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In Re Baby M

Citation. In re Baby M, 109 N.J. 396, 537 A.2d 1227, 77 A.L.R.4th 1 (N.J. Feb. 3, 1988)
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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.


Is the surrogacy contract enforceable, and if not, who should gain custody of Baby M?


The surrogacy contract is unenforceable, but the Sterns should retain custody based upon the best interests of the child.
Statutory Provisions. The surrogacy contract conflicts with: 1) laws prohibiting the use of money in connection with adoptions; 2) law requiring proof of parental unfitness or abandonment before termination of parental rights is ordered or an adoption is granted; and 3) laws that make surrender of custody and consent to adoption revocable in private placement adoptions. Considering issue 1, considerable care was taken to not violate the prohibition. The money paid to Mrs. Whitehead was stated to be for her services, not for adoption. The payment to the ICNY was stated to be for legal representation advice, administrative work, and other services. However, it seems clear that the money was paid and accepted in connection with an adoption. The prohibition is strong, constituting a high misdemeanor, because baby-selling potentially results in the exploitation of all parties involved. Considering issue 2, New Jersey law provides for such termination only where there has been a vo
luntary surrender of a child to an approved agency or the Division of Youth and Family Services (DYFS) accompanied by a formal document acknowledging termination of parental rights, or where there has been a showing of parental abandonment or unfitness. In this case termination was obtained by claiming the benefit of contractual provisions. Since the termination was invalid, the adoption could not properly be granted. Considering issue 3, the provision stating Mrs. Whitehead agrees to surrender custody and terminate all parental rights is intended to be an irrevocable consent, as it contains no clause giving her a right to rescind. The Legislature only provided for one irrevocable consent by statute, a consent to surrender of custody and placement with an approved agency or with DYFS. The contract was designed to circumvent state statutes.

Public Policy Considerations. Public policy has always been that children should remain with and be brought up by both of their natural parents. The contract violates state policy that the rights of natural parents are equal concerning their child. There was no counseling of the natural mother, no evaluation, and no warning. Worst is the contract’s total disregard for the best interests of the child. There is no inquiry to determine the fitness of the Sterns or Mrs. Stern as an adoptive parent, their superiority to Mrs. Whitehead, or the effect on the child. This is the sale of a child, the only mitigating factor being that one of the purchasers is the father. The differences between adoption and a surrogacy contract are important. It is unlikely that surrogacy will survive without money, while there remains a steady supply of potential adoptions. Adoption does relieve the natural mother of the financial burden of the infant, in some sense the equivalent of payment, but the
use of money in adoptions does not produce the problem. In surrogacy, the problem is caused by and originates with the offer of money. Also, the law prohibiting the use of money in adoptions and the built-in financial pressure of unwanted pregnancy does not lead the mother to the highest paying adoptive parents. In surrogacy, the highest bidders will become the adoptive parents regardless of suitability. The main difference in that unwanted pregnancy is unintended while the surrogacy is intended is not significant. The essential evil is taking advantage of a woman’s circumstances to take away her child. Consent is irrelevant, some things money cannot buy.

Termination. The fact that a child would be better off with one set of parents than with another is an insufficient basis for terminating the natural parent’s rights. There is no basis to warrant termination of Mrs. Whitehead’s parental rights.



To assert that Mr. Stern’s right of procreation gives him the right to the custody of Baby M would be to assert that the constitutional right of procreation includes a constitutionally protected contractual right to destroy someone else’s right of procreation. Mr. Stern also contends he was denied equal protection of the laws by the State’s statute granting full parental rights to a husband in relation to the child produced, with his consent, by the union of his wife with a sperm donor. The claim is really that of Mrs. Stern, she is precisely in the same position as the husband in the statute. The State has more than a sufficient basis to distinguish between the two situations so as to justify automatically divesting the sperm donor of his parental rights without automatically divesting a surrogate mother. Mrs. Whitehead claims the right to the companionship of her child, which is a constitutionally protected fundamental interest. Having held the contrac
t invalid, and finding no other grounds for the termination of Mrs. Whitehead’s parental rights, nothing remains of her constitutional claim.

Custody. Because the contract has been disposed of, the dispute is now between two couples over the custody of a child produced by the artificial insemination of one couple’s wife by the other’s husband. Under Parentage Act the claims of the natural father and the natural mother are entitled to equal weight. The Whiteheads claim that even if it is in the child’s best interests to award custody to the Sterns, the court should not do so because it would encourage surrogacy contracts. However, the declaration that the surrogacy contract is unenforceable is sufficient. The Whiteheads also contend the award of custody to the Sterns pendent elite was erroneous and should not be allowed to affect the final custody decision. This Court disagrees with the premise, that determining custody a court should decide what the child’s best interests would be if some hypothetical state of facts had existed. Eleven experts testified that the trial court’s decision awarding custody to the Stern
s should be affirmed. The custody conclusion is based strongly on testimony contrasting the family life of the Whiteheads and the Sterns and the personalities and characters of the individuals. The stability of the Whitehead family life was doubtful, with their finances in serious trouble. Mrs. Whitehead’s contempt for professional help, coincided with her feelings of omnipotence in a way that could be devastating to a child who will likely need such help. The Sterns have no other children, but all indications are that their household and personalities promise a much more likely foundation for Melissa to grow and thrive. During the 1.5 years of her life, she has done very well, and their relationship is strong. The household is stable, the finances more than adequate, the friends supportive, and the marriage happy. They are loving, giving, nurturing, open-minded people. We conclude based on this that Melissa’s best interests call for custody in the Sterns. This Court also not
es that only in an extreme, truly rare, case should the child be taken from its mother pendente lite.

Visitation. This Court’s reversal requires delineation of Mrs. Whitehead’s rights to visitation. Several experts and the guardian ad litem argue that visitation should be suspended until Melissa reaches majority. This is not a divorce case where visitation is almost invariably granted. Nonetheless, Mrs. Whitehead is the natural and legal mother of Melissa. This Court concludes that Mrs. Whitehead is entitled to visitation at some point.


The Court found that the surrogacy contract was unenforceable because it violated state statutes and public policy. Nonetheless, based solely on the best interests of the child custody was granted to the Sterns, with visitation rights to Mrs. Whitehead.

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