Baby M

Baby M (born March 27, 1986) was the pseudonym used in the case In re Baby M, 537 A.2d 1227, 109 N.J. 396 (N.J. 1988) for the infant whose legal parentage was in question.

In re Baby M was a custody case that became the first American court ruling on the validity of surrogacy. William Stern and his wife, Elizabeth Stern, entered into a surrogacy agreement with Mary Beth Whitehead, whom they found through a newspaper advertisement. According to the agreement, Mary Beth Whitehead would be inseminated with William Stern's sperm (making her a traditional, as opposed to gestational, surrogate), bring the pregnancy to term, and relinquish her parental rights in favor of William's wife, Elizabeth. After the birth, however, Mary Beth decided to keep the child. William and Elizabeth Stern then sued to be recognized as the child's legal parents.

The New Jersey court ruled that the surrogacy contract was invalid according to public policy, recognized Mary Beth Whitehead as the child's legal mother, and ordered the Family Court to determine whether Whitehead, as mother, or Stern, as father, should have legal custody of the infant, using the conventional 'best interests of the child' analysis. Stern was awarded custody, with Whitehead having visitation rights.

At birth, Mary Beth Whitehead named Baby M. "Sarah Elizabeth Whitehead." She was later renamed "Melissa Stern," after William Stern was awarded legal custody.

Background details

Mary Beth Whitehead responded to an ad placed by the Infertility Center of New York in the Asbury Park Press seeking women willing to help infertile couples have children. She was a high school drop-out who had married a waste collector, with whom she had two children Ryan and Tuesday.^[1]

Elizabeth "Betsy" Stern was not technically infertile, but had multiple sclerosis and was concerned about the potential health implications of pregnancy, including temporary paralysis.^[2]

William "Bill" Stern and Mary Beth Whitehead entered into a "surrogacy contract," according to which Mary Beth would be inseminated with Bill's sperm, bring the pregnancy to term, and relinquish her parental rights in favor of Bill's wife, Betsy. The Sterns reportedly based their choice simply by looking at her picture.

(According to later terminology, Mary Beth would be considered a traditional surrogate, as opposed to a gestational surrogate, because she was the genetic mother of the child. At the time, the technology for gestational surrogacy was not yet in common use).

On March 27, 1986, Mary Beth gave birth to a daughter, whom she named Sarah Elizabeth Whitehead. However, within 24 hours of transferring physical custody to the Sterns, Mary Beth went to them and demanded that the baby to be given back to her, allegedly threatening suicide. Mary Beth subsequently refused to return the baby to the Sterns and left New Jersey, taking the infant with her. The Sterns had the Whitehead family's bank accounts frozen and sought warrants for their arrest.

In 1987, New Jersey Superior Court Judge Harvey R. Sorkow formally validated the surrogacy contract and awarded custody of Baby M to the Sterns under a "best interest of the child analysis".^[3]

On February 3, 1988, however, the Supreme Court of New Jersey, led by Chief Justice Robert Wilentz, invalidated surrogacy contracts as against public policy but in dicta affirmed the trial court's use of a "best interest of the child" analysis and remanded the case to family court. On remand, the lower court awarded the Sterns custody and Whitehead was given visitation rights.^[4][5]

Legal significance

The case attracted much attention as it demonstrated that the possibilities of third party reproduction raise novel legal and social questions about the meaning of parenthood and the possibility of contracting around issues of pregnancy and childbirth.

Among other points of contention, people argued about whether the ability to contract away parental rights to a child born to her invoke a basic human right for a woman to make decisions about her own body, or whether recognizing such a right would entail too great risks of exploitation.

The New Jersey court's finding that no contract can alter the legal position of a woman who bears a child as that child's mother seemed to settle the question of the status of surrogacy contracts in America, at least until technological advances permitting gestational surrogacy resulted in cases where a woman can bear and birth a child to whom she has no genetic relation reopened the question in many jurisdictions.^[6]

At least in New Jersey, however, the Baby M. ruling continues as precedent. In 2009, New Jersey Superior Court ruled that In re Baby M applies to gestational surrogacy as well as traditional surrogacy cases, in A.G.R. v. D.R.H & S.H.. The intended parents were a homosexual male couple. They created an embryo using an anonymous donor ovum and the sperm of one of the husbands. The sister of the other husband carried the embryo to term and originally delivered the child to her brother and his husband, but a year later asserted her own parental rights even though she was not genetically related to the child. Judge Francis Schultz relied on In re Baby M to recognize the gestational mother as the child's legal mother. However, a later ruling in 2011 awarded full custody to the biological father.^[7]

Aftermath

After reaching the age of majority in March 2004, the daughter known as "Baby M" (now named Melissa) legally terminated Mary Beth's parental rights and formalized Betsy's maternity through adoption proceedings.^[1] When the controversy died down, Whitehead divorced her husband, re-married and had another child with her new husband.

Melissa attended Dwight-Englewood School in Englewood, New Jersey and later The George Washington University in Washington, D.C. and majored in religious studies. She said it was strange to study the Baby M case in her bioethics class at the university.^[1]

"I love my family very much and am very happy to be with them," Melissa told a reporter for the New Jersey Monthly, referring to the Sterns. "I'm very happy I ended up with them. I love them, they're my best friends in the whole world, and that's all I have to say about it."^[1]

Studying at King's College London, Melissa completed a dissertation, "Reviving Solomon: Modern Day Questions Regarding the Long-term Implications for the Children of Surrogacy Arrangements."^[8]

The biological mother, Ms. Whitehead, wrote a book about her experience in 1989.^[9]

In January 2011, a British court ruled a woman who bore a daughter under an informal surrogate agreement with a childless couple should keep the baby.^[10]

In October 2011, the original judge in the Baby M case, Harvey M. Sorkow, presided over the Tarrytown, New York wedding of Melissa and a neuroscientist. Melissa lives in London, England and goes by the name Melissa Clements.^[11]

In popular culture

Promotional image from the Baby M television miniseries

An ABC Network miniseries, simply titled Baby M, was broadcast in May 1988. The miniseries starred JoBeth Williams as Mary Beth Whitehead, John Shea as William, Bruce Weitz as Mary Beth's husband Rick, Robin Strasser as Elizabeth and Dabney Coleman as Gary Skoloff.^[12] The miniseries received seven Emmy nominations, including Outstanding Miniseries, which it did not win. Williams, Shea, Weitz, and Coleman all received nominations for their performances, but only Shea won.^[13] Williams also was nominated for a Golden Globe for her performance.

In 1989, Mary Beth Whitehead published her own book about her experiences, A Mother's Story: The Truth About the Baby M Case.^[14]

In 1988 artist Martha Rosler made the video "Born to be Sold: Martha Rosler Reads the Strange Case of Baby M".^[15]

Mary Beth Whitehead is referenced in the Seinfeld episode "The Bottle Deposit", when Jerry's mechanic (played by Brad Garrett) steals Jerry's car after he feels that Jerry isn't caring for it properly.

References

External links

• Summary of the Baby M case