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

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.

By August of 1984, the Sterns had begun considering surrogacy as an alter- native to adoption. They had initially wanted a surrogate mother who would carry Betsy’s egg fertilized with Bill’s sperm. But since the in vitro fertilization this would require was still considered experimental, they did not view this as a viable option. After seeing an advertisement placed by ICNY, the Sterns signed up with the surrogacy center.

Several months earlier, Whitehead had responded to an ad placed by ICNY in her local newspaper. It stated: “surrogate mother wanted, Couple unable to have children willing to pay $10,000 fee and expenses to woman to carry husband’s child. Conception by artificial insemination. All replies strictly confidential.”11

In her memoir about the eventual legal battle with the Sterns over the par- entage of the baby to whom she would give birth, Whitehead described her motivations as both altruistic and financial. She hoped to do something to “improve the lives of an infertile couple,” and to help her family economically.12

The Whiteheads met the Sterns at a restaurant in New Brunswick, New Jer- sey. During the meeting the couples discussed the potential surrogacy arrange- ment. The Sterns were pleased that Mary Beth Whitehead said that all she would want was an “annual picture and letter report of progress” about the baby.13 Richard Whitehead reportedly even jokingly said he would leave his wife if she kept the baby.14

In February 1985, Mary Beth Whitehead entered into a surrogacy agree- ment with Bill Stern, in which she agreed to be artificially inseminated with Bill’s sperm, deliver a child, and give the child to him. She was to renounce any parental rights to the child. She was to “assume all risks, including the risk of death, which are incidental to conception, pregnancy, childbirth, including but not limited to, postpartum complications.”15

Bill had the right to terminate the contract without compensation to Mary Beth if she experienced a miscarriage in the first four months of her pregnancy. Also, if a test of the fetus demonstrated that it was “physiologically abnormal,” the contract allowed for abortion “upon demand of William Stern.”16

Bill was to be listed on the birth certificate as the child’s father, and he was to name the child. If he died prior to the child’s birth, Betsy was to gain cus- tody of the baby. Upon delivery of the child, Bill was to pay Mary Beth $10,000, in addition to any medical expenses not covered by the Whiteheads’ medical insurance. Mary Beth was entitled to $1,000 if her pregnancy ended after the fourth month in stillbirth, miscarriage, or mandated abortion.

After a series of inseminations with Bill Stern’s semen, Mary Beth White- head became pregnant. The relationship between the Sterns and Whitehead was cordial initially, although clashes arose over whether she should submit to an amniocentesis and take particular medications.

Whitehead wrote in her memoir of the baby’s birth, “It wasn’t until the day I delivered my daughter that I fully comprehended the fact that it wasn’t Betsy Stern’s baby. It was the joy, and the pain, of giving birth that finally made me realize I wasn’t giving Betsy Stern her baby, I was giving her my baby.”17 The day after the baby was born, Whitehead told the Sterns of her inability to give Sara to them, and that she did not think she could go on living if she had to give up the baby. She declined the $10,000 to which she was contractually entitled.

Whitehead did, however, give the baby to the Sterns two days later. The day after that Whitehead went to the Stern residence in great distress and asked to have the baby for a week. Fearing that she would take her own life, they gave her the baby. What followed was a two-year struggle that drew national attention over the parentage of Baby M. During this time, the Sterns repeatedly sought the baby’s return. The Whiteheads repeatedly refused.

The Sterns sought and obtained a paternity order declaring Bill Stern to be the baby’s father from the Florida courts, where Whitehead had previously taken the baby for a brief visit. In addition, they filed a civil complaint in a New Jersey court seeking to enforce the surrogacy agreement between Mary Beth Whitehead and Bill Stern. Based on the Florida paternity order, the Sterns obtained a New Jersey court order transferring custody of the baby to Bill.

When the New Jersey police presented the Whiteheads with an order to sur- render the baby, the Whiteheads showed the police the baby’s birth certificate with Mary Beth and Richard Whitehead listed as her parents. During the ensu- ing confusion, Mary Beth Whitehead secretly handed the baby out a window in their home to Richard Whitehead. Baby M traveled with the Whiteheads from New Jersey to Florida and over the course of nearly three months stayed in fif- teen hotels, motels, and relatives’ homes.18 During this time, the Sterns hired a private detective to locate the Whiteheads and the baby.

