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History

On May 5, 1986, William and Elizabeth Stern filed a verified complaint and order to show cause in the Superior Court of New Jersey, Chancery Division Family Part, that began what would become known as the Baby M. case. The events surrounding the trial and the parties involved captured the attention of people around the globe and initiated a series of legal battles that occupied the front pages of newspapers and journals for years. In re Baby M., 217 N.J. Super. 313, 525 A.2d 1128 (Ch. Div. 1987); cert. granted, In re Baby M., 107 N.J. 140, 526 A.2d 203 (1987); aff'd in part and rev'd in part, In re Baby M., 109 N.J. 396, 537 A.2d 1227 (1988); on remand, In re Baby M., 225 N.J. Super. 267, 542 A.2d 52, (Ch.Div. 1988).

This collection presents a unique view of the events based on materials donated by Judge Harvey R. Sorkow (Rutgers Law School Class of 1953) who presided over the trial and by Lorraine Abraham (Rutgers Law School Class of 1974), whom Judge Sorkow appointed as Baby M.s guardian ad litem. The collection includes notes made by the judge, letters from the public sent to the court, psychological evaluations, drafts of opinions, pleadings, correspondence to and from the guardian, and similar documents.

Background

Most Americans can define I.V.F., sperm donor, surrogate mother, and other terms common to reproductive technology. However, in the 1980s, reproductive technology was a field so new that it did not even have a name. Babies born through in vitro fertilization were called test-tube babies and legal and medical scholars vigorously debated the true definition of surrogate mother. Almost all aspects of non-traditional conception and family building were controversial and at the least existed in a gray legal area. Yet despite these legal obstacles, thousands of infertile couples and other people striving to build families pursued whichever reproductive techniques were likeliest to produce a child. As the case often is, legislatures lagged far behind social reality.

The Baby M. trial erupted during this contentious time. The case directly involved one baby and three adults all of whom desperately sought to be the child's parents. The legal action began on May 5, 1986, when Elizabeth and William Stern sought and obtained a court order from then-Superior Court Judge Harvey R. Sorkow granting the Sterns temporary custody of Baby M., a child born to Mary Beth Whitehead. Mary Beth had entered into a contract, on February 6, 1985, to be inseminated with William's sperm; her husband, Richard Whitehead, also signed the contract, to show that he consented to the insemination and would not claim the child as his own. The contract required Mary Beth to surrender the baby to William, who was then to pay her $10,000.

Mary Beth Whitehead

Mary Beth was 27 when she agreed to serve as a surrogate mother for the Sterns. She and Richard already had two young children. The couple had married when Mary Beth was 16 and Richard was 24; their two children, a boy and a girl, were born before Mary Beth turned 19. The Whiteheads had struggled financially and personally for several years, filing for bankruptcy and separating for a short period. In the mid-1980s, Mary Beth answered a local newspaper ad that sought women interested in helping infertile couples. Mary Beth and her husband were no longer able to conceive more children, as Richard had had a vasectomy after their second child was born. The $10,000 would also help the family greatly with its precarious finances.

The Sterns

Media coverage seemed to relish the cultural and financial contrast between the Whiteheads and the Sterns; indeed, there were many significant differences between the families. William has a doctorate in bio-chemistry. Elizabeth has a medical degree as well as a doctorate in human human genetics. Elizabeth continued her education after earning her Ph.D. degree, completing her pediatric medical residency in 1978.

The Sterns had decided to delay starting a family until Elizabeth had finished her pediatrics residency. During her medical studies, Elizabeth learned that she had multiple sclerosis and that a pregnancy would exacerbate the illness. Given Elizabeth's age and illness, the Sterns began to consider alternative ways to start their family.

The Sterns briefly considered adoption. However, adoption agencies often sought younger adoptive parents (both Sterns were in their early 40s when Baby M. was born). The Sterns also feared that their differing religious backgrounds (Elizabeth had been raised Methodist and William was Jewish) would impede their efforts to adopt. In addition, William Stern longed to have a child who was genetically related to him. He had lost his extended family in the Holocaust.

