Baby M
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Baby M (born March 27, 1986) was the
pseudonym A pseudonym (; ) or alias () is a fictitious name that a person or group assumes for a particular purpose, which differs from their original or true name (orthonym). This also differs from a new name that entirely or legally replaces an individua ...
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.


Origins

''In re Baby M'' was a custody case that became the first American court ruling on the validity of
surrogacy Surrogacy is an arrangement, often supported by a legal agreement, whereby a woman agrees to delivery/labour for another person or people, who will become the child's parent(s) after birth. People may seek a surrogacy arrangement when pregnan ...
. William Stern entered into a surrogacy agreement with Mary Beth Whitehead, arranged by the Infertility Center of New York ("ICNY"), opened in 1981 by a Michigan attorney, Noel Keane. According to the agreement, Mary Beth Whitehead would be inseminated with William Stern's sperm (making her a
traditional A tradition is a belief or behavior (folk custom) passed down within a group or society with symbolic meaning or special significance with origins in the past. A component of cultural expressions and folklore, common examples include holidays or ...
, as opposed to gestational, surrogate), bring the pregnancy to term, and relinquish her parental rights in favor of William's wife, Elizabeth. Mary Beth initially relinquished the child to the Sterns per the contract, but returned the next day, threatening to kill herself if she couldn't see the infant. The Sterns, not wanting to risk Mary Beth's life, agreed to let her see the baby for an additional day or two. Instead of returning to the Sterns, Mary Beth and her husband Richard kidnapped Baby M for 87 days. The Sterns turned to the courts, who issued an ''ex parte'' order for the child to be returned to New Jersey, where the matter would be discussed in court, and temporary custody was awarded to the Sterns.


Aftermath

Judge Harvey Sorkow of the New Jersey Superior Court, Chancery Division, Family Part, awarded permanent custody of Baby M to the father. Judge Sorkow enforced the contract signed by both parties before the child was conceived and terminated the parental rights of the birth mother. He based the custody decision on the best interests of the child, taking into account testimony on the stability of Whitehead and Stern and their respective family situations, and also found that the surrogate parenting agreement was valid and enforceable. Whitehead appealed the decision to the New Jersey Supreme Court. It upheld the awarding of custody to Mr. Stern as in the child's best interest, but held the contract to be unenforceable and restored Whitehead's parental rights, leaving the terms of her visitation rights as noncustodial parent to be established by the trial court.


Background details

In March 1984, Mary Beth Whitehead responded to an ad placed by the Infertility Center of New York in the ''
Asbury Park Press The ''Asbury Park Press'' is a daily newspaper in Monmouth and Ocean counties of New Jersey and has the third largest circulation in the state. It has been owned by Gannett since 1997. Its reporting staff has been awarded numerous national hon ...
'' seeking women willing to help infertile couples have children. She was a high school drop-out who had married Richard Whitehead, a truck driver with whom she had two children, Ryan and Tuesday. At roughly the time of her pregnancy with Baby M, Richard was in an accident. He failed to notice that a trailer carrying a full-sized bulldozer had detached from the large dump truck he was driving, as he passed through South Jersey's largest traffic circle. Elizabeth Stern was not infertile, but had
multiple sclerosis Multiple (cerebral) sclerosis (MS), also known as encephalomyelitis disseminata or disseminated sclerosis, is the most common demyelinating disease, in which the insulating covers of nerve cells in the brain and spinal cord are damaged. This d ...
and she and her husband William Stern were worried about the potential health implications of pregnancy, including temporary paralysis. While in vitro fertilization of harvested eggs, followed by implantation of a blastula/embryo was an available technology, Elizabeth Stern feared the then-totally-unknown genetic risk factors, the choice repeatedly subject of the Court's questions to Stern and his counsel. In court, Bill Stern testified that having a child who was related to him by blood was of particular importance because he is the last survivor of a family wiped out by
the Holocaust The Holocaust, also known as the Shoah, was the genocide of European Jews during World War II. Between 1941 and 1945, Nazi Germany and its collaborators systematically murdered some six million Jews across German-occupied Europe; a ...
in Nazi Germany. The Sterns and Mary Beth Whitehead entered into a "surrogacy contract", according to which Whitehead would be artificially inseminated with Stern's sperm, and relinquish her parental rights in favor of the Sterns, in return for $10,000, and possibly expenses. On March 27, 1986, Whitehead gave birth to a daughter. She managed, initially, to get a birth certificate naming the infant Sara Elizabeth Whitehead. Three days after the birth, the infant was handed to the Sterns, who named her Melissa Elizabeth Stern. The very next day, Whitehead went back to the Sterns and demanded that the baby be given back to her. She told them that she could not live without her baby, that she must have her, even if only for one week, that thereafter she would surrender her child. The Sterns, concerned that Mrs. Whitehead might indeed kill herself, not wanting under any circumstances to risk that, and in any event believing that Mrs. Whitehead would keep her word, turned the child over to her. The Whiteheads claimed that Mary Beth was suffering a debilitating post-partum bladder infection at the time, but in fact they kidnapped Baby M and fled from New Jersey for Florida. The Sterns’ counsel applied for, and the county prosecutor issued, warrants for their arrest. Whilst on the run, Whitehead made contact with the Sterns via telephone. William Stern, on the advice of counsel, recorded these conversations. Tapes were later introduced as evidence during court proceedings. In one 45-minute long conversation, Mrs Whitehead threatens to kill Baby M multiple times: "I gave her life. I can take her life away," and "Forget it, Bill. I’ll tell you right now, I’d rather see me and her dead before you get her."


