Father Retains Baby M but N.J. Bars Hired Surrogates : Visitation Rights for Her Mother

New Jersey’s highest court ruled today that hiring a surrogate mother amounts to illegal “baby selling,” then gave custody of the child known as Baby M to her father while saying her mother cannot be denied visitation rights.

“Our law prohibits paying or accepting money in connection with any placement of a child for adoption,” the New Jersey Supreme Court said in a 7-0 decision. “Baby selling potentially results in the exploitation of all parties involved.”

The court also ruled that William Stern, the child’s father, is more fit as a parent than Mary Beth Whitehead-Gould but said that Whitehead-Gould retains her rights as a parent and that Stern’s wife could not adopt the 22-month-old child.

No Appeal Planned

Attorneys for both sides said they are satisfied by the decision and will not appeal.

Surrogacy center operators said the New Jersey high court’s ruling does not bar surrogacy contracts in other states.

“‘Unless surrogacy is banned nationwide, there may always be an avenue to do surrogate parenting,” said Noel Keane, a Dearborn, Mich., attorney who operates the Infertility Center of New York. Keane arranged the $10,000 contract under which Whitehead-Gould was artificially inseminated with Stern’s sperm.

The case decided today began in March, 1986, when Whitehead-Gould, then known as Mary Beth Whitehead, reneged on the contract and refused to turn over Baby M to the Sterns.

Fled to Florida

Whitehead fled to Florida with the baby, living on the run for 87 days before authorities tracked them down and turned the baby over to the Sterns.

The ensuing legal dispute sparked a worldwide debate over surrogate motherhood and new reproductive technologies.

Last March 31 Judge Harvey Sorkow upheld the contract, severed Whitehead-Gould’s parental rights and granted custody to the Sterns. Sorkow said the Sterns would provide the most stable home and condemned Whitehead-Gould as an impulsive and manipulative woman.

The state Supreme Court ruled the contract invalid but upheld Sorkow’s decision on parental fitness and added that a surrogate contract that did not involve payment would have been legal.

Adoption Invalidated

The court also invalidated the adoption of the baby by Stern’s wife, Elizabeth, and said the only issue remaining is the extent of visitation by Whitehead-Gould, which will be decided by the lower court.

The child, now known as Melissa Elizabeth Stern, lives with the Sterns and will turn 2 on March 27.

Gary Skoloff, an attorney for Stern and his wife, said that while his clients will not appeal the decision they are concerned about the effect of continued contact with the child’s biological mother.

“They’ll know that Mary Beth Whitehead will always be a part of their lives and a part of her (child’s) life,” said Skoloff. “That, in their view, is a serious problem for the baby.”

Argument Endorsed

Harold Cassidy, an attorney for Whitehead-Gould, said the decision endorses his argument that surrogacy is illegal and against public policy.

“We accomplished what we set out to do,” he said.

Whitehead-Gould already had two children by her first husband, Richard Whitehead, when she agreed to bear a child for the Sterns. Although Whitehead accompanied her to the oral arguments in September, they were divorced less than two months later, saying they remained in love but that the ordeal of the custody battle had destroyed their marriage.

In the meantime, she had become pregnant by accountant Dean Gould, whom she married Nov. 28.