Court Rules against Mothers for Hire

The practice of hiring a surrogate mother to bear a child violates state laws and offends public policy, according to a sternly worded decision by the New Jersey Supreme Court. As a result, the court ruled invalid the 1985 contract between Mary Beth Whitehead and William Stern that produced “Baby M” and two years of legal wrangling. The landmark decision reverses the finding of a New Jersey trial court concerning the contract, but affirms the lower court’s decision to grant custody of Melissa Stern to her natural father and his wife.

Surrogate parenting agreements have offered a high-priced solution to infertility for couples unable or unwilling to bear their own children. Generally unregulated by law, the practice has come under attack from ethicists, the religious community, and proponents of adoption (CT, Mar. 6, 1987, p. 42).

William L. Pierce, president of the National Committee for Adoption, lauded the New Jersey ruling. He said, “It clearly demonstrates that where there are adoption laws in place, commercial surrogacy cannot exist. [The ruling] could be the death knell for the surrogate industry.”

Baby Selling

The legal adoption of children is regulated by state laws that prohibit the sale of unwanted babies. Surrogate arrangements, in which birth mothers such as Whitehead receive fees in the range of $10,000, violate those laws, the New Jersey court ruled. The decision states: “We find the payment of money to a surrogate mother illegal, perhaps criminal, and potentially degrading to women.” The lower court, however, had upheld the contract as a valid, legal agreement, noting that the child’s natural father, William Stern, could not purchase a child that was already his.

However, the Stern-Whitehead agreement was arranged by the Infertility Center of New York, which received $7,500 from Stern. The Sterns claimed they were paying only for “services” from the Infertility Center and Whitehead, not for an adoption. The court contends that this is disingenuous, since under the agreement the Sterns would pay only $1,000 if the child were stillborn, “even though the ‘services’ had been fully rendered.”

Referring to a New Jersey law against baby selling, the state’s supreme court notes the seriousness of the crime: The child is sold without regard for whether the purchasers will be suitable parents, and the natural mother does not receive the benefit of counseling and guidance to assist her in making a decision that may affect her for a lifetime. “Baby-selling potentially results in the exploitation of all parties involved,” the ruling states. The same negative consequences may result from surrogacy as well, the justices contend, “especially the potential for placing and adopting a child without regard to the interest of the child or the natural mother.”

In addition to violating specific state laws, the surrogate contract flies in the face of sound public policy, according to the ruling: “The contract’s basic premise, that the natural parents can decide in advance of birth which one is to have custody of the child, bears no relationship to the settled law that the child’s best interests shall determine custody.”

And the contract guarantees that the child will be separated permanently from one of its natural parents. This is not the sort of policy the state ought to encourage at all, the decision says. “The whole purpose and effect of the surrogacy contract was to give the father the exclusive right to the child by destroying the rights of the mother.”

Awarding Custody

Following the lower court’s ruling in favor of William and Elizabeth Stern, the judge effected an adoption, giving Mrs. Stern status as Melissa’s mother. The state supreme court, in contrast, restored Whitehead’s rights as natural mother. It sent the issue of visiting rights for Whitehead back to the trial court, which had denied her the opportunity to have a continuing relationship with her daughter.

At the same time, permanent custody of Melissa remains with the Sterns. She has lived with them for all but four months of her two years. During the first four months of her life, she was abducted to Florida by Whitehead and her former husband in their attempt to regain custody of the child. Whitehead, who has since been divorced and remarried, argued that she should have custody of Baby M even if the Sterns were found to be better parents. She said surrogate contracts would be discouraged more effectively if the Sterns lost custody.

The justices disagreed with her, saying, “Our declaration that this surrogacy contract is unenforceable and illegal is sufficient to deter similar agreements. We need not sacrifice the child’s interests in order to make that point sharper.”

By Beth Spring.

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