in Re Baby M

In 1988 the New Jersey Supreme Court declared surrogacy contracts void against state public policy but then determined that the best interests 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, 109N.J. 396, 537 A.2d 1227 (N.J. 1988).

Mary Beth Whitehead entered into a contract 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 Elizabeth 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, surrendered to the Sterns, and her parental rights had been terminated. The contract also provided 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 exparte 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 RESTRAINING ORDER and an order requiring the Whiteheads to surrender Melissa to William Stern. The Whiteheads refused to surrender the child, instead removing her from the state of New Jersey 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 surrogacy 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 testified 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 separated 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 Whiteheads 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 circumstances 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 household, while the Whitehead household was dominated by Mary Beth Whitehead, who had established a pattern of dealing with her children by "inhibiting their development of independence."

The trial lasted 32 days and consisted of testimony from 23 lay witnesses and 15 expert witnesses. Ultimately, the trial judge declared the surrogacy contract valid and enforceable, awarded custody of Melissa to William and Elizabeth 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. Specifically, 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 different bases: (1) it conflicted with existing New Jersey statutes and (2) it violated public policy.

The high court ruled that the surrogacy contract 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 principles 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 interests 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 doubtful, 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 visitation rights as the trial court deemed appropriate. 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 lawfulness 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 surrogacy 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 prohibits 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 legislation addresses one particular aspect of surrogacy contracts. For example, Alabama, Iowa, and West Virginia have exempted surrogacy agreements 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 Hampshire, 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 acknowledging 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.