In the Matter of Baby M: 1987

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In the Matter of Baby M: 1987

Plaintiffs: William and Elizabeth Stern
Defendant: Mary Beth Whitehead
Plaintiff Claim: That Whitehead—who had entered a "Surrogate Parenting Agreement," become pregnant via artificial insemination with William Stern's sperm, and delivered his and her own biological child—ought to be forced to give up the baby
Chief Defense Lawyers: Harold Cassidy and Randy Wolf
Chief Lawyers for Plaintiffs: Frank Donahue and Gary Skoloff
Judge: Harvey Sorkow
Place: Hackensack, New Jersey
Dates of Trial: January 5-March 31, 1987
Verdict: The Judge terminated the parental rights of Mary Beth Whitehead and permitted Elizabeth Stern to adopt Whitehead's and William Stern's daughter. This verdict was overturned in part by the New Jersey Supreme Court which, on February 2, 1988, granted William Stern custody but invalidated Elizabeth Stern's adoption and restored Whitehead's parental rights.

SIGNIFICANCE: This was the first highly publicized trial to examine the ethical questions raised by "reproductive technology."

On February 5, 1985, three parties entered into an agreement in the offices of Noel Keane's Infertility Center of New York.

Richard Whitehead consented to the agreement's "purposes, intents, and provisions" and acknowledged that his wife, Mary Beth Whitehead, would be inseminated with William Stern's sperm. Since Richard Whitehead would be the legal father of any child born to his wife, he also agreed to "surrender immediate custody of the child" and to "terminate his parental rights." Mary Beth Whitehead agreed to be artificially inseminated, to conceive and bear a child without forming "a parent-child relationship," and to relinquish the child and her own parental rights to William Stern. She also relinquished her right to make a decision concerning an abortion. She promised not to seek one unless the fetus was deemed "physiologically abnormal" or the inseminating physician declared that it was necessary to preserve her "physical health." Moreover, she granted William Stern the right to demand that she undergo amniocentesis testing and agreed "to abort the fetus upon demand of WILLIAM STERN" if the fetus was found to be congenitally or genetically abnormal. Together, the Whiteheads "agree[d] to assume all risks, including the risk of death, which are incidental to conception, pregnancy, [and] childbirth."

William Stern agreed to pay Mary Beth Whitehead $10,000 upon her surrender of the baby. Although the contract stated that its "sole purpose… is to enable WILLIAM STERN and his infertile wife to have a child which is biologically related to WILLIAM STERN," it described the $10,000 as "compensation for services and expenses," which should "in no way be construed as a fee for termination of parental rights or a payment in exchange for a consent to surrender the child for adoption." Betsy Stern was neither a party to the contract nor mentioned by name; the Whiteheads did agree, however, "that the child will be placed in the custody of WILLIAM STERN'S wife" in the event of Stern's death prior to the child's birth.

Noel Keane of the Infertility Center was paid a fee of $10,000 from the Sterns.

A Child is Born, and Plans Go Away

Events did not go as outlined on paper. Mary Beth Whitehead gave birth to a daughter on March 27, 1986. She refused the $10,000, named the baby "Sara Elizabeth Whitehead," and took her home. The Sterns demanded the baby and took her home on Easter Sunday, March 30. Whitehead got her back on March 31 and, 12 days later, told the Sterns she could never surrender her daughter. The Sterns, determined to enforce the contract, hired attorney Gary Skoloff. The first time the police showed up, Whitehead presented a birth certificate for her daughter, Sara Elizabeth Whitehead, and the police left without "Melissa Elizabeth Stern." The next time the police knocked on the door, Mary Beth Whitehead passed the infant to her husband through an open window and begged him to run. The battle was on.

