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In the Matter of Baby M

    Brief Fact Summary. Whitehead (D) went back on her contract to have and to then give up her baby fathered by Stern (P) for him to raise with his wife.

    Synopsis of Rule of Law. A surrogacy contract in which a woman agrees to have a child and to surrender it is an invalid one.

    Facts. Elizabeth Stern (P) feared to give birth to a baby because of a possible genetic defect, and yet the Sterns desired a baby. They made a contract with Whitehead (D) to have the latter inseminated with William Stern’s sperm, and that she would give up the baby for $10,000. However, after she had the baby, she refused to surrender it. After a long struggle for custody the Sterns got custody of the baby and then filed against Whitehead to have the contract enforced and permanent custody awarded to them. The trial court held that the contract was valid, and gave custody to the Sterns. Whitehead’s parental rights were completely terminated. Whitehead appealed.

    Issue. Is a surrogacy contract in which a woman agrees to have a child and to surrender it an invalid one?

    Held. (Wilentz, C.J.) Yes. A surrogacy contract in which a woman agrees to have a child and to surrender it is an invalid one. It is contradictory to at least three classes of law: (1) Laws which prohibit the use of money in adoption matters; (2) Laws which make demonstration of parental unfitness mandatory before terminating parental rights; (3) Laws which make surrender of custody over a child and consent to adoption revocable. A second point is that such contracts also contradict other prominent and well-accepted principles of child custody, even if such principles have not become codified in law. The most important principle among these is that deciding where a child is to be placed must be determined in the best interests of the child. This consideration has no place in the contract. Another principle violated here is that the natural father be treated on par with the natural mother, whereas the contract favors the father over the mother. Again, such a contract savors too strongly of baby selling, which is in conflict with public policy. All these points go on to prove that the said contract is void. (In the court’s final verdict, it decided to give custody of the child to the Sterns, keeping its best interest in view, but provided full parental rights to Whitehead including visitation rights.)

    Dissent. N/A

    Concurrence. N/A

    Discussion. This was one of the most widely followed cases in 1987 and 1988, being the first big case on the validity of surrogacy contracts. There has been little lawmaking activity in response to this decision, and all of it tended to establish the court ruling. This decision does not prevent voluntary arrangements to be made in this manner without payment to the natural mother.


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