After Mary Beth Whitehead became ill in Florida and had to enter the hos- pital, the Florida police took custody of the baby while she was staying at her maternal grandparents’ home. Nearly three months after being handed out of the Whiteheads’ window, Baby M returned to New Jersey. The Sterns obtained tem- porary custody and Mary Beth Whitehead was granted two supervised visitation periods per week. On January 5, 1987, when the baby was nearly nine months old, the trial in the case began in a New Jersey state court before Judge Harvey Sorkow.

The Court Case

Whether Baby M belonged with Bill Stern or Mary Beth Whitehead depended on whether the agreement they reached before Mary Beth became pregnant with the baby was enforceable and what the courts thought was in the “best interests of the child.” Regarding the contract, Bill Stern argued that the contract was enforceable and binding. Whitehead argued that it was not. Moreover, each side argued that it was in the baby’s “best interests” to be with them.

Interestingly, the trial court and the New Jersey Supreme Court treated these two inquiries differently. The trial court treated the best interests of the child as the umbrella under which to consider whether the contract between Stern and Whitehead was a good one. The New Jersey Supreme Court treated the two as distinct issues, so that the court might choose not to enforce the contract but still give custody to Stern.

After a thirty-two-day trial spanning two months (with thirty-eight wit- nesses, including fifteen expert witnesses), the trial court agreed with the Sterns and ordered that sole custody of the baby be awarded to Bill Stern and that Mary Beth Whitehead’s parental rights be terminated.

In a lengthy written opinion, the trial judge framed his discussion entirely in terms of “the best interests of the child.” The court characterized its dis- cussion of the validity of the contract as “commentary” within the best inter- ests legal analysis.19 If the contract was not enforceable, the judge said, he must determine the custodial, visitation, and support rights of the parties.

Mary Beth Whitehead attacked the contract’s validity on a number of grounds. She argued that it was invalid because she had not given informed consent to its terms. The court rejected this argument outright, stating that the concept of informed consent was limited to medical malpractice cases and had no relevance to this case. The trial court also found no evidence of prob- lems with the contract’s formation. Whitehead was not coerced into signing it. She had the ability to alter it or bargain for different terms, and she was not defrauded into signing it.

Whitehead argued that she was fraudulently induced to sign the contract because she had not been informed that ICNY’s psychologist’s evaluation of her included reservations about her suitability to be a surrogate mother based on her perceived tendency to deny her feelings. The court concluded, however, that the Sterns could not be held responsible for ICNY’s failure to share this finding and that, even if the Sterns were somehow responsible, Whitehead did not rely on this alleged misrepresentation to her detriment. Instead, the court found that she raised her fraud arguments “after the fact,” because, in the court’s view, “Mrs. Whitehead wanted to enter a surrogate contract.”20

Beyond the contract and its formation, the trial court examined whether the child’s best interests were better served by being in the custody of Mary Beth Whitehead or Bill Stern. In opting for Bill Stern’s custody, the judge stressed differences in the parties’ “emotional stability,” “ability . . . to recognize and respond to the child’s physical and emotional needs,” attitudes toward educa- tion, “ability . . . to make rational judgments,” and ability to “help the child cope with her own life.”21

The court focused significantly on what it viewed as Mary Beth White- head’s troubling relationships with her husband and her children. Referring to the parties’ relative “emotional stability,” the court wrote, “Mrs. Whitehead dominates the family,” and “Mr. Whitehead is clearly in a subordinate role.” The court suggested that he was not well situated to engage in “rational judgments” because “Mr. Whitehead permits his wife to make most of the important deci- sions in their family.”22 Despite Mary Beth Whitehead’s calls to the police alleg- ing domestic violence by her husband, the court described Mr. Whitehead as “a benign force in the Whitehead household.”23

Mary Beth Whitehead’s attitude toward the baby and her older children came under scrutiny. The court found her too “overbearing” and “thoroughly enmeshed with Baby M, unable to separate her own needs from the baby’s.” Similarly, the court found “from clear and convincing proofs presented to it that Mrs. Whitehead has been shown to impose herself on her children” and that she “exhibit[ed] an emotional over-investment.” The court was concerned by the assertion of Whitehead’s lawyer that “she loved her children too much.” In the court’s words, “Too much love can smother a child’s independence. Even an infant needs her own space.”24

