Surrogate Contract Illegal, Whitehead Lawyer Argues

An attorney for the woman who gave birth to Baby M said in an appeal before the state Supreme Court today that surrogate parenting violates public policy by exploiting women and emotionally crippling children.

During an hourlong argument, lawyer Harold Cassidy also said the legal arrangement that allowed surrogate mother Mary Beth Whitehead to bear a child for William and Elizabeth Stern is unconstitutional.

“This contract is calling on the mother to act as if she’s not a whole woman,” Cassidy said. “She’s going to be asked to act only as a uterus.”

In an appeal of the landmark Baby M case, Whitehead is seeking to overturn a March 31 decision by Superior Court Judge Harvey R. Sorkow that upheld the $10,000 contract under which the child was born, severed Whitehead’s parental rights to the baby and awarded custody to Sterns.

The decision was the nation’s first on a broken surrogate contract and had the effect of creating state law on the issue because no New Jersey statute deals directly with surrogacy.

Whitehead, a 30-year-old homemaker and mother of two other children, had agreed to be artificially inseminated with Stern’s sperm and bear a child for him and his wife.

When the baby was born March 27, 1986, Whitehead said she couldn’t go through with the deal. The legal tug-of-war began after Whitehead fled to Florida with the child and the Sterns sued for custody.

After Sorkow’s ruling, Elizabeth Stern, a 41-year-old pediatrician, adopted the baby who now is legally Melissa Elizabeth Stern. The child lives with the Sterns in Tenafly, but while her appeal is pending Whitehead is allowed to visit the girl she calls Sara for two hours each week.

She attended today’s court session with her husband, Richard, and her daughter, Tuesday. The Sterns were seated across from the Whiteheads.