Trials

On March 31, 1987,
New Jersey Superior Court The Superior Court is the state court in the U.S. state of New Jersey, with statewide trial and appellate jurisdiction. The New Jersey Constitution of 1947 establishes the power of the New Jersey courts.Jeffrey S. Mandel, New Jersey Appellate Pra ...
Judge Harvey R. Sorkow formally validated the surrogacy contract and awarded custody of Melissa to the Sterns under a " best interest of the child analysis". Whitehead's parental rights were terminated and Elizabeth Stern was taken into chambers immediately after the ruling was read to formalise the adoption. Whitehead appealed the ruling. The Supreme Court of New Jersey continued the visitation schedule as it were during the initial trial while they considered their ruling. Whitehead took several actions either to claim the child, or incite the Sterns, including returning her wearing a hand-lettered shirt saying "I have a brother and sister." On February 3, 1988, the
Supreme Court of New Jersey The Supreme Court of New Jersey is the supreme court, highest court in the U.S. state of New Jersey. In its current form, the Supreme Court of New Jersey is the final judicial authority on all cases in the state court system, including cases ...
, led by Chief Justice
Robert Wilentz Robert Nathan Wilentz (February 17, 1927 – July 23, 1996) was Chief Justice of the New Jersey Supreme Court from 1979 to 1996, making him the longest-serving Chief Justice since the Supreme Court became New Jersey's highest court in 1948. Ear ...
, 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 Family courts were originally created to be a Court of Equity convened to decide matters and make orders in relation to family law, including custody of children, and could disregard certain legal requirements as long as the petitioner/plaintif ...
. On remand, the lower court awarded custody to the Sterns and Whitehead was given visitation rights.


Legal significance

The case attracted much attention as it demonstrated that the possibilities of
third party reproduction Third-party reproduction or donor-assisted reproduction is any human reproduction in which DNA or gestation is provided by a third party or donor other than the one or two parents who will raise the resulting child. This goes beyond the tradi ...
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, feminists argued about whether a woman's basic human right to make decisions about her own body implied the ability to contract away parental rights to a child born to her, 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—in which a woman can bear and birth a child to whom she has no genetic relation—reopened the question in many jurisdictions. 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 An embryo is an initial stage of development of a multicellular organism. In organisms that reproduce sexually, embryonic development is the part of the life cycle that begins just after fertilization of the female egg cell by the male spe ...
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.


Aftermath

The Whiteheads divorced and Mary Beth married Dean Gould. The couple had two children, Austin and Morgan. Mary Beth and her ex-husband Richard sued ICNY and its founder, Noel Keane, claiming they committed fraud in the Baby M contract. The suit questioned whether Mrs. Whitehead Gould was properly counseled before becoming a surrogate mother. The parties settled out of court and the agreement, signed by Judge Pierre N. Leval of the Federal District Court, dismissed the case without costs or lawyers' fees but does not reveal terms of the settlement. It has been reported Keene and ICNY agreed to pay the couple $30,000 to $40,000. Mary Beth Whitehead Gould wrote a book about her experience in 1989. The Sterns continued to shun media attention. After reaching the age of maturity in March 2004, Melissa Stern legally terminated Mary Beth's parental rights and formalized Elizabeth's maternity through adoption proceedings. "I love my family very much and am very happy to be with them," Melissa told a reporter for the ''
New Jersey Monthly ''New Jersey Monthly'' is an American monthly magazine featuring issues of possible interest to residents of New Jersey. The magazine was started in 1976. It is based in Morristown. In addition to articles of general interest, the publication fe ...
'' in 2007, 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." Melissa is a graduate of
George Washington University , mottoeng = "God is Our Trust" , established = , type = Private federally chartered research university , academic_affiliations = , endowment = $2.8 billion (2022) , preside ...
with a degree in religion. She completed her master's degree at
King's College London King's College London (informally King's or KCL) is a public research university located in London, England. King's was established by royal charter in 1829 under the patronage of King George IV and the Duke of Wellington. In 1836, King's ...
, authoring a dissertation entitled 'Reviving Solomon: Modern Day Questions Regarding the Long-term Implications for the Children of Surrogacy Arrangements' Melissa married Jake Clements in 2011. The couple currently reside in London and have a daughter named Henrietta, born in 2018.


