuse accusations against William Stern if he
failed to drop his lawsuit, and her overall
propensity to manipulate the system and use
Melissa to achieve her own aims. The court also
said it had to take into account the testimony of
the expert witnesses who testified that stability
in the Whitehead household was at best doubt-
ful, while the Sterns were much more likely to
provide Melissa with a strong foundation upon
which to grow and thrive. Accordingly, the court
ordered that custody of Melissa be awarded to
William and Elizabeth Stern. The New Jersey
Supreme Court also ordered the trial court, on
remand, to award Mary Beth Whitehead visita-
tion rights as the trial court deemed appropri-
ate. Following remand and after conducting a
further hearing, the trial court granted Mary
Beth Whitehead unsupervised, uninterrupted,
liberal visitation with Melissa.
Baby M was the first case decided by a state
court of final jurisdiction in which the lawful-
ness of a surrogacy contract was addressed.
States responded to the Baby M decision by
passing a flurry of legislation, which fell into
four classes.
The first class of legislation declares all sur-
rogacy agreements void and/or unenforceable in
that jurisdiction. Such legislation has been
enacted in Arizona, the District of Columbia,
Indiana, Michigan, New York, North Dakota,
and Utah. The second class of legislation pro-
hibits only surrogacy agreements in which the
surrogate is compensated with something of
value over the expenses incurred as a result of
the pregnancy. Such legislation has been
adopted in Kentucky, Louisiana, Maryland,
Nebraska, and Washington. A third class of leg-
islation addresses one particular aspect of surro-
gacy contracts. For example,Alabama, Iowa, and
West Virginia have exempted surrogacy agree-
ments from statutory provisions making it a
crime to “sell babies.”
The fourth class of legislation provides for
the enforceability of surrogacy contracts but at
the same time establishes significant safeguards
for parties desiring to enter such contracts. For
example, Illinois, Florida, Nevada, New Hamp-
shire, and Virginia make surrogacy contracts
enforceable so long as the parties to the contract
(1) provide proof that the intended parents are
medically unable to conceive or bear their own
children; (2) obtain judicial preauthorization to
enter the agreement; (3) participate in complete
medical and psychological examinations; and
(4) sign an informed consent notice acknowl-
edging that they have entered the contract after
having been apprised of all the risks in doing so.
In states that have not addressed the subject
by statute, issues regarding the lawfulness and
enforceability surrogacy contracts are resolved
by courts in a manner similar to how the Baby M
case was resolved, that is, by determining the
best interests of the child and weighing any
competing public policy concerns. However,
disputes over the lawfulness and enforceability
of surrogacy contracts would only come before
the courts in these states if a dispute arose
between the parties to the contract.According to
some figures, as many as 1,000 babies are born
each year to surrogate mothers without any judicial interference or oversight.
FURTHER READINGS
Baby M Case: The Complete Trial Transcripts: Superior Court
of New Jersey, Chancery Division, Family Part, Bergen
County: Transcript of Proceedings. 1988. Buffalo, N.Y.:
W.S. Hein Co.
Boyer, Paul S. 2001. Oxford Companion to United States History.
New York: Oxford Univ. Press.
NBC. January 25, 2002. Today Show Transcripts.
Richardson, Herbert, ed. 1987. On The Problem of Surrogate
Parenthood: Analyzing The Baby M Case. Lewiston, N.Y.:
E.Mellen Press.
CROSS-REFERENCES
Adoption; Artificial Insemination; Custody; Parent and
Child; Surrogate Motherhood; Visitation Rights.
