In the Matter of Baby M

The trial commenced on 5 January 1987, by which time a guardian ad litem had been appointed for the child, known as "Baby M." The Sterns had received temporary custody. Mary Beth Whitehead, who had been ordered by Judge Harvey Sorkow to discontinue breast-feeding the child, had been temporarily awarded two one-hour visits each week, "strictly supervised under constant surveillance . . . in a sequestered, supervised setting to prevent flight or harm."

Skoloff framed the "issue to be decided" as "whether a promise to make the gift of life should be enforced." He stated that "Mary Beth Whitehead agreed to give Bill Stern a child of his own flesh and blood" and emphasized that Betsy Stern's multiple sclerosis "rendered her, as a practical matter, infertile . . . because she could not carry a baby without significant risk to her health."

Harold Cassidy, the attorney for Mary Beth Whitehead, offered an alternative view in his own opening remarks: "The only reason that the Sterns did not attempt to conceive a child was . . . because Mrs. Stern had a career that had to be advanced . . . What Mrs. Stern has is [multiple sclerosis] diagnosed as the mildest form. She was never even diagnosed until after we deposed her in this case . . . We're here," Cassidy summed up, "not because Betsy Stern is infertile but because one woman stood up and said there are some things that money can't buy." A neurologist affiliated with the Mount Sinai School of Medicine testified that Betsy Stern was afflicted with "a very, very, very slight case of MS, if any."

When the issue of custody was brought up, Skoloff stated that contract law and the infant's best interests dictated that exclusive custody should be awarded to the Sterns: "If there is one case in the United States, where joint custody will not work, where visitation rights will not work, where maintaining parental rights will not work, this is it." He addressed Sorkow directly: "Your Honor, under both the contract theory and the best-interest theory, you must terminate the rights of Mary Beth Whitehead and allow Bill Stern and Betsy Stern to be Melissa's mother and father."

Baby M's guardian ad litem, Lorraine Abraham, took the stand to make her own recommendation. She told the court that she had relied, in part, upon the opinions of three experts in forming her own conclusion: psychologist Dr. David Brodzinsky; social worker Dr. Judith Brown Greif; and psychiatrist Dr. Marshall Schechter. Abraham stated that the experts "will . . . recommend to this court that custody be awarded to the Sterns and visitation denied at this time." Abraham, required to offer her own opinion as guardian ad litem, added that she was "compelled by the overwhelming weight of [the three experts'] investigation to join in their recommendation."

During Betsy Stern's testimony, she was asked by Randy Wolf, one of Whitehead's lawyers, "Were you concerned about what effect taking the baby away from Mary Beth Whitehead would have on the baby?"

Stern responded: "I knew it would be hard on Mary Beth and in Melissa's best interest."

Wolf then said: "Now, I believe you testified that if Mary Beth Whitehead receives custody of the baby, you don't want to visit."

Stern replied, "That is correct. I do not want to visit."

Skoloff next raised questions about Whitehead's fitness as a mother. Whitehead had hidden in Florida with Baby M shortly after the infant's birth, and Skoloff represented this as evidence of instability. He then played for the court a taped telephone conversation between Mary Beth Whitehead and William Stern:

Stern: I want my daughter back.

Whitehead: And I want her, too, so what do we do, cut her in half?

Stern: No, no, we don't cut her in half.

Whitehead: You want me, you want me to kill myself and the baby?

Stern: No, that's why I gave her to you in the first place, because I didn't want you to kill yourself.

Whitehead: I've been breast-feeding her for four months. She's bonded to me, Bill. I sleep in the same bed with her. She won't even sleep by herself. What are you going to do when you get this kid that's screaming and carrying on for her mother?

Stern: I'll be her father. I'll be a father to her. I am her father. You made an agreement. You signed an agreement.

Whitehead: Forget it, Bill. I'll tell you right now I'd rather see me and her dead before you get her.

The following day, it was Mary Beth Whitehead's turn to testify. One of her attorneys asked, "If you don't get custody of Sara, do you want to see her?"

Whitehead replied:

Yes, I'm her mother, and whether this court only lets me see her two minutes a week, two hours a week, or two days, I'm her mother and I want to see her, no matter what.

Expert testimony followed. Dr. Lee Salk, the influential child psychologist, testified for the Sterns. Already termed a "third-party gestator" in court documents, Whitehead would now be called "a surrogate uterus." "The legal term that's been used is `termination of parental rights,'" Salk began,

and I don't see that there were any parental rights that existed in the first place . . . The agreement involved the provision of an ovum by Mrs. Whitehead for artificial insemination in exchange for ten thousand dollars . . . and so my feeling is that in both structural and functional terms, Mr. and Mrs. Stern's role as parents was achieved by a surrogate uterus and not a surrogate mother.

Dr. Marshall Schechter testified, as predicted by Abraham, that he believed custody should be awarded to the Sterns. He declared that Whitehead suffered from a "borderline personality disorder" and that "handing the baby out of the window to Mr. Whitehead is an unpredictable, impulsive act that falls under this category." Then, citing (among other things) that Whitehead dyed her hair to conceal its premature whiteness, he added the diagnosis of "narcissistic personality disorder."

Boston psychiatric social worker Dr. Phyllis Silverman refuted Schechter's characterization of Whitehead's behavior as "crazy":

Mrs. Whitehead's reaction is like that of other "birth mothers" who suffer pain, grief, and rage for as long as thirty years after giving up a child. The bond of a nursing mother with her child is very powerful.