Births for Pay Held Illegal by N. J. Court : Father Given Custody of Baby M but Mother Gets Visiting Rights

The New Jersey Supreme Court ruled Wednesday in the landmark custody case of Baby M that contracts paying a woman to give birth to a child amount to illegal baby selling.

But, in a 7-0 decision, the court awarded custody of Baby M to her father and gave visitation rights to the child’s biological mother, Mary Beth Whitehead Gould, who bore the infant under contract.

The justices reversed all but the custody part of a trial court decision and ordered another lower court judge to determine what Whitehead Gould’s visitation rights would be.

Action May Be Criminal

“We invalidate the surrogacy contract because it conflicts with the law and public policy of this state,” New Jersey’s highest court said. “While we recognize the depth of the yearning of infertile couples to have their own children, we find the payment of money to a ‘surrogate’ mother illegal, perhaps criminal, and potentially degrading to women.”

However, the court found no illegality in allowing women voluntarily and without payment to act as surrogate mothers, provided they are not subject to binding agreements to surrender their children.

The decision affects surrogacy agreements only in New Jersey but could apply as a guideline for some other states. At least 27 state legislatures, including California, are considering bills outlining the limits of surrogate motherhood because of the Baby M case. However, none of the bills have been passed.

Lawyers for William and Elizabeth Stern, the couple who hired Whitehead Gould as a surrogate mother, described their clients as “surprised, confused and elated” by the decision. They said the Sterns would not appeal because they do not consider themselves crusaders for legalized surrogacy and always considered custody the main issue.

But attorney Gary Skoloff said that, to “give this child some kind of security and privacy,” the Sterns would fight to limit Whitehead Gould’s visitation rights.

“The Sterns’ primary goal was to end the publicity,” he added. “Now, there is going to have to be a hearing on the visitation rights and there will be more publicity.”

Speaking to a news conference with tears in her eyes, Whitehead Gould said: “I’m glad that the months of uncertainty are over. I did not begin this as a public crusade, but I am gratified to see that surrogacy has been discredited and delighted to know that my relationship with my daughter will continue for the rest of our lives.”

During the long Baby M dispute, Whitehead Gould divorced Richard Whitehead, her husband of 14 years. She stressed that the trauma of the case contributed to the divorce. Later, she married Dean Gould, a New York City accountant, and is again expecting a child.

Emotional Problems

In concluding their 95-page opinion, the justices cautioned that legal and emotional problems can arise from new fertilization technology.

” . . . This case affords some insight into a new reproductive arrangement: the artificial insemination of a surrogate mother,” the court said. “The unfortunate events that have unfolded illustrate that its unregulated use can bring suffering to all involved. Potential victims include the surrogate mother and her family, the natural father and his wife, and, most importantly, the child.”

The decision Wednesday brought mixed reactions from advocacy groups on both sides of the surrogate motherhood issue.

“Today, public policy in the state of New Jersey has been returned to common sense and compassion,” said William Pierce, president of the National Committee of Adoption, which has opposed surrogacy agreements. “The (surrogate motherhood) business represents bargaining for babies at its crudest level.”

He called on the American Bar Assn. to provide states with model legislation banning surrogacy.

“The decision dealt a death blow to commercialized surrogate arrangements in the United States,” added Jeremy Rifkin, co-chairman of the National Coalition Against Surrogacy, which filed a brief on behalf of Whitehead Gould and is involved in 15 other surrogacy fights. “The court has acknowledged that women’s bodies and wombs cannot be rented or leased for nine months.”

Wants Clinics Closed

After the decision in New Jersey, Rifkin called on the attorneys general in all 50 states to close commercialized surrogacy clinics.

The ruling was not welcomed by Noel P. Keane, who owns 50% of the Infertility Center of New York and is the lawyer who drafted the surrogacy contract at issue in the New Jersey case.

“Surrogate parenting works,” Keane said. “There are 200 babies born, 47 on the way and 150 already signed surrogacy agreements. It’s a freedom of choice issue for parents, so they shouldn’t stop it.”

He agreed that existing statutory law throughout the nation does not cover surrogacy. “Legislation is the issue,” Keane added.

Mary Beth Whitehead signed a surrogate motherhood agreement on Feb. 6, 1985, providing that she would be artificially inseminated and give birth to a child for the Sterns. Under the terms of the contract, the mother was to give up her parental rights so that Stern’s wife, Elizabeth, could adopt the baby. The Sterns agreed to pay Whitehead $10,000 for the “service” of carrying the child. They agreed also to pay the Infertility Center of New York $7,500 for arranging the contract.

Elizabeth Stern suffers from multiple sclerosis and was worried about carrying a child, because the disease sometimes presents a serious health risk for pregnant women. The decision to use a surrogate mother had special significance for her husband, who has little family of his own because many relatives died in the Holocaust.

But, after Whitehead Gould gave birth on March 27, 1986, she soon changed her mind, rejected the money and fled to Florida. After four months, the child was forcibly removed from Whitehead Gould’s parents’ home, and Stern filed a complaint seeking to enforce the contract.

Immediate Adoption

The highly emotional 32-day non-jury trial brought national and international media to the courthouse in Hackensack, N. J. Finally, Superior Court Judge Harvey R. Sorkow ruled that the contract was “valid and enforceable” and awarded full custody of the child, who had become known worldwide as Baby M, to her father. Sorkow arranged for Mrs. Stern to immediately adopt the infant in his chambers. She was then 1 year old.

In its decision Wednesday, New Jersey’s highest court reversed Judge Sorkow, declaring that the contract violated state adoption laws because it provided for the payment of money.

“We have concluded that this surrogacy contract is invalid,” the justices ruled. “ . . . Its use of money for this purpose--and we have no doubt whatsoever that the money is being paid to obtain an adoption and not, as the Sterns argue, for the personal services of Mary Beth Whitehead--is illegal and perhaps criminal.

“In addition to the inducement of money, there is the coercion of contract: the natural mother’s irrevocable agreement, prior to birth, even prior to conception, to surrender the child to the adoptive couple. Such an agreement is totally unenforceable in private placement adoption.

‘Sale of a Child’

” . . . This is the sale of a child or, at the very least, the sale of a mother’s right to her child, the only mitigating factor being that one of the purchasers is the father,” the court added.

The opinion, written by Chief Justice Robert N. Wilentz, criticized the whole process of paid surrogate motherhood. The court said that all parties, including the Infertility Center in New York City, which brought the Sterns and Whitehead Gould together, knew money was being paid for the adoption of a child. Such procedures, Wilentz wrote, “frustrate” New Jersey’s adoption statutes.

The state Supreme Court said the adoption of Baby M by Mrs. Stern--who has named the child Melissa while Whitehead Gould called her Sara Elizabeth--also was invalid because the surrogacy contract was not valid. But the court said it had determined it was in the best interest of the child to live with the Stern family.

“All in all, Melissa’s future appears solid, happy and promising with them,” the justices said. However, they came to Whitehead Gould’s defense also, before speaking of the larger trauma of the case.

“It seems to us that, given her predicament, Mrs. Whitehead was rather harshly judged--both by the trial court and by some of the experts. We think it is expecting something well beyond normal human capabilities to suggest that this mother should have parted with her newly born infant without a struggle. Other than survival, what stronger force is there?

“A child, instead of starting off its life with as much peace and security as possible, finds itself immediately in a tug of war between contending mother and father,” the court concluded.