Baby M’s Father Awarded Custody; Contract Upheld : Judge Bars Whitehead From Visits

A judge awarded custody of Baby M to her father today, ruling that the surrogate mother who gave birth to her must honor the contract in which she pledged to surrender the child.

In the nation’s first judicial ruling on surrogate parenting, Bergen County Superior Court Judge Harvey R. Sorkow upheld the contract on the ground that just as men have a constitutional right to sell their sperm, women can decide what to do with their wombs.

The judge made no provision for surrogate mother Mary Beth Whitehead ever to see her daughter again. He condemned her as impulsive and exploitative and said she either selectively omitted information or lied outright about aspects of her life during testimony.

Locked Courtroom

It took Sorkow nearly three hours in a locked courtroom to read his decision. The father, William Stern, and his wife, Elizabeth, held hands throughout the ruling, clutching each other when the custody decision was announced.

Sorkow said the Sterns would be the most fit parents for the year-old child and would be better able to explain her unusual beginnings in the years to come.

Whitehead had visited her daughter for two hours in the morning but chose not to attend the court session. Instead she drove to her home town of Brick Township and lighted a devotional candle at a church.

Both sides had vowed to appeal, whatever the outcome.

Late Realization

Whitehead, who was artificially inseminated with Stern’s sperm, said she realized during the baby’s birth March 27, 1986, that she could not give up her daughter.

She refused her $10,000 fee and fled to Florida with the infant when the Sterns obtained a court order giving them temporary custody. For 87 days she moved from relative to relative, until authorities tracked her down and returned the chubby, blue-eyed girl to the Sterns.

The Sterns--he a 41-year-old biochemist and she a pediatrician--sued for permanent custody, setting the stage for today’s landmark decision.

The precedent set by the judge’s ruling applies only in New Jersey, but it will have implications for other courts, religious leaders, politicians considering laws on the issue, adoption advocates, potential surrogates and childless couples.

500 Other Babies

Since the first birth under a surrogate contract in 1976, about 500 babies have been born under similar circumstances, but no state has regulated the practice.

The child’s court-appointed guardian, attorney Lorraine A. Abraham, had recommended that the Sterns get custody and that Whitehead be denied visitation rights for at least five years.

The three-month trial stirred a worldwide debate over surrogate parenting. Opponents maintain that the practice amounts to baby selling and exploits women, while supporters endorse surrogate parenting as one way for couples to achieve parenthood.

Condemned by Vatican

The Vatican condemned surrogate motherhood last month, saying it “offends the dignity of the right of the child,” and some feminists picketed at the courthouse to support Whitehead, saying that no mother should be forced to give up her baby.

The same argument was made by attorneys for the 29-year-old Brick Township homemaker and mother of two other children. They told Sorkow that surrogate parenting should be outlawed because no woman can be expected to agree to give up her child before she even conceives.

Attorneys for the Sterns contended that the surrogate agreement reached Feb. 6, 1985, was valid because all involved knew what they were signing. But Whitehead testified that she did not read the contract until after the custody battle began.