With the development of IVF and alternative forms of insemination, surrogacy was beginning to emerge as an appealing alternative to adoption--an extremely lengthy process with no guarantee of success. The Sterns then paid the Infertility Center of New York (ICNY) $7,500 to find and establish a surrogacy arrangement. Consequently, ICNY brought the Sterns together with Mary Beth, who signed the surrogacy contract in early February 1985. Mary Beth gave birth to a girl one year later, on March 27, 1986. Although she had agreed to give the baby to the Sterns, her feelings changed while Whitehead was still in the hospital. With the Sterns consent, Mary Beth and Richard had their names listed as the baby's parents on the birth certificate and named the child Sara Elizabeth Whitehead. The Sterns picked up the baby from the Whiteheads' home in New Jersey three days after the birth. They named the baby Melissa.

The next day, March 31, Mary Beth arrived at the Sterns home in Tenafly, tearfully beseeching the Sterns to have the baby for one week. They reluctantly agreed and as the one week turned into two weeks, Mary Beth told the Sterns she would not return the baby.

The Baby M. Trial

On May 5, 1986, the Sterns filed a verified complaint and order to show cause, triggering months of acrimonious and highly public litigation. In an attempt to maintain the child's anonymity, Judge Sorkow referred to her as Baby M. and thus gave the trial its shorthand title. On May 6, the Whiteheads fled with the baby to Florida, staying in various relatives' homes and motels for the next three months. The Sterns hired a private detective to find Mary Beth and the baby. On July 15, 1986, William finally spoke to Mary Beth on the telephone. She threatened to kill herself and the baby if the Sterns pursued legal action for the baby. Two weeks later, local police finally seized the baby at Mary Beth's parents home in Florida.

In September 1986, Judge Sorkow ordered that the baby remain with the Sterns pending his final ruling. He also allowed Mary Beth twice-weekly supervised visitation at a local youth shelter.

There followed six weeks of trial, testimony from 28 expert and lay witnesses, and dozens of exhibits. There were interim hearings seeking to close the trial to the press and bifurcating its issues: (a) the surrogacy contract and (b) custody. Judge Sorkow began the trial on January 5, 1987, focusing on the legality of the surrogacy contract: is the contract valid and, if so, is it enforceable: If it is enforceable, is enforcement in the best interest of the child? The trial then moved to issues of custody, visitation, as well as adoption. The trial received media coverage almost every day over the next three months. The Judge also received hundreds of letters from people around the world people outraged over the concept of surrogacy, and people who had acted as surrogates, people who offered to adopt Baby M. These letters illustrate the diverse views held regarding reproductive technology and surrogacy.

On March 31, Judge Sorkow decided the issues before the court, finding that the surrogacy contract was valid and enforceable, and that to do so under the facts of the case would be in the best interests of the child. Mary Beth's parental rights were terminated and Elizabeth was granted a judgment of adoption, thus changing the baby's birth certificate to read Melissa Stern.

Public reaction was passionate and divided, as were the opinions of legal scholars, bio-medical ethicists, and psychologists. Judge Sorkow held that the contract did not violate public policy and that women had the right to serve as surrogates and be paid for such services.

Mary Beth appealed. The New Jersey Supreme Court took the direct appeal, bypassing the Appellate Division. It partially reversed and partially affirmed Judge Sorkow's decision. 109 N.J. 396, 537 A.2d 1227 (1988). Wilentz, C.J. for the court, wrote that a surrogate contract for pay was against public policy in New Jersey. The court annulled Elizabeth's adoption of Melissa and restored Mary Beth's parental rights. However, the Supreme Court affirmed the grant of custody to William, and gave visitation rights to Mary Beth. It remanded the matter to the trial court to determine the parameters of Mary Beth's visitation. The trial court granted Mary Beth unsupervised, liberal visitation with Melissa, finding that such an arrangement was in the child's best interests. 225 N.J. Super. 267, 542 A.2d 52 (Ch. Div. 1988)

Epilogue

Almost twenty years later, when Melissa turned 18, she began the process to terminate Mary Beth's parental rights and to have Elizabeth Stern adopt her. In a rare public comment, Melissa referred to the Sterns as "my parents" and her "best friends in the whole world."

Sources:

Michael J. Kelly, "Baby M Goes to the Sterns", The (Northern New Jersey) Record, April 1, 1987, p. A-1.

"From Contract to Courtroom: The History of Baby M", The (Northern New Jersey) Record, April 1, 1987, p. A-12.

Jennifer Weiss, "Now Its Melissa's Time", New Jersey Monthly, March 2007.

Allison Pries, "Whatever Happened to Baby M?", northjersey.com, January 5, 2010, retrieved August 19, 2010 from http://www.northjersey.com/news/Whatever_happened_to_Baby_M.html.