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

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.

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