By the time the trial commenced on January 5, 1987, a guardian ad litem, Lorraine Abraham, had been appointed for the infant. Temporary custody of the child known as "Baby M" had been awarded to the Sterns, and Mary Beth Whitehead had been granted two-hour visits each week "strictly supervised under constant surveillance … in a sequestered, supervised setting to prevent flight or harm." She had also been ordered by Judge Harvey Sorkow to discontinue breast-feeding the infant.

The contract itself was considered first. The Sterns' attorney, Gary Skoloff, said: "The issue to be decided in this court is whether a promise to make the gift of life should be enforced.… Mary Beth Whitehead agreed to give Bill Stern a child of his own flesh and blood." He then explained that Betsy Stern's multiple sclerosis "rendered her, as a practical matter, infertile … because … she could not carry a baby without significant risk to her health."

Whitehead's attorney, Harold Cassidy, countered in his own opening remarks: "The only reason that the Sterns did not attempt to conceive a child was … because Mrs. Stern had a career that had to be advanced.… What Mrs. Stern has is [multiple sclerosis] diagnosed as the mildest form. She was never even diagnosed until after we deposed her in this case.…We're here," Cassidy concluded, "not because Betsy Stern is infertile but because one woman stood up and said there are some things that money can't buy." Dr. Gerard Lehrer, a neurologist with a teaching position at Mount Sinai School of Medicine then testified that Betsy Stern had merely "a very, very, very slight case of MS, if any."

Custody was quickly raised, and Skoloff claimed that his clients were exclusively entitled to the baby, under contract law and because it would serve the child's best interests: "If there is one case in the United States, where joint custody will not work, where visitation rights will not work, where maintaining parental rights will not work, this is it." He appealed directly to Judge Sorkow: "Your Honor, under both the contract theory and the best-interest theory, you must terminate the rights of Mary Beth Whitehead and allow Betsy Stern to adopt.… Terminate the parental rights of Mary Beth Whitehead and allow Bill Stern and Betsy Stern to be Melissa's mother and father."

Lorraine Abraham testified that she "knew the day would come when I would have to stand before this court [as guardian ad litem] and present a recommendation." She explained that she had consulted three experts while trying to make her decision: Dr. Judith Brown Greif, a social worker; Dr. David Brodzinsky, a psychologist; and Marshall Schechter, a psychiatrist. The three, Abraham continued, "will… recommend to this court that custody be awarded to the Sterns and visitation denied at this time." As for her own opinion, Abraham concluded, "I am compelled by the overwhelming weight of their investigation to join in their recommendation."

When Betsy Stern took the stand, she was asked by one of Whitehead's lawyers, Randy Wolf: "Were you concerned about what effect taking the baby away from Mary Beth Whitehead would have on the baby?"

She replied: "I knew it would be hard on Mary Beth and in Melissa's best interest."

Wolf asked her: "Now, I believe you testified that if Mary Beth Whitehead receives custody of the baby, you don't want to visit."

Stern answered: "That is correct. I do not want to visit."

Skoloff then tried to demonstrate that Mary Beth Whitehead would be an unfit mother. Whitehead had fled to Florida and hidden there with the baby for a time. Skoloff characterized this as the action of an unstable person. Then he played a tape recording of a phone conversation between William Stern and Mary Beth Whitehead:

Stern: I want my daughter back.
Whitehead: And I want her, too, so what do we do, cut her in half?
Stern: No, No, we don't cut her in half.
Whitehead: You want me, you want me to kill myself and the baby?
Stern: No, that's why I gave her to you in the first place, because I didn't want you to kill yourself.
Whitehead: I've been breast-feeding her for four months. She's bonded to me, Bill. I sleep in the same bed with her. She won't even sleep by herself. What are you going to do when you get this kid that's screaming and carrying on for her mother?
Stern: I'll be her father. I'll be a father to her. I am her father. You made an agreement. You signed an agreement.
Whitehead: Forget it, Bill. I'll tell you right now I'd rather see me and her dead before you get her.

