In re: Baby M

Does anyone remember this case?

It was current quite a while ago (the late 1980's, to be exact). You

wouldn't think it was terribly relevant today. Yet, it seems to come up

over and over again in my legal classes.

The issue is commercial surrogacy and the question, I guess, is

whether it is moral. From a legal standpoint, it depends on the state.

After the Baby M case was litigated and subsequently appealed, 10 states formally outlawed the practice.

So what happened to cause all this stir?

Well, it started when Mary Beth Whitehead answered an Asbury Park Press ad

requesting "surrogate mothers." At the time, Mary Beth was a wife,

homemaker, and mother of two pre-adolescent children. Since she and her

husband had no intention of having more kids, it seemed like a generous

plan to help an otherwise infertile couple.

The infertility center, itself, was obviously out to make a profit.

The plan was to "match" fertile women with infertile couples while the

center collected a $10,000 fee. As it happened, Mary Beth "passed"

their initial screening, although the center's own psychologist noted

that she may have trouble parting with any baby that resulted from such

an arrangement.

Shortly thereafter, Mary Beth was matched with William and Elizabeth

Stern. Upon their initial meeting, both couples felt they had been

perfectly placed. From the Whiteheads standpoint, the Sterns were a

professional couple (he was a biochemist and she a pediatrician) who

would make excellent parents. At that point, Mary Beth was excited to

help alleviate the emptiness borne of their infertility.

From the Sterns initial perspective, Mary Beth was just great. She was young, energetic, and she'd already had two healthy children. She seemed like the perfect candidate to have a baby for them.

Two weeks later, the procedures began. William Stern and Mary Beth

Whitehead began meeting at the infertility center where she was

artificially inseminated. After 8 inseminations, and several months,

Mary Beth became pregnant.

I am sure you already realize the problem.

Mary Beth bonded with, and became attached to the unborn infant. As her pregnancy progressed, she became increasingly uneasy about the idea of giving her flesh and blood away.

From the Sterns perspective, it was William's biological child as

well. And, they had planned and dreamed for so long. They wanted the

baby very much, and Mary Beth had already signed a contract agreeing to

the arrangement.

So what happened?

A baby girl was born, and Mary Beth fell in love with her. The

Whiteheads named her "Sara Elizabeth Whitehead." The Sterns named her

"Melissa Elizabeth Stern."

Since Mary Beth felt a deep sense of obligation to the Sterns, she

initially parted with Sara/Melissa. However, after only one night of

tears and anguish, Mary Beth went to the Stern's home to beg for her

baby back. Noting Mary Beth's hysteria and depression at being parted

from the baby, the Sterns agreed to give the child back for one week.

However, they were still relying on the original contract which stated

that they would become the sole legal parents of Sara/Melissa.

Of course, it didn't work out that way. Mary Beth's attachment to

the infant just strengthened after spending time with her. So, at the

end of the week, Mary Beth informed the Sterns that she planned to keep

the baby.

That's when things got ugly. The Sterns, who were fairly affluent,

hired the best lawyers in New Jersey to represent them. In fact, after

their initial meeting with the judge, they were able to obtain an

immediate court order that placed Sara/Melissa in their custody.

This sort of order, which immediately changes custody of a child, is

extremely rare. Almost always, the parent who has possession of the child is

given a chance to be heard from the Court before such a decision is

made. However, in this case, the police just showed up at Mary Beth's

door demanding that she relinquish her infant.

Scared and defenseless, the Whiteheads did the unthinkable. While

the police and the Sterns were in the front of the house, Mr. Whitehead carried the baby out a back window and ran away. At that point, the

police handcuffed Mary Beth and pushed her into their car. However,

with no real grounds to arrest her, they left her property about 2

hours later.

Later that evening, Mary Beth disguised herself and met her husband at a relative's house. From there, the family flew to Florida where they found temporary refuge with Mary Beth's parents. In the weeks that followed, they traveled around Florida, staying at various motels and relatives' homes.

Nearly a month and a half later, Mary Beth developed a toxic kidney infection, during which she was hospitalized. With no other means to care for their three (3) children, Mr. Whitehead took them back to the grandparents in Holiday, Florida. It was there that private investigators charged into the home, found Sara/Melissa, and returned her to the Sterns.

At this point, Mary Beth was able to get some media attention. Under the advice of her first attorney, she publicized the case so she could find advocates. Shortly after being discharged from the hospital, and in questionable health, Mary Beth returned with her family to New Jersey.

Those of you who have studied the case know the trial that ensued was brutal. The Whiteheads faced a great deal of contempt for their lack of education and money. As a garbage man, Rick earned about $30,000 annually. The Sterns, combined, earned a six-figure income.

Mary Beth was granted temporary supervised visitation with her daughter - two hours per week. She was criticized for everything from dying her hair to bringing her daughter stuffed pandas instead of "pots and pans" on her first birthday. (Huh?!)

Considering the unfair slant and not surprisingly, at the end of the initial trial, Mary Beth was stripped of all her parental rights. Harvey Sorkow, the presiding judge at the time, was downright brutal, referring to her in his ruling as "narcissistic, immature, and without empathy." The Sterns were jubilant.

Fortunately, during the middle of the trial, Mary Beth had retained an incredibly skilled family law attorney. His name is Harold Cassidy, and he is still practicing today. After the ruling, Cassidy appealed immediately to the New Jersey Supreme Court. And, after several months, Mary Beth's maternal rights were restored.

Since Baby M was nearly two-years-old at the time of this ruling, and since she had lived with the Sterns for the majority of her life, Mr. Stern was granted sole custody. However, Mary Beth was granted visitation rights every other weekend and on alternate holidays.

Most states follow the "best interests of the child" regime - although the term is very subjective. The Sterns were a stable couple who could provide Melissa with a predictable, secure home. The Whiteheads, on the other hand, had experienced a variety of problems throughout the years including marital separation, poverty, and Mr. Whitehead's alcoholism.

Was the ruling fair? A lot of people think so. But, I don't.

Was Mary Beth perfect? No, but who is?

Were the Sterns good people? Sure. 

Were they wealthier, more secure, more stable? Absolutely. 

Were they better parents? I'm not sure...

Mary Beth had successfully raised other children, even while facing abundant life challenges. Mary Beth was a survivor. And, as a mother, I believe she had every right to change her mind about the surrogacy contract. In most states, birth mothers are allotted at least 6 weeks to change their minds before an adoption may proceed. Why not a "surrogate" birth mother? My goodness, this woman blew her life to bits to win a little bit of visitation with her daughter! She was judged, condemned, and accumulated legal fees that she is still probably paying off. If that isn't a dedicated mother, then I don't know what is.

Please understand, I am in no way disputing that adoption can be a wonderful thing. Nor am I in any way disputing Bill Stern's rights to Melissa--which were just as valid as Mary Beth's rights.

But, when we analyze the "best interests of the child" rule, what standard are we using? If we automatically decided that because one couple is more stable, more financially set, more acceptable than the other couple--are we really using the right variables to ultimately determine a child's life?

Yes, Mary Beth signed the contract without thinking ahead. But, let's face it. Bill Stern didn't carry the baby. Didn't live through the pregnancy. And, most assuredly, did not face an unending stream of hormones when the baby was born.

I think back to my own pregnancies. If someone had whisked one of my babies away would I, like Mary Beth, have become "narcissitic and immature"?

Would other mothers do the same?

And, ultimately, what standard should we use to decide what is right or wrong?