In its exposition of the best interests of the child, the court also variously described Mary Beth Whitehead as “impulsive” for dropping out of high school, removing her son from a second-grade classroom, and fleeing to Florida with the baby; “manipulative” for threatening to kill herself and the baby if she didn’t get to keep the baby; “exploitative” for bringing her older daughter to court with her; “untruthful” to advance her position; and “a woman without empathy.”25

The trial court’s opinion noted that, while Mary Beth Whitehead did not complete high school, the Sterns both held doctoral degrees, and that Betsy Stern was a medical doctor.26 Their relationship appeared more equal to the court than the Whiteheads’ relationship, insofar as they seemed to share a “mutually supportive relationship wherein each respects the other and there is a balancing of obligations.” Moreover, “The Sterns [had] a private, quiet, and unremarkable life which augers [sic] well for a stable household environment.” Whereas Mary Beth Whitehead flouted a court order for custody to be trans- ferred to Bill Stern, said the trial court, the Sterns “obeyed the law.” In contrast with its finding of Whitehead’s mendacity, the court found that the Sterns were “credible, sincere, and truthful people.”27

For these reasons, among others, the court concluded that it was in the child’s best interests to be in the custody of Bill Stern and his wife. The trial court also issued an immediate order allowing Betsy Stern to adopt Baby M.

Mary Beth Whitehead appealed the trial court’s decision to the New Jersey Supreme Court, which, in February 1988, one month before Baby M’s second birthday, reversed the trial court decision and declared that a surrogacy con- tract for pay, like that between Bill Stern and Mary Beth Whitehead, was “illegal, perhaps criminal.”28

The court provided two main reasons. First, the contract directly conflicted with existing family law–related statutes. For instance, the law prohibits pay- ment or acceptance of money when placing a child for adoption. The surrogacy agreement was, in effect, payment for adoption, a form of “baby-bartering.”29 Moreover, New Jersey law requires proof of parental unfitness or abandon- ment before parental rights can be involuntarily terminated. According to the court, the surrogacy agreement attempted an end run around this statutory requirement.

Second, the contract conflicted with a number of weighty state policies. For example, enforcing the agreement would run counter to the state’s policy that “to the extent possible, children should remain with and be brought up by both of their natural parents. . . . The impact of failure to follow that policy is nowhere better shown than in the results of this surrogacy contract. A child, instead of starting off its life with as much peace and security as possible, finds itself imme- diately in a tug-of-war between contending mother and father.”30

Moreover, the surrogacy agreement violated New Jersey’s policy that the “rights of natural parents are equal concerning their child, the father’s right no greater than the mother’s.”31 The agreement effectively gave priority to the father’s parental rights over the mother’s.

In the court’s judgment, the contract also violated the state policy favoring voluntary surrender of children through informed consent. Mary Beth White- head did not receive counseling, nor was the psychological evaluation that ICNY conducted of Whitehead put to any use. The contract committed the natural mother to relinquish her baby “before she knows the strength of her bond with her child.” Of equal concern to the court was that the natural father and adop- tive mother apparently did not benefit from any meaningful investigation of the surrogate mother: “They know little about the natural mother, her genetic makeup, and her psychological and medical history.”32

Perhaps most importantly, in the court’s view, the contract entirely failed to accord deference to the “best interests of the child.” There had been no investigation into the fitness of the Sterns as custodial parents, of Betsy Stern as adoptive parent, of the Sterns’ superiority to Mary Beth Whitehead as cus- todians, or of the effects on Baby M of the contractually agreed upon custodial arrangement.

In addition to all of these concerns, the New Jersey Supreme Court was trou- bled by what it observed as the “profit motive” that “predominates, permeates, and ultimately governs the transaction.”33 Moreover, enforcement of contracts such as this one posed the dangerous potential for exploitation of the poor and for the degradation of women.

Even though Mary Beth Whitehead may have “agreed” to the contract, for the New Jersey Supreme Court this was not the end of the matter. The moral- ity of the deal was up for consideration, and the court weighed in with a series of broad social statements. “There are, in a civilized society, some things that money cannot buy,” wrote the court. “Employers can no longer buy labor at the lowest price they can bargain for, even though that labor is ‘voluntary,’ or buy women’s labor for less money than paid to men for the same job, or pur- chase the agreement of children to perform oppressive labor, or purchase the agreement of workers to subject themselves to unsafe or unhealthful working conditions.” There is a limit to allowing bargains or exchanges just because they are “voluntary.” “There are, in short, values that society deems more important than granting to wealth whatever it can buy, be it labor, love, or life.”34

Bill Stern sought enforcement of the contract on constitutional grounds as well, contending that failing to enforce the agreement would violate his con- stitutional right to procreation. The court rejected this argument, drawing a distinction between the right to procreate and the right to the “custody, care, companionship, and nurturing that follow birth.”35 Stern also argued that he and his wife were being unequally compared to couples in which the wife con- ceives a child with a sperm donor. In the latter case, parental rights are honored, unlike in the Sterns’ case, in which the husband conceives a child with a sur- rogate mother.

