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

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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