In popular culture

An
ABC ABC are the first three letters of the Latin script known as the alphabet. ABC or abc may also refer to: Arts, entertainment, and media Broadcasting * American Broadcasting Company, a commercial U.S. TV broadcaster ** Disney–ABC Television ...
Network miniseries, simply titled ''Baby M'', was broadcast in May 1988. The miniseries starred
JoBeth Williams Margaret JoBeth Williams (born December 6, 1948) is an American actress and television director. Her directorial debut with the 1994 short film ''On Hope'' earned her an Academy Award nomination for Best Live Action Short Film. In 2009 she began ...
as Mary Beth Whitehead,
John Shea John Victor Shea III ( ; born April 14, 1949) is an American actor, film producer and stage director. His career began on Broadway theatre, Broadway where he starred in ''Yentl (play), Yentl,'' subsequently winning his first major award, the 1975 ...
as William, Bruce Weitz as Mary Beth's husband Rick,
Robin Strasser Robin Victory in Europe Strasser (born May 7, 1945) is an American actress, best known for her role as Dorian Lord on the ABC daytime soap opera ''One Life to Live''. Life and career Strasser's middle name is a tribute to her being born the day ...
as Elizabeth and
Dabney Coleman Dabney Wharton Coleman (born January 3, 1932) is an American actor. Coleman's best known films include '' 9 to 5'' (1980), '' On Golden Pond'' (1981), ''Tootsie'' (1982), ''WarGames'' (1983), '' Cloak & Dagger'' (1984), ''The Beverly Hillbillies ...
as Gary Skoloff. 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. Williams also was nominated for a
Golden Globe The Golden Globe Awards are accolades bestowed by the Hollywood Foreign Press Association beginning in January 1944, recognizing excellence in both American and international film and television. Beginning in 2022, there are 105 members of t ...
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''. In 1988, artist
Martha Rosler Martha Rosler (born 1943) is an American artist. She is a conceptual artist who works in photography and photo text, video, installation, sculpture, and performance, as well as writing about art and culture. Rosler's work is centered on everyday ...
made the video "Born to be Sold: Martha Rosler Reads the Strange Case of Baby M". Mary Beth Whitehead is referenced in the ''
Seinfeld ''Seinfeld'' ( ) is an American television sitcom created by Larry David and Jerry Seinfeld. It aired on NBC from July 5, 1989, to May 14, 1998, over nine seasons and List of Seinfeld episodes, 180 episodes. It stars Seinfeld as Jerry Seinfeld ( ...
'' episode "
The Bottle Deposit "The Bottle Deposit" is a two-part episode, the 131st and 132nd episodes, and 21st and 22nd episodes of the seventh season, of the NBC sitcom ''Seinfeld'', first aired on May 2, 1996. It was originally an hour-long episode, but was split into two ...
", when Jerry's mechanic (played by
Brad Garrett Bradley Henry Gerstenfeld (born April 14, 1960), known professionally as Brad Garrett, is an American actor and stand-up comedian. Possessing a distinctive deep voice, he has appeared in numerous television and film roles in both live-action and ...
) steals Jerry's car after he feels that Jerry isn't caring for it properly.


References


Further reading

* Chesler, Phyllis. ''Sacred bond: The legacy of Baby M.'' (Vintage, 1989) * McDonald, Christie. "Changing the Facts of Life: The Case of Baby M." ''[SubStance'' (1991): 31–48
in JSTOR
* Sanger, Carol. "Developing markets in baby-making: in the matter of baby M." ''Harvard. Journal of Law & Gender'' 30 (2007): 67
online
* Whitehead, Mary Beth, and Loretta Schwartz-Nobel. ''A mother's story: the truth about the Baby M Case'' (St. Martin's Press, 1989), Memoir by the mother


External links



* {{Authority control 1986 births United States family case law Fertility medicine Legal issues in pregnancy New Jersey state case law Sperm donation Surrogacy Trials regarding custody of children M Living people Donor conceived people