Mary Beth Whitehead took the stand the next day. Randy Wolf asked her, "If you don't get custody of Sara, do you want to see her?"

Whitehead answered,
Yes. I'm her mother, and whether this court only lets me see her two minutes a week, two hours a week, or two days, I'm her mother and I want to see her, no matter what.

The prominent child psychologist Dr. Lee Salk testified on behalf of the Sterns: "[T]he legal term that's been used is 'termination of parental rights,'" he said,

and I don't see that there were any "parental rights' that existed in the first place … The agreement involved the provision of an ovum by Mrs. Whitehead for artificial insemination in exchange for ten thousand dollars … and so my feeling is that in both structural and functional terms, Mr. and Mrs. Stern's role as parents was achieved by a surrogate uterus and not a surrogate mother.

On February 23, Marshall Schechter, one of the experts consulted by Lorraine Abraham, testified. As Abraham had earlier indicated, he thought the Sterns should be awarded custody. Schechter also said that Whitehead had a "borderline personality disorder" and said that "handing the baby out of the window to Mr. Whitehead is an unpredictable, impulsive act that falls under this category." Finally, he testified that Whitehead dyed her prematurely white hair, evidence of a "narcissistic personality disorder."

The next day, Dr. Phyllis Silverman, a Boston psychiatric social worker, defended Whitehead's flight to Florida and "crazy behavior." She testified:

Mrs. Whitehead's reaction is like that of other "birth mothers" who suffer pain, grief, and rage for as long as thirty years after giving up a child. The bond of a nursing mother with a child is very powerful.

Whitehead Gets Support

Other women organized to defend Whitehead's fitness as a mother. Children's author Vera B. Williams, actress Meryl Streep, and writers Margaret Atwood and Susan Sontag were among a group of 121 prominent women who released a letter mocking statements made by Schechter and the other "experts." The letter, entitled, "By These Standards, We Are All Unfit Mothers," demanded that "legislators and jurists … recognize that a mother need not be perfect to 'deserve' her child."

In his closing argument on Whitehead's behalf, Harold Cassidy pointed out again that Mrs. Stern was not, as originally represented to Whitehead, infertile. He pointed out that the law permitted a termination of parental rights only in the case "of actual abandonment or abuse of the child." And he predicted that a verdict upholding the contract would result in "one class of Americans … exploit[ing] another class. And it will always be the wife of the sanitation worker who must bear the children for the pediatrician."

On March 31, 1987, Judge Sorkow announced his decision: "The parental rights of the defendant, Mary Beth Whitehead, are terminated. Mr. Stern is formally judged the father of Melissa Stern." Judge Sorkow then took Betsy Stern into his chambers and presided over her adoption of Baby M.

Supreme Court of New Jersey Overrules

On February 2, 1988, the Supreme Court of New Jersey invalidated the surrogacy contract, restored Mary Beth Whitehead's parental rights, and annulled the adoption of Baby M by Betsy Stern. "We do not know of, and cannot conceive of, any other case," Chief Justice Robert Wilentz wrote for the unanimous court, "where a perfectly fit mother was expected to surrender her newly born infant, perhaps forever, and was then told she was a bad mother because she did not." After invalidating the surrogacy contract, the justices classified the dispute as one between "the natural father and the natural mother, [both of whose claims] are entitled to equal weight." The court granted custody to William Stern and ordered the trial court to set visitation for Mary Beth Whitehead.

The decision permitted future surrogacy arrangements in New Jersey only where "the surrogate mother volunteers, without any payment, to act as a surrogate and is given the right to change her mind and to assert her parental rights."

By 1992, 16 other states had passed legislation outlawing or restricting commercial surrogacy contracts.

During the appeals process, Mary Beth Whitehead divorced her husband Richard and married Dean Gould. The two have since had two children. Occasionally, Whitehead speaks out in support of other surrogate mothers, hoping to help other women avoid what she went through.

—Kathryn Cullen-DuPont