In the Matter of Baby M

This was the first widely followed trial to wrestle with the ethical questions raised by "reproductive technology." This case rejected the legality of surrogacy contracts while eliciting a divided response from feminists. Some asserted the primacy of a mother's claim to her child; others argued that any nullification of the contract would constitute a restriction upon a woman's right to control her own body.

Melissa Stern's conception took place under an agreement signed at Noel Keane's Infertility Center of New York on 5 February 1985. There were three parties to the agreement: Richard Whitehead gave his consent to the agreement's "purposes, intents, and provisions" and to the insemination of Mary Beth Whitehead, his wife, and with the sperm of William Stern. In addition, since any child born to Mary Beth Whitehead would legally be the child of her husband, he agreed that he would "surrender immediate custody of the child" and "terminate his parental rights."

Mary Beth Whitehead agreed to be artificially inseminated and to form no "parent-child relationship" with the baby. She agreed that she would, upon delivery of the child, surrender her parental rights to William Stern; and she further agreed that she would, during the term of the pregnancy, relinquish her right to make a decision about an abortion. She was permitted to seek an abortion only if the fetus was "physiologically abnormal" or if the inseminating physician agreed an abortion was required to insure her "physical health." Mary Beth Whitehead then agreed that it was William Stern's right to require amniocentesis testing and that she would "abort the fetus upon demand of WILLIAM STERN should a congenital or genetic abnormality be diagnosed." Despite the limitation of Whitehead's right to seek an abortion, the contract allocated responsibility for the child in the event that Whitehead refused to fulfill this part of her agreement: "If MARY BETH WHITEHEAD refuses to abort the fetus upon demand of WILLIAM STERN, his obligations as stated in this Agreement shall cease forthwith, except as to obligations of paternity imposed by statute." Finally, the Whiteheads "agree[d] to assume all risks, including the risk of death, which are incidental to conception, pregnancy, [and] childbirth."

William Stern agreed to pay ten thousand dollars to Mary Beth Whitehead. Although the ten thousand dollars was described as "compensation for services and expenses" and the contract specifically stated that the fee should "in no way be construed as a fee for termination of parental rights or a payment in exchange for a consent to surrender the child for adoption," it was payable only upon Mary Beth Whitehead's surrender of a live infant. If Mary Beth Whitehead suffered a miscarriage prior to the fifth month of pregnancy, she would receive no compensation. The contract also noted: if the "child is miscarried, dies or is stillborn subsequent to the fourth month of pregnancy and said child does not survive," William Stern would pay Mary Beth Whitehead one thousand dollars. He also paid ten thousand dollars to Noel Keane, for his services in arranging the surrogacy agreement.

William Stern's wife, Betsy, was not a party to the agreement, nor was she mentioned by name. The contract referred only to William Stern's wife. The first such reference was in the statement that the contract's "sole purpose . . . is to enable WILLIAM STERN and his infertile wife to have a child which is biologically related to WILLIAM STERN." The other reference stated, "In the event of the death of WILLIAM STERN, prior or subsequent to the birth of said child, it is hereby understood and agreed by MARY BETH WHITEHEAD, Surrogate, and RICHARD WHITEHEAD, her husband, that the child will be placed in the custody of WILLIAM STERN'S wife."

Events did not go according to the contractual script. On 27 March 1986, Mary Beth Whitehead gave birth to a daughter. She named the infant "Sara Elizabeth Whitehead," took her home, and turned down the ten thousand dollars. On Easter Sunday, 30 March, the Sterns took the infant to their home. The baby was back at the Whitehead home on 31 March; in the second week of April, Whitehead told the Sterns she would never be able to give up her daughter. The Sterns responded by hiring attorney Gary Skoloff to fight for the contract's enforcement. The police arrived to remove "Melissa Elizabeth Stern" from the Whitehead's custody; shown the birth certificate for "Sara Elizabeth Whitehead," they left. When the police returned, Mary Beth Whitehead passed her daughter through an open window to her husband and pleaded with him to make a run for it.