Melissa Stern's conception took place under an agreement signed at Noel Keane's Infertility Center of New York on February 5, 1985. There were three parties to the agreement: Richard Whitehead gave his consent to the contract's "purposes, intents, and provisions" and to the insemination of Mary Beth Whitehead, his wife, with the sperm of William Stern. In addition, since any child born to Mary Beth Whitehead would legally be the child of her husband, he agreed that he would "surrender immediate custody of the child" and "terminate his parental rights."
Mary Beth Whitehead agreed to be artificially inseminated and to form no "parent-child relationship" with the baby. She agreed that she would, upon delivery of the child, surrender her parental rights to William Stern; and she acknowledged that she would, during the term of the pregnancy, relinquish her right to make a decision about an abortion. She was permitted to seek an abortion only if the fetus was "physiologically abnormal" or if the inseminating physician agreed an abortion was required to insure her "physical health." Whitehead then agreed that it was William Stern's right to require amniocentesis testing and that she would "abort the fetus upon demand of William Stern should a congenital or genetic abnormality be diagnosed." Despite the limitation of Whitehead's right to seek an abortion, the contract allocated to Stern responsibility for the child in the event that Whitehead refused to fulfill this part of her agreement: "If Mary Beth Whitehead refuses to abort the fetus upon demand of William Stern, his obligations as stated in this Agreement shall cease forthwith, except as to obligations of paternity imposed by statute." Finally, the Whiteheads "agree[d] to assume all risks, including the risk of death, which are incidental to conception, pregnancy, [and] childbirth."
Stern agreed to pay $10,000 to Whitehead. Although the $10,000 was described as "compensation for services and expenses" and the contract specifically states that the fee 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," it was payable only upon surrender of a live infant. If Whitehead suffered a miscarriage prior to the fifth month of pregnancy, she would receive no compensation; if the "child is miscarried, dies or is stillborn subsequent to the fourth month of pregnancy and said child does not survive," Stern agreed to pay Whitehead $1,000. He also paid $10,000 to Noel Keane, for his services in arranging the surrogacy agreement.
Stern's wife, Elizabeth, was not a party to the agreement, nor was she mentioned by name. The contract referred to her only as Stern's wife. The first such reference is the statement that the contract's "sole purpose . . . is to enable William Stern and his infertile wife to have a child which is biologically related to William Stern."' The other reference states, "In the event of the death of William Stern, prior or subsequent to the birth of said child, it is hereby understood and agreed by Mary Beth Whitehead, Surrogate, and Richard Whitehead, her husband, that the child will be placed in the custody of William Stern's wife.''
Events did not go according to the contractual script. On March 27, 1986, Whitehead gave birth to a daughter. She named the infant "Sara Elizabeth Whitehead," took her home, and turned down the $10,000. On Easter Sunday, March 30, the Sterns took the infant to their home. The baby was back at the Whitehead home on March 31; in the second week of April, Whitehead told the Sterns she would never be able to give up her daughter. The Sterns responded by hiring attorney Gary Skoloff to fight for the contract's enforcement. The police arrived to remove "Melissa Elizabeth Stern" from the Whitehead's custody; shown the birth certificate for "Sara Elizabeth Whitehead," they left. When the police returned, Whitehead passed her daughter through an open window to her husband and pleaded with him to make a run for it.
The Trial Begins
The trial commenced on January 5, 1987, by which time a representative had been appointed for the child, known as "Baby M," which stood for Melissa. The Sterns had received temporary custody. Whitehead, who had been ordered by Judge Harvey Sorkow to discontinue breast-feeding the child, had been temporarily awarded two one-hour visits each week, "strictly supervised under constant surveillance . . . in a sequestered, supervised setting to prevent flight or harm."
Skoloff framed the "issue to be decided" as "whether a promise to make the gift of life should be enforced." He stated that "Mary Beth Whitehead agreed to give Bill Stern a child of his own flesh and blood" and emphasized that Elizabeth Stern's multiple sclerosis "rendered her, as a practical matter, infertile . . . because she could not carry a baby without significant risk to her health."