According to the New Jersey Supreme Court, these situations were differ- ent enough from one another to justify different treatment under the law. The sperm donor is not in the same position as the surrogate mother, at the very least because of the “difference [in] time it takes to provide sperm for artificial insemination and the time invested in a nine-month pregnancy.”36

Deciding that the contract was invalid and that William Stern had no con- stitutional claims to support its enforcement, the New Jersey Supreme Court decided the case as a custody dispute between a biological mother and biologi- cal father. Short of adoption by Betsy Stern, the court concluded, Whitehead was the baby’s mother. And it was clear that Bill Stern was the baby’s father. Custody cases are decided based on what is in the “best interests of the child.”37 After reviewing the trial record upon which the trial court based its custody award to Stern, the New Jersey Supreme Court concluded that this earlier custody award was reasonably based on sufficient credible evidence. This evidence was strongly persuasive in contrasting both the “family life of the Whiteheads and the Sterns and the personalities and the characters of the individuals.”38 And so the New Jersey Supreme Court sustained the award of Baby M’s custody to Bill Stern, but it terminated Betsy Stern’s adoption of Baby M and granted Mary Beth Whitehead parental visitation rights.

The Impact

The world watched eagerly as the drama surrounding Baby M unfolded. News articles about surrogate parenting appeared periodically in the early 1980s in U.S. newspapers, with the annual combined total of articles on the subject in the New York Times, Los Angeles Times, and Washington Post ranging from eight to twenty- five from 1980 to 1983. In 1987, the year of the custody trial in the Baby M case, 270 articles on surrogacy appeared in these three major newspapers.39 Given this level of coverage, it would have been difficult to remain ignorant of the case. And, indeed, public opinion polls conducted at the time showed just how aware the public was of Baby M. Nearly everyone had heard of the Baby M case.40

While Bill Stern may have come across as the more sympathetic party com- pared to Mary Beth Whitehead in the court of public opinion, views sharply divided over whether surrogacy should be allowed in general. According to reports, “a CBS/New York Times poll and a U.S. News & World Report poll found that most respondents favored Stern receiving custody of the baby (74 percent and 75 percent, respectively); at the same time, when asked about whether such contracts should be legal or whether it was right or wrong for a woman to be a surrogate mother, respondents were evenly divided.”41

This split was unsurprising, given the range of issues the case encompassed. According to law professor Carol Sanger, “The case provoked philosophical debate, political organizing, and legislative action as ethicists, feminists, theo- logians, lawmakers, and local men and women weighed in on surrogacy’s moral, legal, and practical significance.”42

The Baby M case brought to the forefront, in a very public and immediate way, questions about rights and interests in the context of women and their bod- ies, children, and family. According to Sanger, the case “set the stage for debates about the commoditization of children, women’s reproductive autonomy, and the meaning of family in an era of technological possibilities, concerns now directed at the ever more sophisticated forms of assisted reproduction that have come into being since 1985.”43

The dispute between Mary Beth Whitehead and Bill Stern can claim, as part of its legacy, the creation of a body of law relating to surrogacy, which sought to begin to answer some of the questions the case had raised. In 1985, the year Mary Beth Whitehead entered into the surrogacy agreement with Bill Stern, there were no surrogacy laws in place in any state.44 The case prompted wide- spread efforts among lawmakers and lawyers to develop legal rules regarding surrogacy. By 1987, the year of the trial in the case, about half of the states had introduced legislation regulating surrogacy.45

Today, as with early legislative approaches, the law of surrogacy varies considerably by state. About half of the states have statutes in place that deal directly or indirectly with surrogacy. In some of the remaining states, case law alone indicates the status of surrogacy agreements. In other states, the enforce- ability of surrogacy agreements is unclear.

