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In the Matter of Baby M


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

    Brief Fact Summary. Surrogate mother Whitehead (Defendant) declined to turn her baby over to the Sterns, even though she had contracted to do so.

    Synopsis of Rule of Law. A surrogate mother contract is not enforceable.

    Facts. The Sterns were an infertile couple as Mrs. Stern was not capable of bearing children.  The couple contracted with Whitehead (Defendant) for her to be inseminated with sperm from Mr. Stern (Plaintiff), carry the baby to term, and then give the baby up upon birth.  Defendant was to be compensated.  Following the birth, Defendant refused to hand the baby over.  A custody hearing was held.  The trial court enforced the surrogacy contract and ordered Defendant to surrender the baby, but she refused to do so.  An appeal of the custody order was taken.

    Issue. Is a surrogate mother contract enforceable?

    Held. (Wilentz, C.J.)  No.  A surrogate mother contract is not enforceable.  As a matter of public policy, private placement of children, though not illegal, is highly disfavored.  Beyond that, a surrogacy contract runs afoul of state laws prohibiting the use of money connected to adoptions, laws that require proof of parental unfitness prior to termination of parental rights, and laws that make surrender of custody and consent to adoptions revocable in private placement adoptions.  In a surrogacy contract, money is the sine qua non of the contract, which clearly violates legislatively expressed policy.  In addition, a surrogacy contract allows the termination of parental rights without a finding of lack of fitness, which is exactly what happened to Defendant in this case.  Finally, the surrogacy contract removes the legislatively mandated revocability requirement, which Defendant definitely would have exercised here.  Except for the statutory issues, the constitutional right to procreate is not involved, as this consists only of bringing a child into existence.  Following birth, other issues of interest to the state may enter the analysis, as they have done in this case.  For these reasons, surrogacy contracts are not valid, including this one.  [The court, employing a best interests of the child test, awarded Plaintiff custody but reinstated Defendant’s parental rights, and remanded for a visitation decree.]

    Discussion. For the most part, surrogacy contracts have met with disfavor.  The main reason is that it is perceived to degrade women, making them into incubators.  Surrogacy agreements have also been criticized as baby selling.  Finally, some have even said that the contract is similar to an indentured servitude agreement that would be illegal under the Thirteenth Amendment.


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