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.
The court must find (1) that the child's health and development has been or will be seriously impaired by the parenting relationship; (2) the parents are unable or unwilling to eliminate the harm and delay in permanent placement will add to the harm; (3) alternatives to terminating parental rights have been thoroughly explored and exhausted, including efforts to help the parents cure the problems that led to the placement; and (4) that termination of parental rights will not do more harm than good.View Full Point of Law
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.)
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.