Of those states that do have something to say about surrogacy, a variety of approaches have emerged since Baby M. Some states, like New Jersey, refuse to recognize surrogacy contracts. Of these, some impose criminal penalties for participating in or facilitating surrogacy arrangements.46 Other states permit surrogacy but regulate it. For example, some states limit the intended parents in surrogacy agreements to married couples.47 Others explicitly bar compensation for surrogacy.48 Another approach has been to enforce surrogacy agreements and recognize the intended parents.49

The law of surrogacy that the Baby M case precipitated continues to evolve. Since Baby M’s time, gestational surrogacy has become a popular form of sur- rogacy. In contrast with the traditional surrogacy engaged in by the Sterns and Whitehead, in gestational surrogacy the surrogate does not contribute any of her own genetic material (namely, her egg) but does provide her womb by car- rying the baby. As with traditional surrogacy, gestational surrogacy’s status var- ies from state to state. Some states permit one form of surrogacy but not the other,50 other states permit or bar both,51 and other states’ laws are unclear on either or both forms of surrogacy.52

Epilogue

What happened to those involved in the custody struggle over Baby M? Mary Beth and Richard Whitehead divorced in 1987, when the appeal to the New Jersey Supreme Court was still pending, and Mary Beth married accountant Dean Gould, with whom she went on to have two children.53

Richard Whitehead moved to Florida in 1988 to be closer to family and worked as a cement truck driver until his retirement in 1994. He died in a hospice in 2001.54

Harold J. Cassidy, the chief counsel for Mary Beth Whitehead, continues to practice law in Shrewsbury, New Jersey, at the three-lawyer Cassidy Law Firm. Its Web site lists fifteen “practice areas,” including “Surrogate mother and gestation carrier cases.”55

Noel Keane died in 1997 at the age of fifty-eight after a lengthy battle with can-cer. According to his son and law partner, Christopher, his father helped arrange more than six hundred surrogate births during his career, starting in 1976.56 Gary N. Skoloff, the Sterns’ chief counsel, is still one of New Jersey’s most prominent family law practitioners at the twenty-lawyer firm, which he and Saul Wolfe cofounded more than fifty years ago. Skoloff almost had a twofer in this book since he was counsel to the plaintiff in Lepis v. Lepis, a case that just missed being included.

Bill and Betsy Stern still live quietly in Tenafly, New Jersey, in the house where they raised Baby M. Bill still works at the same job, and Betsy continues to fight medical problems that have afflicted her for many years.

Baby M, or Melissa Elizabeth Stern, grew up in Tenafly with the Sterns. In March 2004, immediately after she became eighteen, Melissa legally terminated Mary Beth Whitehead’s parental rights and formalized Betsy Stern’s maternity through adoption proceedings. Referring to the Sterns, she told a reporter for New Jersey Monthly magazine, “I’m very happy I ended up with them. I love them, they’re my best friends in the whole world, and that’s all I have to say about it.”57

After graduating from George Washington University in 2008 with a major in religious studies, Melissa completed a dissertation at King’s College, London, entitled “Reviving Solomon: Modern Day Questions Regarding the Long-Term Implications for the Children of Surrogacy Arrangements.”58 In October 2011, Judge Harvey Sorkow, the trial court judge in the Baby M case who had coined the name Baby M, presided at Melissa’s wedding to a neuroscientist from New Jersey. The couple lives in London.

In 2007, Melissa was listed in USA Today as one of twenty-five “Lives of Indelible Impact” for the preceding twenty-five years, alongside Nelson Mandela, Pope John Paul II, the passengers of United Flight 93, and New York City firefighters on September 11, 2001, Mother Teresa, and Diana, Princess of Wales.59

  1. Carol Sanger, “Developing Markets in Baby-Making: In the Matter of Baby M,” Harvard Journal of Law and Gender 30 (2007): 69.

  2. The baby was born at Monmouth Medical Center. In the Matter of Baby M, 217 N.J. Super. 313, 346 (Ch. Div. 1987), affirmed in part and reversed in part, 109 N.J. 396 (1988).

  3. Sanger, “Developing Markets,” 83.

  4. Ibid., 83–84.

  5. Ibid., 83 (quoting Noel P. Keane with Dennis L. Breo, The Surrogate Mother [Everest House, 1981], 23–24).

  6. Ibid.; see also Vatican, Congregation for the Doctrine of the Faith: Instruction Dignitas Personae on Certain Bioethical Questions, December 12, 2008, http://www.vatican.va/ roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20081208_dig nitas-personae_en.html (accessed October 26, 2012).

