In the Matter of Baby M., 109 N.J. 396 (1988)

TRIAL COURT DECISION: In the Matter of BABY "M", 217 N.J.Super.Ch. 313 (N.J.Super.Ch. 1987)


ON REMAND: In the Matter of Baby M, 225 N.J. Super 267 (N.J.Super.Ch. 1988)

CASE: Contract dispute arising out of a surrogacy contract.

FACTS: The Sterns entered into a surrogacy agreement with Mary Beth Whitehead in which she agreed to bear the child of Mr. Stern (through artifical insemination) in exchange for costs plus $10,000 and to terminate her rights as a mother (before the baby was even conceived). Upon the birth of the baby (Melissa) and the subsequent handover to the Sterns as agreed, Mrs. Whitehead "became deeply disturbed, disconsolate, stricken with unbearable sadness." She persuaded the Sterns to give her one last week with the child by telling them that she was suicidal (so they handed their child over to a suicidal woman) and she fled to Florida with her husband and the baby. There, they took evasive manuevers to avoid detection before being ordered to turn over the child. The Sterns filed suit, seeking possession and ultimate custody of the child and enforcement of the surrogacy contract (in which the child would be placed permanently in their custody and Mrs. Whitehead's parental rights would be permanently terminated). After a lengthy trial, the court ordered that Mrs,. Whitehead's parental rights be terminated and that sole custody of the child be granted to Mr. Stern. The court also entered an order allowing the adoption of Melissa by Mrs. Stern, all in accordance with the surrogacy contract. Mrs. Whitehead appealed.

WHITEHEAD ARGUES: Surrogacy contract is invalid because:

  1. It conflicts with public policy since it guarantees that the child will not have the nurturing of of both natural parents, presumably New Jersey's goal for families.
  2. It deprives the mother of her constitutional right to the companionship of her child.
  3. It conflicts with statutes concerning termination of parental rights and adoption.

She claims primary custody with visitation rights for Mr. Stern, both on a best-interests basis as well as on the policy basis of discouraging surrogacy contracts. The standard for determining best interests where the infant resulted from a surrogacy contract is that the child should be placed with the mother absent a showing of unfitness.

STERNS ARGUE: Contract is valid and should be enforced. They have a right to privacy, which includes the right of procreation and the right of consenting adults to deal with matters of reproduction as they see fit. Given the circumstances, the child is better off in their custody with no residual parental rights reserved for Mrs. Whitehead. Furthermore, the statute which grants 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 denied him equal protection of the laws.

COURT SAYS: Contract is void, remand for determination of Mrs. Whitehead's visitation rights.

HOLDING: Prebirth contract under which a woman agrees to be impregnated, through artificial insemination, by a man not her husband and to give up, irrevocably, all parental rights upon the birth of the resulting child for the purpose of permitting the natural father and his wife to adopt the child as their own where the woman is to be paid $10,000 and where there is no showing that the woman is an unfit mother or that the natural father and his wife are fit parents is void as counter to laws governing adoption and termination of parental rights and the public policies of keeping children with both of their natural parents and of treating the rights of natural parents equally concerning the custody of children.


  • Adoption through private placement is "very much disfavored" in New Jersey law.
  • The use of money for the purpose of adoption through private placement is illegal and perhaps criminal.
  • A contract under which the mother, before the baby is born, agrees to surrender all parental rights to the child is coercive.
  • In a case such as this, the best interests of the child become secondary to the market concerns of facilitating an adoption: the child is "sold" without regard for whether the purchasers will be suitable parents; the natural mother does not receive the benefit of counseling and guidance; and the monetary incentive to sell may, in some circumstances, make her decision less voluntary.
  • The adoptive parents may not be fully informed of the surrogate's medical history.
  • Statues provide that a surrender of parental rights can only occur where there has been a voluntary surrender of a child to an approved agency or to the state, accompanied by a formal document acknowledging termination of parental rights or where there has been a showing of parental abandonment or unfitness.
  • Under the contract, the rights of the mother are irrevocably termination before she knows the strength of her bond with the child. Therefore, she cannot give informed consent.
  • There is a danger that surrogacy will be a benefit to the rich at the expense of the poor.
  • Mr. Stern was never denied the right to procreate because the custody, care, companionship and nurturing that follow birth are not parts of the right to procreation. To assert that Mr. Stern's right to procreation gives him the right to the custody of Baby M. would be to assert that Mrs. Whiteheard's right to procreation does not give her the right to the custody of Baby M.; it would be to assert that the constitutional right of procreation includes within it a constitutionally protected contractual right to destroy somebody else's roght of procreation.
  • EQUAL PROTECTION: The state has a sufficient basis for distinguishing between a sperm donor and a surrogate mother, even if the only difference is between the time it takes to provide sperm for artificial insemination and the time invested in a nine-moth pregnancy.

