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Summer Reading: New Books With a Jersey Connection -- 'Courting Justice'

Among the '10 New Jersey Cases That Shook the Nation" detailed in this volume is the infamous 'In the Matter of Baby M,' the surrogacy decision.

1.4 Courting Justice

Whether due to its dynamic and varied population or the state Supreme Court’s esteemed reputation and independence, New Jersey has been the setting for some of the most influential court opinions in the country. With "Courting Justice: New Jersey Cases that Shook the Nation," Paul Tractenberg, founder of the Education Law Center and Rutgers-Newark Law professor, selected 10 landmark decisions that had an impact beyond the state’s borders. These decisions focused on issues as varied as consumer protections, education funding, the right to die with dignity, affordable housing, and sexual harassment. In this excerpt, “In the Matter of Baby M,” written by Suzanne A. Kim, associate dean of Rutgers Law-Newark, the court looked at the issue of child surrogacy and parental rights. The excerpt examines the court’s reasoning in this notorious case and also lets us know what happened to Mary Beth Whitehead, the Sterns, and the child known as Baby M.

In the Matter of Baby M (1988)

Reining in Surrogate Parenting and Defining Children’s Best Interests

The case of In the Matter of Baby M has been called the “custody trial of the twentieth century.”1 The baby girl at its center was born on March 27, 1986, in the coastal town of Long Branch, New Jersey.2 Her birth certificate listed her name as Sara. The certificate also listed her mother as Mary Beth Whitehead, who carried and gave birth to her, and her father as Richard Whitehead, Mary Beth’s husband. Unlike the other babies born at Monmouth Medical Center that day, however, Sara had two additional visitors; they also considered themselves her father and mother.

Sara’s genetic father was William Stern, known as Bill. Bill Stern and his wife, Elizabeth, known as Betsy, came to visit the newborn baby daughter they would call Melissa. In the Matter of Baby M was the case in which the New Jersey Supreme Court decided who were the parents of the baby known as both Sara and Melissa.

While the story of the struggle over the baby, who came to be known as Baby M, drew a media frenzy, Baby M’s origins were not all that extraordinary, at least not technologically. She was born of what the law has called traditional sur- rogacy, by which a woman is inseminated with semen. The surrogate provides both her egg and womb. The technology is essentially the same as the artificial insemination used by millions of couples throughout the world. The difference between traditional surrogacy and more standard uses of artificial insemination is that, through a surrogacy agreement, the genetic and gestational mother con- tracts to relinquish her parental rights to the child’s genetic father.

At issue in the Baby M case was whether the agreement reached between Bill Stern and Mary Beth Whitehead to give him full parental rights over the child they conceived through artificial insemination and whom Whitehead car- ried and delivered, was valid. And, if the agreement was not valid, who should have custody of the baby?

The Story

The tale of Baby M often starts with a focus on the Sterns or the Whiteheads. But these couples did not come together by chance. The nation would probably have never heard of Baby M had Noel Keane not brought Mary Beth Whitehead and the Sterns together.

Commonly known as the “father of surrogate motherhood,” Michigan attor- ney Noel Keane founded the Infertility Center of New York (ICNY) in 1981.3 Keane sought out surrogate-mother candidates through ads in college newspapers after mainstream newspapers rejected his requests to purchase ad space.4 He arranged his first surrogacy in 1976 in Michigan, where the law did not expressly forbid it. Thereafter, Keane quickly gained national status as a pioneer in sur- rogacy, frequently appearing in popular media outlets.

Keane was committed to surrogacy because, as he said, “I believe there are thousands of people who want it and need it, including surrogate mothers. I intend to help them. . . . If you have not been there, if you have not wanted children or had no problem in having your own, then you cannot presume to know what drives these childless people.”5 He often situated his commitment to surrogacy in the context of his Catholic beliefs, although the Catholic Church does not approve of surrogacy.6

Keane was a middleman. He found mothers to act as surrogates and matched them up with couples who wanted to have children but could not. For this service, he charged a nonrefundable $7,500 fee paid upfront by the prospective parents. At the time of the Baby M case, Keane was one of a small number of lawyers and doctors arranging surrogate births in the United States. New York was a good place to do this in 1984, the year the Sterns signed a con- tract with ICNY and began the process of identifying a surrogate mother; New York law, like Michigan’s, did not prohibit surrogacy. Indeed, while surrogacy was certainly not unheard of, its legal status was unclear at the time Keane began to arrange surrogate births. Few courts had considered explicitly whether and how to enforce such arrangements if they went sour, as would happen with Whitehead and the Sterns.

At the time Mary Beth Whitehead learned of ICNY and its need for surro- gate mothers, she was a twenty-six-year-old stay-at-home mother living in Brick Township, New Jersey, with Richard Whitehead, her husband of eleven years, and their two children. Mary Beth had married young, when she was sixteen, and Richard was twenty-four. They met at the deli where she worked as a wait- ress. The daughter of Joseph and Catherine Messer, she was the sixth of eight children and had dropped out of high school at fifteen.

Once the Whiteheads had their two children, Richard underwent a vasec- tomy. The early years of their marriage have often been characterized as tumul- tuous.7 The couple struggled over money, moved frequently, and separated at one point.8 By the early 1980s, the couple’s situation had stabilized, with Richard holding a job as a garbage truck driver, and the couple owning a home (albeit heavily mortgaged).

On the other side of the struggle over Baby M were the Sterns. Bill and Betsy had met while they were graduate students at the University of Michigan. At the time, Bill was pursuing a doctorate in biochemistry, and Betsy was simul- taneously pursuing a doctorate in human genetics and a medical degree. They were both twenty-eight when they married in 1974.

By 1985, the year the Sterns met the Whiteheads, Bill and Betsy lived in the affluent town of Tenafly, New Jersey.9 The Sterns had no biological children. After marrying, they had planned to wait to start a family until Betsy finished her med- ical training. After Betsy completed her medical residency, she showed signs of having multiple sclerosis. Concerned about the potential medical complications surrounding pregnancy, the couple decided not to have a biological child.10

They considered adoption but were concerned about their ability to adopt because of their age and the interfaith nature of their marriage. Bill had been born in Berlin, Germany, in 1946, and his parents were the only members of his extended Jewish family to survive the Holocaust. By the time Bill and Betsy learned of ICNY, both of Bill’s parents had died. As an only child with no other surviving relatives, Bill wished to have biological offspring.

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