  7. See, for example, Sanger, “Developing Markets,” 67; Baby M, 217 N.J. Super. at 339–40.

  8. According to the trial court, “from the date of their marriage through 1981 the White- heads moved at least 12 times,” and “[i]n or about 1978, the Whiteheads separated during which time Mrs. Whitehead received public assistance.” Baby M, 217 N.J. Super at 339; see also Sanger, “Developing Markets,” 67.

  9. Sanger, “Developing Markets,” 67.

  10. Baby M, 217 N.J. Super. at 336.

  11. Henry M. Butzel, “The Essential Facts of the Baby M Case,” in On the Problem of Surrogate Parenthood, ed. Herbert Richardson, 12 (Lewiston, NY: Edwin Mellen Press, 1987); Baby M, 217 N.J. Super. at 381.

  12. Mary Beth Whitehead and Loretta Schwartz-Nobel, A Mother’s Story (New York: St. Martin’s Press, 1989), 7.

  13. Baby M, 217 N.J. Super. at 344.

  14. Bill Stern testified that “[Richard Whitehead], in fact, had said if Mary Beth wanted to keep the kid, he’d walk right out on her.” Sara Robbins, Baby M Case: The Complete Trial Transcripts (Buffalo, NY: William S. Hein, 1988), 119.

  15. Baby M, 109 N.J. at 472 App. A.

  16. Ibid. at 473.

  17. Butzel, “Problem,” 12. According to the trial court, “[Whitehead] testified that through- out her pregnancy, she recognized the child being carried was not to be hers but was Mr. Stern’s. . . . She testified that at the moment of birth she realized that she could not and would not give up the child.” Baby M, 217 N.J. Super. at 347.

  18. “During their almost three months in Florida, Mr. and Mrs. Whitehead lived with [Whitehead’s parents] for approximately two to three weeks. They left their son and daughter in the care of [Whitehead’s parents] and began a fugitive existence, staying in no less than 15 hotels and motels, as well as with an assortment of relatives and friends.” Baby M, 217 N.J. Super. at 350.

  19. Ibid. at 323.

  20. Ibid. at 383.

  21. Ibid. at 393–95.

  22. Ibid. at 393, 394.

  23. Ibid. at 396.

  24. Ibid. at 392, 393

  25. Ibid. at 393, 397

  26. Ibid. at 394.

  27. Ibid. at 397, 398.

  28. In the Matter of Baby M, 109 N.J. 396, 411 (N.J. 1988).

  29. Ibid. at 425.

  30. Ibid. at 434.

  31. Ibid. at 435.

  32. Ibid. at 437.

  33. Ibid. at 439.

  34. Ibid. at 440.

  35. Ibid. at 448.

  36. Ibid. at 450.

  37. Ibid. at 445.

  38. Ibid. at 457.

  39. SusanMarkens,SurrogateMotherhoodandthePoliticsofReproduction(Berkeley:University of California Press, 2007), 20.

  40. According to Markens, “a Gallup poll conducted during the 1987 trial found that 93 percent of those surveyed had heard of the Baby M case.” Ibid.

  41. Ibid., 22.

  42. Sanger, “Developing Markets,” 69.

  43. Ibid., 69–70.

  44. Joanna L. Grossman, “Time to Revisit Baby M?: A Trial Court Refuses to Enforce a Sur- rogacy Agreement, Part One,” Find Law (January 2010), http://writ.news.findlaw.com/ grossman/20100119.html; Laura M. Katers, “Arguing the ‘Obvious’ in Wisconsin: Why State Regulation of Assisted Reproductive Technology Has Not Come to Pass and How it Should,” Wisconsin Law Review 2000 (2000): 445.

  45. Katers, “Arguing the Obvious,” 455; Marilyn Adams, “Surrogate Parenting Contract Legislation Enacted: 1987, 1988 and 1989 Legislative Sessions,” State Legislative Report 15 (1990): App. A, 9; Richard L. Roe, Childbearing by Contract: Issues in Surrogate Parenting (Madison: Wisconsin Legislative Reference Bureau, 1988), 1.

  46. See, for example, D.C. Code, sec. 16–402 (LexisNexis 2005) (prohibiting surrogacy con- tracts and subjecting to one year in prison and $10,000 fine); Michigan Compiled Laws Service., sec. 772.855–722.859 (LexisNexis 2005) (barring surrogacy contracts for compensation and imposing imprisonment and fines for participating in or helping to arrange such contracts).