COMMENTARY: In his text "Property Law: Rules, Policies and Practices," Prof. Joseph Singer cautioned students to recognize the distinction between a void contract and one that is voidable. The New Jersey Supreme Court declared this contract void, which is to say, that the contract never existed. Other courts have treated such contracts as voidable by the surrogate. The Supreme Court of Kentucky held that the birth mother in a surrogacy arrangement has the right to void the contract if she changes her mind during pregnancy or immediately after birth. Surrogate Parenting Associates v. Commonwealth ex. rel. Armstrong, 704 S.W.2d 209 (Ky. 1986). The California Supreme Court has held that surrogate mother contracts are specifically enforceable, at least where both the egg and the sperm are donated by individuals other than the surrogate mother who bears the child. Johnson v. Calvert, 851 P.2d 776 (Cal. 1993). The Johnson Court dismissed some of the public policy concerns cited by the Baby M. Court, saying "there has been no proof that surrogacy contracts exploit poor women to any greater degree that economic necessity in general exploits them by inducing them to accept lower-paid or otherwise undesirable employment." Further, the Court wrote, "no evidence is offered to support" the claim that surrogacy will foster the attitute that children are mere commodities. "The limited data available seem to reflect and absence of significant adverse effects of surrogacy on all participants." The argument that a woman cannot give informed consent to gestate and deliver a baby "carries overtones of the reasoning that for centuries prevented women from attaining equal economic rights and professional status under the law. To resurrect this view is both to foreclose a personal and economic choice on the part of the surrogate mother, and to deny intending parents what may be their only means of procreating a child of their own genetic stock."

SO WHAT HAPPENED? The family court determined that Mary Beth Whitehead Gould (she had remarried) should be granted "unsupervised, uninterrupted, liberal visitation." In the event that the parties not determine what that means, the court decreed the following:

Overnight Visitation. Commencing April 1989, the additional biweekly visitation days shall be expanded to two days and Melissa shall remain overnight with her mother.

Holiday Visitation. The court recognizes that the parties have two distinct family units and finds that it is in Melissa's best interest that she spend Christmas Day, Mother's Day, and Father's Day with the Sterns. Because children normally have birthday parties with their friends, Melissa shall also spend her birthdays with the Sterns. Melissa shall spend one day during the Christmas holidays and the following alternate holidays with her mother: Easter Day, Memorial Day, Fourth of July, Labor Day, and Thanksgiving Day. Melissa shall spend Jewish holidays of her father's choice with him.

When a conflict occurs between a regular visitation day and a holiday Melissa will spend with her father, a mutually-convenient day for visiting with her mother shall be substituted.

Vacation Visitation. Commencing with the summer of 1989, Melissa shall spend one two-week vacation period with her mother which shall be selected no later than March 1 each year.

Further, the court enjoined and restrained parties from publicly discussing their relationship with Melissa, or her personal activities, or from selling "movie rights" in fictional portrayal of their activities without prior approval of court, but said the parties would not be restrained from publicly commenting in issues of surrogate parenting and their personal experiences so long as they did not affect child's right to privacy.

SINCE THEN, the multiple sclerosis that persuaded the Sterns to seek out a surrogate in the first place has caught up with Mrs. Stern, who now uses a wheelchair, according to a report in the March 28, 1999, issue of the Mail on Sunday. The report described Melissa ("Sassy" as she's known to her friends) on her 13th birthday and quoted Mary Beth Whitehead Gould as saying that Mrs. Stern was "selfish" to have contracted to bring a child into the world when she was sick. Gould said she would not have agreed to the deal had she known that she was dooming Sassy to a life of "obligation" and the pain of having lost a mother to a debilitating disease. The article noted that Sassy still calls Whitehead-Gould "mother" and Mrs. Stern by her first name (Betsy), and that the Sterns have refused to grant media interviews out of concern for their daughter's privacy. Another report described how a threat by the Sterns' lawyer persuaded Dateline NBC to not broadcast a photo of Melissa at age 11 that they had received from Gould.

OTHER STATES: According to the March 28, 1999, edition of The Asbury Park Press, Indiana, Louisiana, and Kentucky have decided that surrogate childbearing contracts are legally unenforceable under any circumstances, and that, in Michigan and Nebraska, it is a crime punishable by fines or imprisonment to enter into a contract involving compensation other than the mother's medical expenses.