Surrogate Parent Trial Ruling Expected by March 30 : Closing Arguments Heard Over Baby M

For four hours Thursday, lawyers delivered impassioned closing arguments in the bitter landmark custody case of Baby M, telling the judge that both the future of the chubby 11-month old infant girl and the future of surrogate parenting now rest in his hands.

State Superior Court Judge Harvey R. Sorkow then told the packed courtroom that he faced an “awesome burden” in deciding whether the parents’ surrogacy contract was valid, and who should get custody of the child. The judge has said he will rule by March 30.

The 32-day-long trial has drawn widespread attention as the first court test of the increasing use of surrogate parenting contracts, and a painful public airing of thorny moral and ethical issues involving gender, class and maternal love.

Baby M was born last March 27 after artificial insemination of a surrogate mother, Mary Beth Whitehead. Whitehead had signed a $10,000 contract agreeing to bear the child for William and El1769628002later refused to accept the payment or surrender the infant.

Seek Exclusive Custody

Attorneys for both the Whitehead and Stern families argued vehemently in their summations for exclusive custody of the healthy, blond-haired, blue-eyed infant. The two couples sat stoically by their lawyers, occasionally blinking hard, but saying little.

“In reality, she is guilty of loving her baby too much,” said Harold J. Cassidy, Whitehead’s lawyer. “The bottom line is Mary Beth Whitehead is the mother and without that, she has nothing in life.”

Cassidy said Whitehead decided to keep the child after giving birth because “a bond developed . . . that was stronger than any sense of obligation she had toward Bill Stern.”

But Gary N. Skoloff, attorney for the Sterns, argued that Whitehead had understood the contract when she signed it in May, 1984, and that it should be upheld as legally binding.

“Mary Beth Whitehead changed her mind,” he said. “It’s as simple as that.”

Attacks Character

Skoloff attacked Whitehead’s character, and recounted testimony by witnesses, including several physicians, who had questioned her fitness as a mother.

Cassidy argued that the issue in the case was class, saying the surrogate contract represented “hideous exploitation” of Whitehead, a 29-year-old mother of two, a high school dropout, and the wife of a garbage collector who suffers from episodic alcoholism.

Such contracts allow “one class of Americans” to exploit another class, he said. “And it will always be the wife of a sanitation worker who will bear the child for the husband of a pediatrician,” Cassidy added. “This case is bigger than Mary Beth Whitehead, it is bigger than Mr. and Mrs. Stern,” Cassidy said. “In truth, Mary Beth Whitehead tried this case for all surrogate mothers. . . . It will set standards, set policy, set the moral tone for all such future disputes.”

But Skoloff said Whitehead is a person who “cannot be trusted. She lies regularly, whether under oath or not.”

Skoloff said the Sterns, in contrast, showed their “true character” by returning the infant to the distraught mother shortly after the birth “because they feared Mary Beth would harm herself or her children” if she didn’t get the baby.

Family Disappears

Then, he said, the Sterns faced “the ultimate nightmare for any parent--their baby is kidnapped. The whole Whitehead family disappears. And for 87 days, no word from the Whiteheads.”

He recounted a desperate telephone call from Whitehead to Stern last July 15, while the Whiteheads were hiding with the infant in Florida. A tape of the call was played in court last month.

“Who in this court was unaffected when they heard Mary Beth Whitehead say on the tape, ‘I gave her life, I can take her life away,’?” Skoloff asked.

The child, called Sarah by the Whiteheads and Melissa by the Sterns, has been living under a temporary custody order with the Sterns since July 31, when police located the Whiteheads in Florida. Whitehead has had twice weekly visits to see the baby since then.

Skoloff told the judge he should terminate any future contact between Whitehead, or her parents in Florida, and the baby, so that Mrs. Stern could legally adopt the infant.

“There’s not a shadow of a doubt that this child is happy, healthy and thriving,” Skoloff said. “She’s where she should be, and where your honor should keep her.”

Offers Recommendations

But the infant’s court-appointed legal guardian, Lorraine A. Abraham, offered a different set of recommendations in the trial’s final moments.

Abraham advised the judge to grant custody of the infant to the Sterns, while withdrawing visitation rights--but not terminating full legal parental rights--from Whitehead.

“We must accept that time heals and people can change,” Abraham said. “To terminate is irrevocable. To terminate may in fact be inhuman.”

Abraham said court-appointed psychiatrists and social workers should re-evaluate the Sterns, the Whiteheads and the child in five to seven years to see whether the custody order should be altered.

Abraham also recommended that Whitehead’s parents, Joseph and Catherine Messer, be allowed to visit the baby at the Stern’s home in Tenafly, N.J.

“It’s not without its problems,” Abraham said later in an interview. “There is no solution. . . . This is a unique case that needs unique remedies.”

Appeal Certain

Meeting reporters after the court session, lawyers for both the Whiteheads and the Sterns said an appeal was certain no matter how the judge rules.

And as a soft snow fell on the domed courthouse, William and Elizabeth Stern told reporters they plan to avoid the press in coming weeks and plan “something special, something private” for the infant’s first birthday.

“She already says ‘Mama,’ ‘Dada’ and ‘Baby’,” Mrs. Stern said with a smile.