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In re Baby

Decided: March 31, 1987.

IN THE MATTER OF BABY "M", A PSEUDONYM FOR AN ACTUAL PERSON


Sorkow, P.J.F.P.

Sorkow

The Issue.

The primary issue to be determined by this litigation is what are the best interests of a child until now called "Baby M." All other concerns raised by counsel constitute commentary.

That commentary includes the need to determine if a unique arrangement between a man and woman, unmarried to each other, creates a contract. If so, is the contract enforceable; and if so, by what criteria, means and manner. If not, what are the rights and duties of the parties with regard to custody, visitation and support.

Jurisdiction.

There can be no solution satisfactory to all in this kind of case. Justice, our desired objective, to the child and the mother, to the child and the father, cannot be obtained for both parents. The court will seek to achieve justice for the child. This court's fact finding and application of relevant law must mitigate against the heartfelt desires of one or the other of the natural parents.

Where courts are forced to choose between a parent's rights and a child's welfare, the choice is and must be the child's welfare and best interest by virtue of the court's responsibility as parens patriae. In re J.R. Guardianship, 174 N.J. Super. 211, 224 (App.Div.1980).

Probably the most important authority of the court is the exercise of its parens patriae jurisdiction. Jurisdiction is a word of broad and comprehensive impact. It means the authority by which courts and judicial officers take cognizance of and

decide cases. It means the authority to act, to find, define and apply the law.

Parens patriae is that power of the sovereign (in this case the State of New Jersey by its judicial branch) to watch over the interests of those who are incapable of protecting themselves. Black's Law Dictionary (4 ed. 1975). The case of Lippincott v. Lippincott, 97 N.J. Eq. 517, 519 (E. & A.1925) is further instructive. Justice Minturn writes that parens patriae was known in varying terms from the time of early Greek civilization. In Greece, a child was a charge of the state. After infancy the state took the child into its control and educated him to the will of the state. Early English common law conceded to the parent absolute control of the child subject to the power of the king in the interest of the child as well as in the interest of the state. 1 Blackstone's Commentaries 451. In our nation, early decisions defining the jurisdiction of the court of equity hold that a court's right to intervene for the protection of an infant is an inherent power of the court. People v. Mercein, 8 Paige Ch. 55 (Ch.N.Y.1883). It appears well settled that courts having historic chancery or equity jurisdiction exercise and control the sovereign power called parens patriae.

This historic jurisdiction was developing in 13th- and 14th-century England. In early English common law, all judicial authority reposed in the crown. Ultimately, as the population expanded and society's problems grew complex, the crown delegated these problems to courts of law for resolution. The king retained certain prerogatives to insure that ultimate equity was done. When an injustice was found at law, or perhaps the law had no remedy for a particular circumstance, a plea to the crown or to its lord chancellor led to the creation of a separate system of law -- one where the chancellor (hence chancery) as keeper of the king's conscience sought to do equity and cure the injustice and inequities often caused by the inflexible forms of the common law. As this alternate system grew, its hallmark became one of flexibility and invention to meet new

situations and circumstances. Conflict arose between equity and law creating, rather than ameliorating, injustice. This caused Parliament, by 1875, to enact laws abolishing the separate court system. This merger of systems did not occur in New Jersey until some 75 years later when, in the New Jersey Constitution of 1947, a unified court system was created. While Article III of the State Constitution created a unified Superior Court, a Chancery Division within the court continued to exercise the historic powers of the original courts of equity. Kimmelman, I., "Chancery: Introduction and Perspective," New Jersey State Bar Journal (Summer 1977).

Thus, it is pursuant to R. 5:2-1, which defines actions cognizable in the Superior Court, Chancery Division, Family Part, that this court, as the present day successor to a part of that historic legacy of equity jurisdiction, applies said jurisdiction to the issues herein presented; to wit, the best interest of a child and contractual rights, if any, of the litigating parties.

Venue.

Venue is a concept of place -- in this context, where should a lawsuit be brought. Jurisdiction defines the court's authority; venue defines in which geographic area the suit should be instituted. Mr. and Mrs. William Stern*fn1 live in Bergen County, New Jersey. Mr. and Mrs. Richard Whitehead live in Ocean County, New Jersey. The child was taken from Bergen County to Ocean County and returned to Bergen County ultimately from the State of Florida. At the time of the institution of this suit, Mr. and Mrs. Stern believed they had the right to have the child returned to them in Bergen County. They believed "Baby M" was a resident of Bergen County; hence, Mr. and Mrs. Stern began their action here. R. 5:2-1 provides that an action involving status of children should be

brought in the county of domicile. There never was a challenge to this placement of venue. This court concludes that venue is properly in Bergen County.

