Surrogate Births: Is Mother Bound by a ‘Contract’?

What they wanted was a baby, not a lawsuit.

“Never in a million years,” said Dr. Elizabeth Stern, did she and her husband, William, think they would be sitting in a courtroom, battling the woman who had agreed to serve as surrogate mother and bear William Stern’s baby through artificial insemination.

Sitting at the opposite end of the table in state Superior Court here Friday, Mary Beth Whitehead, 29, the surrogate mother, voiced equal amazement that she and the couple she used to go to dinner with were fighting for custody of the 9-month-old baby girl known legally as “Baby M.”

“I never did think this would happen. I was just a mother who wanted to keep her child,” Whitehead said.

The trial, which concluded its first week Friday and is expected to last through March, is the first to address the problems of surrogate births. At present, no state has regulations that apply specifically to such births, and the issue promises to become increasingly prominent in an era of high-tech pregnancy.

With its complicated moral and legal dimensions, the case has focused world attention on this tiny courtroom, where at least two-thirds of the seats this week were occupied by members of the news media.

Accepted $10,000

In arguing that Whitehead had relinquished all rights to the child when she agreed to accept $10,000 to bear Stern’s baby, Frank Donahue, an attorney for the Sterns, called the issue “as simple as contract enforcement.”

But Whitehead’s lawyers maintain that surrogate birth violates New Jersey prohibitions against baby selling and is instead “a form of adoption.” As the infant’s biological mother, attorney Robert Ruggieri said, his client is entitled to refuse to sign papers relinquishing parental rights to the child she calls Sara and the Sterns call Melissa.

“The issues in this case (fill) a 100-page trial brief, and we didn’t hit them all,” said Randolph Wolf, another of Whitehead’s attorneys.

Put Off Parenthood

Two years ago, the Sterns were put in contact with Whitehead through the Infertility Center of New York. They had wanted to have children, the Sterns have testified, but decided to wait until Mrs. Stern, now 41 and practicing pediatrics, completed her medical residency. In 1979, she was diagnosed as suffering from a “mild form” of multiple sclerosis.

In lengthy testimony Friday peppered by frequent interruptions by lawyers for both sides, Dr. James O. Donaldson, a specialist in the neurological problems of pregnancy, concurred with the conclusion of Dr. Stern and her own physicians that a pregnancy might have jeopardized Dr. Stern’s health, possibly resulting in permanent paralysis.

Donaldson, a neurologist and professor at the University of Connecticut, said a woman suffering from multiple sclerosis would have faced medical “Russian roulette” had she chosen to bear her own child.

No Living Relatives

But, as William Stern, a 40-year-old biochemist, testified earlier, it was “compelling” for him to have a child because he has no blood relatives “anywhere in the world.” Stern was born in Berlin shortly after World War II, the only child of two survivors of the Holocaust in Nazi Germany.

Whitehead, the mother of two children born before she was 19, has said she entered the surrogate program because she thought it would help a sister who has been unable to conceive a child. “I thought God would help her,” Whitehead has said.

During her pregnancy, Whitehead and her husband, Richard, occasionally had dinner with the Sterns. In 1985, Whitehead’s daughter, Tuesday, stayed overnight with the Sterns when they took her to New York’s Thanksgiving Day Parade.

Fled to Florida

But, after the baby girl’s birth on March 27, Whitehead found she did not want to part with the child she had borne. She became depressed, threatened suicide and eventually fled with the child to Florida.

The Sterns were awarded temporary custody of “Baby M.” in July.

On Friday, Whitehead said she was late in arriving at court because she had been visiting the infant. She wore a necklace with silver charms portraying three tiny profiles, one boy and two girls. “This one’s Sara,” she said. “She was playing with it this morning.”

Costs Put at $250,000

Although the costs for this phase of the proceedings alone are estimated at $250,000, both sides have said they will carry the case to the highest legal levels. “No matter what happens, it will be appealed, like night follows day,” said Gary Skoloff, an attorney for the Sterns.

“We’re doing what’s in the best interest of Melissa,” Mrs. Stern said.

Outside the courtroom, Whitehead said she would pursue the matter all the way to the Supreme Court, if necessary.