The ruling, like the case itself, was bound to be controversial. At the centre was the life and custody of a pudgy-cheeked 12-month-old child called Baby M. Her mother, Mary Beth Whitehead, a 29-year-old Brick, N.J., housewife with two other children, had contracted to bear her for a childless couple for the price of $13,500. But when it came time to turn the baby over to the natural father, William Stern, a 40-year-old Tenafly, N.J., biochemist, and his wife Elizabeth, 41, a professor of pediatrics, Whitehead said that she could not give up the child she had borne. Last week, after a seven-week trial that had riveted attention around the world, Hackensack N.J. Superior Court Judge Harvey R.
Sorkow gave full custody to the child’s father. Whitehead, the judge ruled, had no legal right even though she was the natural mother.
The case has raised some of the most complex and soulsearching issues ever dealt with by a judge. The rights of a father were pitted against the rights of a mother. Between them, were the rights of the child. In choosing to give Baby M, as she was known in court documents, to Stern, the judge said that he was attempting to see to the best interests of the child. Whitehead, he said in his 121-page statement, was a “woman without empathy” and he described her as “manipulative, impulsive and exploitive.”
The judge also characterized her marriage to her sanitation worker husband as “plagued with separations, domestic violence and severe financial difficulties requiring numerous house moves.” The Sterns, he added, had a “strong and mutually supportive” marriage and could provide the child with greater security. Immediately after the ruling, the judge ushered Elizabeth Stern into his chambers and signed papers permitting her to adopt Baby M, now to be known as Melissa.
The judge upheld the legality of surrogate contracts, legalizing them in his state. In effect, he said that a woman could rent her womb and that the contract would be legally binding.
But Sorkow said that hiring a womb was different from buying a child, an action which is illegal in the United States and in Canada. “At birth, the father does not purchase the child,” he ruled. “He cannot purchase what is already his.” He agreed with the Sterns’ lawyer that surrogacy is an extension of the right to procreate as assured by
the 14th Amendment to the United States Constitution. “If one has the right to procreate coitally, then one has the right to reproduce non-coitally,” he said.
As reporters and televison crews gathered after the decision, William Stern broke into tears of relief. Said his wife: “Bill and I are very, very sorry that what started out as a very nice thing had to end up like this.” Whitehead, who refers to Stern as “Mr. Sperm,” was not in court when the decision was announced. Later, she vowed to continue the fight to regain custody of her child, but her first motion-before three appellate judges that she be permitted to continue having visiting rights—was rejected late last week on the grounds that the child should not be exposed to her now.
The Sterns met Whitehead in February, 1985, through a surrogate broker. Elizabeth Stern, who had a mild case of multiple sclerosis, feared that a pregnancy would aggravate her condition. William Stern, who had lost all his close relations during the Second World War, desperately wanted a child of his own. For a fee, Whitehead agreed to be artificially inseminated with Stern’s sperm. But when Baby M was born on March 27, 1986, Whitehead refused to relinquish her, and fled with her own husband and two children, aged 10 and 12, and the baby, whom she called Sara, to Florida, where the family hid out for 87 days before being traced.
Legal experts said that Sorkow’s ruling would likely have repercussions worldwide. In fact, the West German government, in reaction to the Baby M decision, is preparing to ban surrogate motherhood. In Canada, although there are no laws either permitting or banning surrogate motherhood, the Ontario government decided in 1982 that a $10,000 contract between a Toronto man and a Florida woman was illegal, amounting to the sale of a child. Later, the father won permanent custody of his son.
In Ontario, legalization of 5 surrogate motherhood is still under consideration. A twoyear-old Law Reform Commission report recommends that such contracts be allowed—but only if court approval precedes the artificial insemination. Ontario Attorney General Ian Scott says that his office is studying the recommendations. He added: “Discussion about this issue is just beginning to develop in Ontario and I would like to get some assessment about what people think about it.”
In the past decade, about 500 children have been born to surrogate mothers in Canada and the United States. Most contracts have worked smoothly. A few disputes have been settled out of court. Whitehead’s tragedy is a painful reminder that a surrogate contract involves another precious commodity—a mother’s natural instincts. □
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