Harold Cassidy, the attorney for Whitehead, offered an alternative view 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 summed up, "not because Betsy Stern is infertile but because one woman stood up and said there are some things that money can't buy." A neurologist affiliated with the Mount Sinai School of Medicine testified that Elizabeth Stern was afflicted with "a very, very, very slight case of MS, if any."
When the issue of custody was brought up, Skoloff stated that contract law and the infant's best interests dictated that exclusive custody should be awarded to the Sterns: "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 addressed Sorkow directly: "Your Honor, under both the contract theory and the best-interest theory, you must terminate the rights of Mary Beth Whitehead and allow Bill Stern and Betsy Stern to be Melissa's mother and father."
Baby M.'s representative, Lorraine Abraham, took the stand to make her own recommendation. She told the court that she had relied, in part, upon the opinions of three experts in forming her own conclusion: psychologist Dr. David Brodzinsky; social worker Dr. Judith Brown Greif; and psychiatrist Dr. Marshall Schechter. Abraham stated that the experts "will . . . recommend to this court that custody be awarded to the Sterns and visitation denied at this time." Abraham, required to offer her own opinion as Baby M's representative, added that she was "compelled by the overwhelming weight of [the three experts'] investigation to join in their recommendation."
During Elizabeth Stern's testimony, she was asked by Randy Wolf, one of Whitehead's lawyers, "Were you concerned about what effect taking the baby away from Mary Beth Whitehead would have on the baby?"
Stern responded: "I knew it would be hard on Mary Beth and in Melissa's best interest."
Wolf then said: "Now, I believe you testified that if Mary Beth Whitehead receives custody of the baby, you don't want to visit."
Stern replied, "That is correct. I do not want to visit."
Skoloff next raised questions about Whitehead's fitness as a mother. Whitehead had hidden in Florida with Baby M shortly after the infant's birth, and Skoloff represented this as evidence of instability. He then played for the court a taped telephone conversation between Mary Beth Whitehead and William Stern:
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.
Stern: 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.
The following day, it was Mary Beth Whitehead's turn to testify. One of her attorneys asked, "If you don't get custody of Sara, do you want to see her?"
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.
Expert testimony followed. Dr. Lee Salk, the influential child psychologist, testified for the Sterns. Already termed a "third-party gestator" in court documents, Whitehead would now be called "a surrogate uterus." "The legal term that's been used is 'termination of parental rights,'" Salk began,
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 $10,000 . . . 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.
Dr. Marshall Schechter testified, as predicted by Abraham, that he believed custody should be awarded to the Sterns. He declared that Whitehead suffered from a "borderline personality disorder" and that "handing the baby out of the window to Mr. Whitehead is an unpredictable, impulsive act that falls under this category." Then, citing (among other things) that Whitehead dyed her hair to conceal its premature whiteness, he added the diagnosis of "narcissistic personality disorder."
Boston psychiatric social worker Dr. Phyllis Silverman refuted Schechter's characterization of Whitehead's behavior as "crazy'':
Mrs. Whitehead's reaction is like that of other "birth mothers" who suffer pain, grief, and rage for as long as 30 years after giving up a child. The bond of a nursing mother with her child is very powerful.
"By These Standards, We Are All Unfit Mothers"
Outside the courtroom, 121 prominent women refuted Schechter's contentions and the "expert opinions" of Brodzinsky and Greif. On March 12, 1987, they issued a document entitled "By These Standards, We Are All Unfit Mothers." The document quoted from each of the expert's testimony and included the New York Times' summary of what commentators called Dr. Schechter's "Patty Cake" test:
Dr. Schechter faulted Mrs. Whitehead for saying "Hooray!" when the baby played Patty Cake by clapping her hands together. The more appropriate response for Mrs. Whitehead, he said, was to imitate the child by clapping her hands together and saying "Patty Cake" to reinforce the child's behavior. He also criticized Mrs. Whitehead for having four pandas of various size available for Baby M to play with. Dr. Schechter said pots, pans and spoons would have been more suitable.
