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INSTITUTE OF MEDICINE the trial court's use of a "best interest of the child" analysis and
Bioethics 2 remanded the case to family court. On remand, the lower court
awarded the Sterns custody and Whitehead was given
CASE: BABY M visitation rights.

Historical Background • According to later terminology, Mary Beth would be
• William and Elizabeth Stern wanted to start a family however, considered a traditional surrogate, as opposed to a gestational
Mrs. Stern learned that she might have multiple sclerosis and surrogate, because she was the genetic mother of the child. At
that the disease may render the pregnancy a serious health risk. the time, the technology for gestational surrogacy was not yet
Initially, they considered adoption but were discouraged due to in common use.
the possible delay involved. They responded to the advertising
of Infertility Center of New York (ICNY). Mrs. Mary Beth
Whitehead, wife of Richard Whitehead (a waste collector) and Case Facts
mother to two kids (Ryan and Tuesday), responded to an ad • The trial lasted two months.
placed by the Infertility Center of New York in the Ausbury Park • The New Jersey Court ruled out surrogacy contract because it
Press seeking women to help infertile couples have children on was invalid.
March 1984. The Sterns reportedly based their choice by simply • The court recognized Mrs. Whitehead as the legal parent of the
looking at Mary Beth Whitehead’s picture. child. It said that no contract can alter the legal position of a
woman who bears a child as that child’s mother.
• William Stern and his wife, Elizabeth entered into a surrogacy • The Family Court also gave Mr. Stern the custody of the child
contract with Mary Beth Whitehead, through a broker, Noel keeping in consideration the “best interests of the child
Keane. Mary Beth Whitehead’s response resulted from her analysis” and Mrs. Whitehead was awarded visiting rights.
sympathy with family members who could not have children • In March 2004, upon reaching legal age of maturity, Melisa
and regarded that she wanted to give another couple the “the Stern (previously Baby M) legally terminated the parental rights
gift of life”. The contract states that Elizabeth Stern was infertile of Mrs. Whitehead.
and that they wanted a child and Mrs. Whitehead agreed to • She also formalized Mrs. Stern’s maternity by undergoing
bear that child as surrogate mother with Mr. Stern as father adoption proceedings.
through artificial insemination in exchange for $10,000 to be
paid after the child’s birth. It also includes renouncement of
parental rights over Baby M and also forbade her from having Implication of the Case
an abortion. • “Third party reproduction”
• Point of debate: “The ability to contract away parental rights to
• Upon the birth of the child (‘Melissa' called by the Sterns and a child born to her invoke a basic human right for a woman to
’Sarah Elizabeth’ to Beth) on March 27, 1986 and the make decisions about her own body, or whether recognizing
subsequent turning over of ‘Baby M’ to the Sterns three days such a right would entail too great risks of exploitation.
after, Mrs. Whitehead became deeply disturbed, disconsolate • Property version vs “Best Interests of Child” version
and stricken with unbearable sadness after 24 hours of - Property version: adult’s rights to their biological children
transferring physical custody to the Sterns. She persuaded Mr. stem from the property interest they have in their genes
and Mrs. Stern to give her at least a week with the child by - “Best interests of child”: adult’s right to biological children
telling them that she was suicidal. Mr. and Mrs. Stern handed are justified because children are better off with their
the child to Mrs. Whitehead. Series of attempts to regain genetic parents recognizing such a right would entail too
possession of Baby M were done but Mrs. Whitehead refused great risks of exploitation.”
to return the baby and left New Jersey taking the child with • When the New Jersey Court said nothing can alter the legal
her. This prompted Mr. Stern to file a complaint seeking rights of a woman who bears the child, that somewhat settled
enforcement of the surrogacy contract. Mr. Stern alleged that the surrogate’s mother’s status in the United States. However,
Mrs. Whitehead not only refused to comply with the surrogacy it remained so only until gestational surrogacy came to the
contract but also threatened to flee with the child in order to forefront with technical and scientific breakthroughs and led to
avoid the possibility of his obtaining custody. The Sterns froze the establishment of the fact that surrogate mother had no
Mrs. Whitehead’s account and a warrant was issued for her relation with the child.
arrest.

• After a lengthy trial on March 31, 1986, New Jersey Superior Ethical Issues Raised
Court Judge Harvey Sorkow formally validated the surrogacy • On Artificial Insemination and Surrogacy
contract and awarded custody of Baby M to the Sterns under - It is morally illicit because conjugal union did not take
a “best interest of the child analysis”. The court ordered that place. It involves manipulative techniques which degrades
Mrs. Whitehead’s parental rights be terminated and that the procreation into mere act devoid of interpersonal
sole custody of the child be granted to Mr. Stern. The court also relations.
entered an order allowing the adoption of Melissa “Baby M” by - Monge stated that, “Heterologous ‘in vitro’ fertilization
Mrs. Stern, all in accordance with the surrogacy contract. which utilizes donor sperms or ova or hire surrogate
mothers is clearly immoral. It presupposes anonymous
• On February 3, 1988, however, the Supreme Court of New paternity (equivalent to biological adultery). It is a
Jersey, led by Chief Justice Robert Wilentz, invalidated biological process separated from spousal relationship.
surrogacy contracts as against public policy but in dicta affirmed

