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

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


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.

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