Procedural History.

This litigation began on May 5, 1986, when Mr. and Mrs. William Stern filed an ex-parte application for an order to show cause why this court should not issue an order for a summary judgment to enforce a surrogate-parenting contract. The order to show cause was returnable on May 27, 1986.

At the same time a verified complaint was filed seeking to enforce a surrogate-parenting agreement, compel the surrender to plaintiffs of the infant child born to Mrs. Mary Beth Whitehead, restrain any interference with plaintiffs' custody of the infant, terminate Mrs. Whitehead's parental rights and allow adoption of the child by Mrs. Stern.

Much has been made by Mr. and Mrs. Whitehead that the court ordered a return of the child without notice (ex-parte) to them. All of defendants' arguments in this regard fail because it is clear that R. 4:52-1, which provides for orders to show cause with temporary restraints, specifically allows for a temporary restraint to issue if the facts alleged in a verified complaint or affidavit allow the court to conclude that immediate and irreparable harm or damage will result to plaintiff before notice can be served and a hearing had thereon. The court's fact finding will show clear support for such a conclusion. Indeed, the anticipation by the Sterns of the Whiteheads' flight from New Jersey after service upon them of the restraining order is proof that the Sterns' pleadings contained credible and convincing evidence of immediate and irreparable harm, if not to plaintiffs-Stern than certainly to the infant.

Notwithstanding defendants-Whiteheads' protestations about the lack of knowledge of the order's contents and about the lack of service of the order upon them, valid and credible proof of service of process on defendants-Whitehead appears from

the certification of a Brick Township police officer dated May 28, 1986, attesting to his having personally left the complaint and order to show cause with defendants-Whitehead on May 5, 1986. Pursuant to R. 4:4-4, defendants were lawfully and properly served and this court then obtained in personam jurisdiction over them.

On May 27, 1986, the return day of the order to show cause, no one appeared for defendants-Whitehead and this court continued the temporary restraint order until July 17, 1986. After proof of service was filed and no appearance was entered by the defendants-Whitehead on July 17, 1986, some 2 1/2 months after initial service, this court made an order requiring surrender of the infant to plaintiff William Stern, the natural father, who was also granted temporary custody. The order further provided for restraints against defendants-Whiteheads' interfering with plaintiff William Stern's custody of the infant, authorized Mr. Stern to get the child's birth records and pursuant to the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-28 et seq., authorized the filing of the New Jersey custody order in Florida. Parenthetically, it is noted that on the day following May 5, 1986, when this court gave temporary custody to plaintiff William Stern, the Whiteheads removed the child from New Jersey and plaintiff William Stern instituted proceedings pursuant to N.J.S.A. 2C:13-4a, unlawful interference with custody. That law makes it a criminal offense to interfere with or remove a child from its custodial parent. Disposition of this complaint to this court's knowledge is still pending.

On August 6, 1986, the first of the Whiteheads' three lawyers entered an appearance on their behalf. On August 16, 1986, the second of defendants' three attorneys entered his appearance. After notice to all counsel, including counsel about to be substituted, on its own motion the court entertained argument on August 13, 1986, on the appointment of a guardian ad litem for the infant. Over the objection of plaintiffs-Stern, after reviewing briefs of counsel and hearing argument, this court

entered an order calling for the appointment of a guardian ad litem.

The need for the appointment of the guardian ad litem was clear to this court. Each of the principal litigants was concerned with their own agenda; to wit, the return of the child to their permanent custody to the total exclusion of the other. None of their attorneys could wholly and/or ably represent their client and independently represent the infant. The child is also a real party in interest to this litigation. It is with her welfare that this court is concerned and that welfare may be viewed differently by the principal litigants, thus necessitating independent representation. Another reason is of possible constitutional proportions. If a case proceeds and a real party in interest is not permitted independent representation, this fact could very well be a denial of procedural due process. Good social authority for the appointment of an independent attorney for the child is cited in Goldstein, Freud and Solnit, Beyond the Best Interests of a Child (1973), at 66, in which the authors write that every child must be recognized as a necessary indispensable party. The child has a direct personal interest in the result of the litigation. As such, the child must have its interests independently interpreted. Finally, this court wrote some six years ago that the impact of a court decision on custody affects a total lifetime. There is seldom a greater interest before any court than a child's interest. Sorkow, "Functions of a Guardian ad Litem," New Jersey Lawyer (May 1981), at 11.