  47. For example, New Hampshire and Virginia limit “intended parents” to married cou- ples. New Hampshire Revised Statutes Annotated, sec. 168-B1 (LexisNexis 2001); Vir- ginia Code Annotated, sec. 20–156 (2004).

  48. For example, Washington State permits surrogacy arrangements so long as they are not for compensation, for the surrogate or anyone who facilitates the arrangement. See Washington Revised Code Annotated, sec. 26.26.210 (West 2005) (defining a “surro- gate parentage contract” as a contract for either traditional or gestational surrogacy); ibid., sec. 26.26.240 (voiding any surrogate parentage contract for compensation); ibid., sec. 26.26.230 (prohibiting compensation to any person, organization, or agency assisting in the formation of a surrogate parentage contract).

  49. See, for example, Johnson v. Calvert, 851 P.2d 776, 782 (Cal. 1993) (enforcing gestational surrogacy agreement and determining parental status based on intent).

  50. See Texas Family Code Annotated, sec. 160.754(c) (West 2008) (permitting only gesta- tional surrogacy by prohibiting a surrogate from donating her own egg); North Dakota Century Code, sec. 14–18–04 (2005) (voiding traditional surrogacy arrangements); ibid., sec. 14–18–08 (vesting parental rights in the intended parents of a gestational surrogacy arrangement).

  51. See Florida Statutes, sec. 742.15 (2010) (permitting gestational surrogacy arrange- ments); ibid., sec. 63.212 (permitting traditional surrogacy arrangements); New York Domestic Relations Law, sec. 122–123 (McKinney 2010) (voiding surrogacy contracts and subjecting intended parents and surrogate to $500 fine, $10,000 fine for arrang- ing a surrogacy contract, and felony charges for multiple violations of arranging sur- rogacy contracts).

  52. See Tennessee Code Annotated, sec. 36–1–102(48) (2005) (defining “surrogate birth” as both traditional and gestation surrogacy, but cautioning that “[n]othing in this subdivision (48) shall be construed to expressly authorize the surrogate birth process in Tennessee unless otherwise approved by the courts or the general assembly”); Loui- siana Revised Statutes Annotated, sec. 9:2713 (2005) (seemingly excluding gestational surrogacy arrangements from surrogacy contract prohibition by limiting ban’s scope to surrogacy by insemination.).

  53. See Robert Hanley, “Whiteheads Divorce and Cite Battle for Baby M, Not Pregnancy, as Cause,” New York Times, November 13, 1987, http://query.nytimes.com/gst/fullpage.html ?res=9B0DEEDD1438F930A25752C1A961948260 (last accessed October 26, 2012); Donald P. Myers, “After Baby M: Mary Beth Whitehead Has a New Storybook Life, and Some Tough Talk About Surrogate Motherhood,” Los Angeles Times, March 6, 1989, http:// articles.latimes.com/1989–03–06/news/vw-65_1_mary-beth-whitehead (last accessed October 26, 2012).

  54. Sanger, “Developing Markets,” 97.

  55. Attorneys, The Cassidy Law Firm, http://www.thecassidylawfirm.com/Attorneys/ (accessed June 2012).

  56. LawrenceVanGelder,“NoelKeane,

58,LawyerinSurrogateMotherCases,IsDead,”New York Times, January 28, 1997, http://www.nytimes.com/1997/01/28/nyregion/noel-keane -58-lawyer-in-surrogate-mother-cases-is-dead.html (last accessed October 26, 2012).

  1. Jennifer Weiss, “Now It’s Melissa’s Time,” New Jersey Monthly, March 2007.

  2. Newsletter, George Washington University Department of Religion, 2008, http://www .gwu.edu/~religion/news/Newsletter2008.pdf (last accessed October 26, 2012).

  3. “Lives of Indelible Impact,” USA Today, May 29, 2007, http://www.usatoday.com/news/ top25-people.htm (last accessed October 26, 2012).

Kim, Suzanne A. "In the Matter of Baby M (1988): Reining in Surrogate Parenting and Defining Children's Best Interests." In Courting Justice: 10 New Jersey Cases That Shook the Nation, edited by Paul Tractenberg. Copyright © 2013 by Rutgers, the State University. Excerpted with permission of Rutgers University Press.

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