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

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

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