Continuing with the procedural history, on August 22, 1986, based on representations by Mrs. Whitehead that she had uncontracepted intercourse with her husband prior to conceiving "Baby M" and that plaintiff Mr. Stern was not the father of the subject child, this court ordered an HLA blood test to determine paternity. Mrs. Whitehead failed to make known to the court at that time that her husband Richard Whitehead had a vasectomy nine years ago. The results of the test proved conclusively that Richard Whitehead was not and could not be

the biological father, but rather the probability of paternity of William Stern was 99.96% as compared to an untested man of the North American Caucasian population. It must be noted that the HLA test is accepted in our court as scientifically reliable. Malvasi v. Malvasi, 167 N.J. Super. 513 (Ch.Div.1979). The court subsequently ruled that plaintiff William Stern was the natural biological father of the infant child born to defendant Mary Beth Whitehead. This court also concludes that defendant Mary Beth Whitehead is the biological mother of "Baby M."

On September 2, 1986, Mr. and Mrs. Whitehead filed an answer to the complaint and a counterclaim seeking custody and damages for fraud.

Another ancillary issue was addressed by the court when its order to seal the proceedings was attacked by several newspapers. This court, in its discretion as provided by R. 5:3-2, sealed the record and ordered in camera hearings to protect the infant child, whose origins are unique, from the stigmata of uncontrolled publicity. Furthermore, statutes dealing with termination of parental rights and adoption call for closed door hearings. By reason of the maternal grandmother giving all of the background facts as she perceived them to the St. Petersburg (Florida) Times after "Baby M" was recovered by Florida authorities, which information was copied by the metropolitan New York area media, confidentiality, to protect the child's welfare, became a moot and impossible issue. The matter proceeded thereafter, by order dated September 25, 1986, in open court. So much for the balancing of the competing concepts of freedom of information against the welfare of a child. But for the prior publication by Mrs. Messer of the facts as she saw them, this case would have proceeded in camera to protect the infant child. Only the issue of Mrs. Stern's medical history required further attention. The Appellate Division of the Superior Court by order dated November 21, 1986, reversed this trial court's order which sealed Mrs. Stern's deposition as

to her medical condition and thus permitted the press access to -- hence public knowledge of -- those personal facts.

On September 10, 1986, an order was entered calling for limited visitation with the child called "Baby M" by only Mrs. Whitehead. The visitation was expanded by order of October 7, 1986. It was in this order that the court requested a Bergen County probation report on the pending custody issue. On September 7, 1986, in an ex-parte order, this court permitted defendant Mrs. Whitehead to take photographs of the child but restrained her from distributing them to the press. The court also denied defendant Mrs. Whitehead's request to permit her dog to visit with the then six-month-old child. On October 20, 1986, supervised visitation was increased to two hours twice weekly.

On September 18, 1986, an order was entered discharging writs of attachment against the Whiteheads' personal property. Writs had been filed against real and personal property of the Whiteheads when it was apparent that they had fled the jurisdiction of this court. The realty was cleared from the lien of the writs on or about October 20, 1986.

On September 25, 1986, a court order required $10,000, which was to be paid pursuant to the surrogate-parenting agreement, to be deposited with the Clerk of the Superior Court. This was accomplished by October 22, 1986.

A motion for pendente lite visitation by the maternal grandparents was denied without prejudice. They were instructed to file a complaint for visitation since they had no standing to file a motion in a law suit in which they were not parties. On October 7, 1986, the maternal grandparents filed such a complaint. Their right to intervene was confirmed on October 14, 1986. Their motion for pendente lite visitation was denied on October 30, 1986, and the ultimate question of their right to visitation was deferred to the plenary trial.

On October 17, 1986, by consent order, the third attorney for Mr. and Mrs. Whitehead was substituted for prior counsel.

On November 6, 1986, the court entered its pretrial order which, inter alia, defined the trial issues.

