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.