Signed by Andrea Dworkin, Nora Ephron, Marilyn French, Betty Friedan, Carly Simon, Susan Sontag, Gloria Steinem, Meryl Streep, Vera B. Williams, and others, the document concluded with the statement that "we strongly urge . . . legislators and jurists . . . to recognize that a mother need not be perfect to 'deserve' her child."
When Cassidy made the closing argument on behalf of Whitehead, he re-emphasized that Elizabeth Stern was not, as Whitehead had been told, infertile. He also stressed that termination of parental rights was permitted by law only in the event "of actual abandonment or abuse of the child." Finally, he warned that a ruling in favor of the contract's enforcement would lead to "one class of Americans . . . exploit[ing] another class. And it will always be the wife of the sanitation worker who must bear the children of the pediatrician."
Sorkow announced his verdict on March 31, 1987: "The parental rights of the defendant, Mary Beth Whitehead, are terminated. Mr. Stern is formally judged the father of Melissa Stern." Elizabeth Stern was then escorted into Sorkow's chambers, where she adopted Baby M.
New Jersey Supreme Court's Opinion
The Supreme Court of New Jersey overturned the lower court's ruling on February 2, 1988. It invalidated the surrogacy contract, annulled Elizabeth Stern's adoption of Baby M, and restored the parental rights of Whitehead. Writing for a unanimous court, Chief Justice Robert N. Wilentz said:
We do not know of, and cannot conceive of, any other case 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.
The justices then dealt with the issue as a difference between "the natural father and the natural mother, [both of whose claims] are entitled to equal weight." Custody was awarded to William Stern and the trial court was instructed to set visitation for Mary Beth Whitehead.
The court awarded Whitehead visitation on Tuesdays and Thursdays from 10:30 a.m. to 4:30 p.m.; every other weekend; and two weeks during the summer. (Holidays were also divided: the Sterns are entitled to Melissa's company on her birthday, Christmas Day, and Mother's Day, among other occasions.) Since Melissa is now in school during the week, and the Sterns live in New Jersey and Whitehead on Long Island, Whitehead reports that these circumstances have made it increasingly difficult for her to comply with the court-imposed schedule for visits with her daughter. In a recent interview, she said she would seek either a revision of the agreement's terms or to move the rest of her family closer to Melissa's other home in New Jersey.
The New Jersey Supreme Court decision prohibited additional surrogacy arrangements in that state unless "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." Seventeen other states have since adopted similar guidelines.
This case elicited a divided response from feminists. Some asserted the primacy of a mother's claim to her child; others argued that any nullification of the contract would constitute a restriction upon a woman's right to control her own body.
For Further Reading
Brennan, Shawn, ed. Women's Information Directory. Detroit: Gale Research, 1993.
Chesler, Phyllis. Sacred Bond: The Legacy of Baby M. New York: Times Books, 1988.
Cullen-DuPont, Kathryn. Encyclopedia of Women's History in America. New York: Facts on File, 1996.
Davis, Flora. Moving the Mountain: The Women's Movement in America Since 1960. New York: Simon & Schuster, 1991.
Evans, Sara M. Born for Liberty: A History of Women in America. New York: The Free Press, 1989.
Knappman, Edward, ed. Great American Trials. Detroit: Gale Research, 1994.
Sack, Kevin. "New York is Urged to Outlaw Surrogate Parenting for Pay." New York Times, May 15, 1992.
Squire, Susan. "Whatever Happened to Baby M?" Redbook, January 1994.
Whitehead, Mary Beth, with Loretta Schwartz-Nobel. A Mother's Story: The Truth About the Baby M Case. New York: St. Martin's Press, 1989.
Source: Women's Rights on Trial, 1st Ed., Gale, 1997, p.312.