On November 18, 1986, this court directed that the trial would commence on January 5, 1987, in a bifurcated manner. First to be tried would be the contract issues which, it was believed, would then be reviewed by appellate courts. Having their determination and instruction, the trial would then proceed with appropriate direction on the best-interests issues. The Appellate Division on December 3, 1986, reversed the trial court's order for bifurcated proceedings and required the trial on all issues to begin January 5, 1987. All discovery was required to be completed prior to trial. Faced with the critical scheduling required by this order, plaintiff William Stern appealed to the New Jersey Supreme Court which on December 3, 1986, ordered a non-bifurcated trial to begin as scheduled, but permitted the trial court to define the discovery schedule and further gave the trial court authority to enter its final judgment on less than all issues pleaded.

The trial commenced on January 5, 1987.

Findings of Fact, Conclusions of Law and Opinion.

An estimated 10% to 15% of all married couples are involuntarily childless. This calculation represents a three-fold increase of childless married couples over the last 20 years. It is estimated that between five-hundred thousand and one million married women are unable to have a child related to them genetically or gestationally without some kind of assisted fertilization or uterine implant. National Center for Health Statistics, Vital and Health Statistics (December 1982) ยง 23 # 11 at 13-16, 32.

The demand for this aid is more than the physical act of gestating and birthing a child. It follows from the social and psychological importance people attach to the ideal of having children who are genetically theirs. The desire to reproduce blood lines to connect future generations through one's genes

continues to exert a powerful and pervasive influence. Being unable to bear a child excludes women and men from a range of human activity associated with child bearing and rearing. Hollinger, "From Coitus to Commerce: Legal and Social Consequences of Non-coital Reproduction," 18.4 Journal of Law Reform 865 (1985).

Adoption is often considered, but for reasons of age, religion or unavailability of an adoptable child, it is more and more often deemed impracticable. Nationwide, the wait for an adoptable infant is from three to seven years. Hearings on Baby Selling before the Subcomm. on Children and Youth of the Senate Comm. on Labor and Public Welfare, 94th Cong., 1st Sess. (1975). In 1984, two million couples contended for the 58,000 children placed for adoption. This was a 35 to 1 ratio. Wilson, "Adoption, It's Not Impossible," Business Week (July 8, 1985) at 112.

The dearth of adoptable children is the result of several circumstances. One of the most ironic reasons for the adoptable child shortage is woman's successful effort to have free choice to prevent conception. This had led to increased sexual activity giving rise to greater use of birth-control means as well as the increase of sexually-transmitted disease all to the harm of the female reproductive capability. Couples postpone child bearing until an age when it is more difficult to conceive. A woman's constitutionally protected right to choose abortion has also served to reduce the number of available adoptable children. A final reason for this adoptable child shortage is that changing social mores lead to greater numbers of unwed mothers electing to keep and rear their children in one-parent households. Handel and Sherwyn, "Surrogate Parenting," 18 Trial 57 (1982).

It should be apparent from the foregoing that a large segment of our potential childbearing population is unable to bear a child naturally. Adoption is not available. These facts oblige many people to turn to alternative methods of reproduction to

obtain a family. One method of collaborative reproduction is in vitro fertilization. The basic process of in vitro fertilization is where a wife's egg is removed and introduced to the husband's sperm. The then fertilized embryo is replaced in the wife's womb for gestation. Medical science has developed eight variations of this process including the use of third parties for the donation of egg, sperm and/or gestational capability. Another alternative method of reproduction is artificial insemination. This method provides for the introduction of either a spouse's or a stranger's sperm into the spouse or third-party gestator.

Neither of the foregoing methods involve genetic manipulation -- involved only are conception, gestation and birth -- so we are not dealing with Huxley's Brave New World. A common element in either of the two alternative reproductive methods is the use, where required and appropriate, of a surrogate.

Use of a surrogate calls for the gestator to be artificially inseminated or implanted with a fertilized egg, carry the child to term and after delivery relinquish all parental rights and give the child to its natural father who was, of course, the sperm donor. (In some variations of alternative reproduction even this basic assumption need not be so.). The wife of the biological father then adopts the child.

The development of new techniques and alternatives for non-coital reproduction have given society awesome opportunities. The transformation of the family will continue in the coming years because of these new techniques. As Doctor Judith Greif testified, "We are already dealing with a new family form." Unfortunately, the law is slow to react to the rapid advance of science and changing human behavior. J. Mandler, "Developing a Concept of the Modern Family," 73 Georgetown Law Review 1283 (1985). This minimal pace is made apparent when it is realized that as of this date not one state in this nation has adopted a law that specifically addresses either affirmatively or negatively the concept of surrogate parenting although many studies are in process and legislation

has been introduced. There are two bills pending in the New Jersey Legislature.