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 - According to Donum Vitae, “Procreation must take place • Reduction of a Human Being into a Commodity
in marriage only to be called morally acceptable. - Surrogacy makes pregnancy services readily available for a
Heterologous artificial fertilization is contrary to the unity couple who cannot or does not want to be impregnated
of marriage, to the dignity of the spouses, to the vocation - Psychological effects on everyone, especially children
proper to parents and to the child’s right to be conceived
into the world in and from marriage.”
- As regard to medical intervention in human intervention, Developments
the moral criterion is that ‘it must be at the service of • In removing surrogacy from the realm of permissible
conjugal union’. In the issue of infertility, Donum vitae commercial activity in New Jersey, Justice Wilentz focused on
suggests that the community has the responsibility to give what he saw as the pernicious role of the middleman. By taking
consolations to the couples who can’t bear children. money out of the equation, entrepreneurs would have to go
elsewhere to extract surplus from trades like this, and that is
• The Right to an Identity of Origin certainly what happened.
- The Universal Declaration of Human Rights acknowledges
the right of men and women “to marry and to found a • Surrogacy brokers decamped to jurisdictions where surrogacy
family” was permitted or to those still in legal limbo, as New Jersey had
- This is best understood as a right not to be prevented from been. But Baby M had revealed surrogacy’s potential for heart-
founding a family break or as many contended, heartbreak’s inevitability and
o It is not an absolute right to have children. many state legislatures took note. Some banned commercial
o The family is entitled to protection and this surrogacy outright; others were content to make surrogacy
would include protection from any form of con-tracts legal but unenforceable.
reproductive therapy which, however well-
intentioned, would have the effect of weakening • In many jurisdictions, brokers have come in for special mention.
the bonds of family. Some states, such as Colorado, ban payment to the mothers but
- As autonomous human individuals, our identity and our permit it to the broker. Some countries, such as the United
self-understanding is, to significant extent, dependent on Kingdom, permit payment to the mother but completely ban it
our genetic origins. to the broker. It is an offense in the U.K. not only to broker a
- According to the Church’s Donum Vitae, "The child has the commercial deal but even to arrange without compensation for
right to be conceived, carried in the womb, brought into a volunteer surrogate. And where surrogacy is legal, in
the world and brought up within marriage: it is through the California, it appears to thrive. In sum, couples can now choose
secure and recognized relationship to his own parents that from an array of surrogacy options. They can stay close to home
the child can discover his own identity and achieve his own if the local market satisfies, or they can forum shop in the global
proper human development.” market of reproductive tourism.
- Any procedure which undermines the unity and integrity
of a family also damages the fabric of society, because the • As a general rule, a person should be accorded the right to make
institution of the family is the foundation on which society decisions affecting his or her own body, health, and life, unless
is built. that choice adversely affects others. Thus, the United States
Supreme Court, while recognizing the right of women to control
• The Essential Meaning of Human Sexuality their own bodies, has rejected the view that the federal
- Human sexuality is designed in such a way that the coming constitution vests a pregnant woman with an absolute right to
together of man and woman as one flesh is both an terminate her pregnancy. Instead, the Court declared that the
expression of intimacy and self-giving and the privileged right was "not absolute" so that "at some point the state
context in which new life begins. interests as to protection of health, medical standards, and
- With the emergence of technology, the more dominant it prenatal life, become dominant.
becomes, the more personalistic dimension of human
sexuality tends to be separated from the act of life-giving, • In the present case, the parties' right to procreate by methods
and the more easily the creative act of God is obscured. of their own choosing cannot be enforced without
consideration of the state's interest in protecting the resulting
• Property version vs. “Best Interests of Child” version child, just as the right to the companionship of one's child
- Property version: adult’s rights to their biological children cannot be enforced without consideration of that crucial state
stem from the property interest they have in their genes interest.
- “Best interests of child”: adult’s right to biological children
are justified because children are better off with their • On August 8, 2012, New Jersey Governor Chris Christie issued
genetic parents an absolute veto of Senate Bill 1599, which would have created
a statute enabling and enforcing so-called “gestational”
• Possibility of Class Exploitation surrogacy arrangements. The bill was sponsored by New Jersey
- In most cases of surrogacy, the surrogate mother tends to State Senator Joseph Vitale, and substantially drafted by
have attained a lower educational background, and Melissa Brisman, a commercial surrogacy broker. If signed into
oftentimes would belong to a lower paying job than their law, it would have been the most radical surrogacy bill
clients; “exploitation of the disadvantaged as breeders for anywhere in the nation.
the well-to-do”

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• According to the March 28, 1999, edition of The Asbury Park
Press, Indiana, Louisiana, and Kentucky have decided that
surrogate childbearing contracts are legally unenforceable
under any circumstances, and that, in Michigan and Nebraska,
it is a crime punishable by fines or imprisonment to enter into
a contract involving compensation other than the mother's
medical expenses.

• Surrogacy cases were filed following this case. Example would
be Melissa Cook’s case, which happened 30 years after
Whitehead’s. Harold Cassidy (Whitehead’s lawyer, now
Cook’s), told People magazine: “surrogacy reduces women to a
breeding animal or incubator” and that pre-tending the
surrogate “has absolutely no interest in what happens to the
child is a cruel notion to both the mother and the child”. Cook
was a gestational carrier, and did not have any relationship to
the triplets she was carrying. While she was pregnant, she
learned that the biological father of the triplets wanted to abort
one of the babies because of his own financial constraints. She
re-fused, despite the father’s lawyer’s threat to levy financial
sanctions outlined in the contract should she not schedule what
is called a reduction.

• Another case would be that of a gestational carrier who sued
her gay brother and his partner for custody of the twins she
bore for them. She won visitation but not parental rights.

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