Citation. In re Baby M, 109 N.J. 396, 537 A.2d 1227, 1988 N.J. LEXIS 1, 77 A.L.R.4th 1 (N.J. Feb. 3, 1988)
Brief Fact Summary. The Sterns entered into a surrogacy contract with the Whiteheads whereby Mrs. Whitehead would bear the child of Mr. Stern through artificial insemination and relinquish custody of the child to the Sterns upon birth. Once the child was born Mrs. Whitehead found herself unable to part with the child, and sought to retain custody.
Synopsis of Rule of Law. The surrogacy contract is unenforceable due to violation of both statutory law and public policy. Custody must be determined based upon the best interests of the child.
In 1985 William Stern and Mary Beth Whitehead entered into a surrogacy contract stating that Stern’s wife, Elizabeth, was infertile, that they wanted a child, and Mrs. Whitehead was willing to provide that child as mother with Mr. Stern as father. Through artificial insemination using Mr. Stern’s sperm, Mrs. Whitehead would become pregnant. Mrs. Whitehead would deliver the born child to the Sterns and terminate her maternal rights so that Mrs. Stern could thereafter adopt the child. Mrs. Whitehead’s husband, Richard, was also a party to the contract; Mrs. Stern was not. Mr. Whitehead promised to do all acts necessary to rebut the presumption of paternity. The contract gave Mrs. Stern sole custody in the event of Mr. Stern’s death. Mr. Stern agreed to pay Mrs. Whitehead $10,000 after the child’s birth, on its delivery to him. He agreed to pay $7,500 to the Infertility Center of New York (ICNY), and ICNY arranged for the surrogacy contract. The history of the parties sug
gests good faith. However, almost from the moment of birth Mrs. Whitehead realized she could not part with the child. She nonetheless turned her child over to the Sterns on March 30 at the Whiteheads’ home. Later that evening Mrs. Whitehead was stricken with unbearable sadness. The Sterns, concerned that she might commit suicide turned the child over to her on her word that she would return her in a week. It became apparent that Mrs. Whitehead could not return the child, and Mr. Stern filed a complaint seeking enforcement of the surrogacy contract. An order in favor of Stern was entered, and the process server, aided by police, entered Mrs. Whitehead’s home to execute the order. Mr. Whitehead fled with the child. The Whiteheads fled to Florida with Baby M. Police in Florida forcibly removed the child from her grandparent’s home and turned the child over to the Sterns. At trial, the court held that the surrogacy contract was valid, it ordered Mrs. Whitehead’s parental rights
be terminated, that sole custody be granted to Mr. Stern, and immediately entered an order allowing the adoption of Melissa by Mrs. Stern. The trial court devoted the major portion of its opinion to the question of the baby’s best interests, finding that specific performance would not be granted unless that remedy was in the best interests of the child. On the question of best interests, the Supreme Court agreed substantially with both the trial court’s analysis and conclusions. However, the Court differed in its review and analysis of the surrogacy contract. Issue.
Is the surrogacy contract enforceable, and if not, who should gain custody of Baby M?