It took years of legislative debate and judicial inquiry to define and develop today's laws of abortion and artificial insemination. The issues and dimensions of surrogacy are still evolving, but it is necessary that laws be adopted to give our society a sense of definition and direction if the concept is to be allowed to further develop. With an increasing number of surrogate births, legislation can avoid harm to society, the family and the child. Some of the issues that need legislation are: establishing standards for sperm donors, legitimacy of the child, rights of the biological father's spouse, rights of the biological mother's spouse, rights of the two biological actors as to each other and to the child, qualifications for the surrogate, the allowance of compensation to the surrogate and concerns regarding the imperfect child. Many questions must be answered; answers must come from legislation. If there is no law then society will suffer the negative aspects of this alternative reproduction vehicle that appears to hold out so much hope to the childless who make up a substantial segment of our society.

Today, however, this court can only decide what is before it. France v. A.P.A. Transport Corp., 56 N.J. 500, 504 (1970). It will decide on legal principles alone. This court must not manage morality or temper theology. Its charge is to examine what law there is and apply it to the facts proven in this cause.

This is a nonjury trial. At law, it is the jury that makes the findings of fact. As in all chancery proceedings, the court is the fact finder.

This court has spent six weeks in the actual trial of the issues before it. The parties, with their 38 expert and lay witnesses, have testified. The admissible evidence has been marked. The testimony and the tangible evidence have been carefully listened to, noted and reviewed by this court. The credibility of the witnesses has been examined, tested and weighed.

This court makes the following findings of fact: William Stern was born in Berlin, Germany, on January 27, 1946. His parents were the sole surviving members of his family to escape the Holocaust. Shortly after his birth, the family settled in Pittsburgh, Pennsylvania, where he grew up in the midst of loving parents and financial insecurity. He became a United States citizen when his parents became citizens in 1954. His father, a banker in Germany, worked as a factory hand and short-order cook. His mother worked in a storm window factory. William Stern contributed to the support of his family by working at various after-school jobs. His father died when the boy was 12 years-of-age leaving his mother as his only surviving relative. Ultimately, Mr. Stern and his mother moved to New York where Mr. Stern began college. He graduated New York University and then attended graduate school at the University of Michigan. He has worked in the public sector and in private industry as a research scientist.

Mr. and Mrs. Stern met when they were both graduate students at the University of Michigan and began dating in 1969. The couple was married in East Lansing, Michigan, on July 27, 1974, by a minister friend of the family. By now each had earned a Ph.D. -- Mr. Stern in bio-chemistry and Mrs. Stern in human genetics.

With the death of his mother in 1983, Mr. Stern became the only surviving member of all branches in his family.

Elizabeth Stern is presently 41 years-of-age. She was born and grew up in East Lansing, Michigan, where her father was a professor of bio-chemistry at Michigan State University. Her father died in 1986. Her mother, who is in ill health, and her brother, who is unmarried, continue to live in East Lansing. After receiving her Ph.D., Mrs. Stern decided to go to medical school in order to work in a more people-oriented profession. She testified to being tired of "talking to test tubes." Her pediatric residency was completed in 1978. Mrs. Stern comes from a family background where religion and education have

played important roles. As noted, her father was on the faculty at Michigan State University and was for a time, a lay reader at the family church.

The Sterns had discussed having children prior to and after their marriage but mutually concluded that until Mrs. Stern's pediatric residency was completed, her time to devote to family would be inadequate and thus unfair to the child. It was also concluded that post-residency earnings would make the family more economically secure.

In 1972 and 1978, Mrs. Stern had experienced several episodes of numbness in her fingers and toes and some leg weakness. In December 1979, while she was in her residency, a sharp turn in the progression of Mrs. Stern's malady occurred when she suffered what was ultimately diagnosed as optic neuritis. This is a symptom of multiple sclerosis. Being medically trained and aware of her symptoms, she concluded that she had multiple sclerosis. She sought confirmation from her ophthalmologist who would not confirm her self-diagnosis but rather referred her to a neuro-ophthalmologist, who, after clinical examination, concluded and advised Mrs. Stern that, indeed, she probably had multiple sclerosis. She was dissuaded from further treatment by this doctor who advised there is no known treatment for the disease. After receiving this devastating diagnosis, Mrs. Stern sought professional and peer counseling on the question of whether to continue her medical training. She concluded that she would continue. The Sterns made themselves aware of the current literature on multiple sclerosis and learned that according to the then available information, the disease would be exacerbated during pregnancy. Knowing of her disease and the possibility of exacerbation which could be in several forms such as loss of hearing or vision, bladder control and paralysis, and also learning that a colleague's wife who had multiple sclerosis became paralyzed as a result of the disease and pregnancy, the Sterns concluded that she would not risk debilitating illness by becoming pregnant.

