In the Matter of Baby M: 1987

Events did not go as outlined on paper. Mary Beth Whitehead gave birth to a daughter on March 27, 1986. She refused the $10,000, named the baby "Sara Elizabeth Whitehead," and took her home. The Sterns demanded the baby and took her home on Easter Sunday, March 30. Whitehead got her back on March 31 and, 12 days later, told the Sterns she could never surrender her daughter. The Sterns, determined to enforce the contract, hired attorney Gary Skoloff. The first time the police showed up, Whitehead presented a birth certificate for her daughter, Sara Elizabeth Whitehead, and the police left without "Melissa Elizabeth Stern." The next time the police knocked on the door, Mary Beth Whitehead passed the infant to her husband through an open window and begged him to run. The battle was on.

By the time the trial commenced on January 5, 1987, a guardian ad litem, Lorraine Abraham, had been appointed for the infant. Temporary custody of the child known as "Baby M" had been awarded to the Sterns, and Mary Beth Whitehead had been granted two-hour visits each week "strictly supervised under constant surveillance … in a sequestered, supervised setting to prevent flight or harm." She had also been ordered by Judge Harvey Sorkow to discontinue breast-feeding the infant.

The contract itself was considered first. The Sterns' attorney, Gary Skoloff, said: "The issue to be decided in this court is whether a promise to make the gift of life should be enforced.… Mary Beth Whitehead agreed to give Bill Stern a child of his own flesh and blood." He then explained 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."

Whitehead's attorney, Harold Cassidy, countered 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 concluded, "not because Betsy Stern is infertile but because one woman stood up and said there are some things that money can't buy." Dr. Gerard Lehrer, a neurologist with a teaching position at Mount Sinai School of Medicine then testified that Betsy Stern had merely "a very, very, very slight case of MS, if any."

Custody was quickly raised, and Skoloff claimed that his clients were exclusively entitled to the baby, under contract law and because it would serve the child's best interests: "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 appealed directly to Judge Sorkow: "Your Honor, under both the contract theory and the best-interest theory, you must terminate the rights of Mary Beth Whitehead and allow Betsy Stern to adopt.… Terminate the parental rights of Mary Beth Whitehead and allow Bill Stern and Betsy Stern to be Melissa's mother and father."

Lorraine Abraham testified that she "knew the day would come when I would have to stand before this court [as guardian ad litem] and present a recommendation." She explained that she had consulted three experts while trying to make her decision: Dr. Judith Brown Greif, a social worker; Dr. David Brodzinsky, a psychologist; and Marshall Schechter, a psychiatrist. The three, Abraham continued, "will… recommend to this court that custody be awarded to the Sterns and visitation denied at this time." As for her own opinion, Abraham concluded, "I am compelled by the overwhelming weight of their investigation to join in their recommendation."

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

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

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

Stern answered: "That is correct. I do not want to visit."

Skoloff then tried to demonstrate that Mary Beth Whitehead would be an unfit mother. Whitehead had fled to Florida and hidden there with the baby for a time. Skoloff characterized this as the action of an unstable person. Then he played a tape recording of a phone conversation between William Stern and Mary Beth Whitehead:

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.

Mary Beth Whitehead took the stand the next day. Randy Wolf asked her, "If you don't get custody of Sara, do you want to see her?"

Whitehead answered,

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.

The prominent child psychologist Dr. Lee Salk testified on behalf of the Sterns: "[T]he legal term that's been used is 'termination of parental rights,'" he said,

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.

On February 23, Marshall Schechter, one of the experts consulted by Lorraine Abraham, testified. As Abraham had earlier indicated, he thought the Sterns should be awarded custody. Schechter also said that Whitehead had a "borderline personality disorder" and said that "handing the baby out of the window to Mr. Whitehead is an unpredictable, impulsive act that falls under this category." Finally, he testified that Whitehead dyed her prematurely white hair, evidence of a "narcissistic personality disorder."

The next day, Dr. Phyllis Silverman, a Boston psychiatric social worker, defended Whitehead's flight to Florida and "crazy behavior." She testified:

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 a child is very powerful.