Genova Burns’ 30th Anniversary Countdown of the Most Influential Cases, Events and Laws

#18 – The “Baby M” Case (1988)

October 7, 2019

From a legal standpoint, surrogate motherhood is a moral problem, which, like euthanasia and abortion, has no satisfactory solution. At present, there is no universal consensus on how to handle the issue and many believe that some important values will be compromised no matter how it is handled. Is surrogacy the practice of giving life, as proponents view it, or is it a version of selling babies, as its opponents say?

The well-documented Baby M case raises these questions squarely. On one side, there is the right to procreate and the right of the biological father to his children. On the other, do the same rights for the biological mother to her children apply to the public policy involved in adoption and legal contracts? There is still fierce disagreement about which values are most important to the parties involved.

“The Baby M. Case represented the first American court ruling on the validity of child surrogacy and the rights of the biological parents on both sides of the issue,” said Maria R. Fruci, Counsel at Genova Burns. “While the fundamental element of this case was the enforceability of a surrogacy contract in New Jersey, its notoriety and legal precedent has had a far-reaching impact on surrogacy and on the legal environment for more than 30 years.”


In 1985, William and Elizabeth Stern entered into a surrogate motherhood contract with Mary Beth Whitehead so that the Sterns could have a child of their own that was, in part, genetically linked. Through artificial insemination using Mr. Stern’s sperm, Whitehead would become pregnant. Once the child was born, Whitehead would deliver the child to the Sterns, terminate her maternal rights, and allow Mrs. Stern to adopt the child as its legal mother. The contract also gave Mrs. Stern sole custody in the event of Mr. Stern’s death. In return for her agreement to carry the child, the Sterns agreed to pay Whitehead $10,000 after the child’s birth, and agreed to pay the legal and medical costs involved.

In an unexpected turn of events, Whitehead, almost from the moment the child was born, realized she might have difficulty turning the child over, but indeed handed over the child at her home. Within hours after handing the child over, Whitehead began to regret her decision. Fearing she might harm herself, the Sterns returned the child to her with an agreement that they would retake custody of Baby M in a week. When it became apparent that Whitehead would not return the child, Mr. Stern filed a complaint seeking enforcement of the surrogacy contract. The court found in favor of the Sterns, and backed by local police, a process server went to Whitehead’s home to execute the order. When the process server arrived, it was discovered that Whitehead had fled to Florida with her husband and Baby M.

Police in Florida forcibly removed the child from her grandparent’s home and turned the child over to the Sterns. At trial, the court held that the surrogacy contract was valid and ordered the termination of Whitehead’s parental rights with sole custody granted to Mr. Stern, and they put an order in place for Mrs. Stern’s adoption to proceed. In its decision, the trial court devoted a majority of its opinion to the question of the baby’s best interests.

On appeal, the Supreme Court agreed with the trial court’s analysis of the facts and issues, as well as its legal decision. However, the Supreme Court differed in its review and analysis of the surrogacy contract. The Supreme Court completely voided the surrogacy contract and restored parental and visitation rights to Whitehead. They deemed the surrogacy contract unenforceable, as it conflicted with statutory law and public policy, and ruled that custody must be determined based on the child’s best interests.

In terms of paid surrogacy, the New Jersey Supreme Court ruled that it was “illegal, perhaps, criminal and potentially degrading to women.” The ripples of the court’s decision spread throughout the country, and many states have since outlawed paid surrogacy or surrogacy entirely. While the courts and lawmakers eventually took a negative view on surrogacy, the case put significant focus on surrogacy as an option to start a family, and surrogacy rates across the nation rose as a result.

The Baby M case is still used as a benchmark for other contested surrogacy cases. One such case is Robinson v. Hollingsworth, where the surrogate claimed custody over a child that genetically was not related to her. This case resulted in custody being granted to the intended parents.

Since the Baby M case, the national attitude towards surrogacy has changed. More states have legalized surrogacy as it allows modern families, including same-sex couples, to start and expand families. Clinics that focus on surrogate motherhood have implemented a more rigorous screening process, encompassing an array of physical and mental components. These new processes help certify that a surrogate or egg donor has no doubts about what they are agreeing to and outlines a clear understanding of the custody of children born through the process.

In 2004, Baby M, then an adult and publicly identified as Melissa Stern, legally had Whitehead’s parental rights terminated and initiated the adoption process that would legally recognize Elizabeth Stern as her mother.

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