The four experts called by the parties, both hypothetical and clinical, all concluded that Mrs. Stern has multiple sclerosis -- albeit, in a mild form and the possibility of progression is limited to unknown. All experts agreed that current knowledge of the disease instructs that possibility of exacerbation during pregnancy is remote but in the late 1970's, the opposite was the prevailing view. However, in the post-partum period, the doctors now say the risk of exacerbation is from 5% to 40%. Exacerbation was defined as a chance of the disease symptoms worsening, that is, development of a new set of clinical symptoms. Dr. James Donaldson of the University of Connecticut Medical School testified that the type of exacerbation and whether the new symptoms would be temporary or permanent could not be determined. As well, the older a person gets, the higher the risk of a disability.

With regard to Mrs. Stern's disease, all the experts called on this issue, concluded that her decision not to become pregnant in light of her knowledge of her disease, her experienced symptomology, the accepted medical understanding of the medical profession at the time that risk of exacerbation was attendant to pregnancy was a medically reasonable and understandable decision. Once again, there is no apparent preventative -- only treatment after onset. While she testified to being willing to accept all risks of pregnancy for a 36-year old woman, she was not willing to accept the added risks to her health that potential exacerbation of the multiple sclerosis would bring. For Mrs. Stern, onset of the disease would be too late. And while it appears that her disease is presently of the non-progressive type, there is no predictability of the course the disease will take. In Mrs. Stern's mind, there was fixed an understanding that she could not carry a child without great risk to her physical well-being. This understanding is well supported by the credible evidence in this case.

The Sterns explored the possibility of adoption but were discouraged in their inquiries. They learned that because they were of different religions and they were an "older couple,"

adoption of a newborn infant would be extremely difficult. Indeed, the multi-year wait would have them in their very late 30's to early 40's if a child were to become available. Moreover, following the death of William Stern's mother in 1983, the desirability of having his own biological offspring became compelling to William Stern, thus making adoption a less desirable alternative.

This court finds that the Sterns have a close network of friends and neighbors who function as an extended family and provide the Sterns with love and support which is returned in kind by the Sterns. Their friends live in reasonable proximity to plaintiffs, share family joys and sorrows and celebrate family milestones and holidays together.

In 1984, Mr. Stern read an ad from the Infertility Center of New York (hereinafter ICNY) and with the consent of Mrs. Stern, they decided to pursue surrogate parenting. ICNY is an agency that provides surrogate mother candidates to applicants seeking a child through an alternative means of reproduction.

Mary Beth Whitehead is presently 29 years old and is the sixth of eight children born to Joseph and Catherine Messer. Mrs. Whitehead decided to leave high school in mid-tenth grade at the age of 15 1/2 against the advice of her parents. While in school, she held a part-time job primarily as a hand in a pizza-deli shop. She began working at her brother's delicatessen where she met Richard Whitehead. The Whiteheads were married on December 3, 1973. Mrs. Whitehead was 16 years old. Mr. Whitehead was 24 years old.

Richard Whitehead is 37 years old. He is employed as a driver for a waste carting company. He is one of four children born to Edward and June Whitehead. His parents separated about eight years ago. His father, a retired police officer, lives in Florida. His mother continues to live in New Jersey. Shortly after high school graduation, Mr. Whitehead was drafted into the United States Army, served 13 months in Viet Nam and was honorably discharged as a specialist 4th class in 1971. As

a result of a non-alcohol related accident, Mr. Whitehead lost the sight in his left eye.

Their first child, Ryan, was born on July 7, 1974. The Whiteheads had their second child, whom they named Tuesday, on January 27, 1976. Within several months after their daughter's birth, Richard and Mary Beth Whitehead decided that they did not want to have any more children, that they were "content" with the two children and thought they had the "perfect family." There was mutual agreement that Mr. Whitehead should have a vasectomy to prevent further impregnation of Mrs. Whitehead. The Whiteheads had created their family and wanted no further children.

From the date of the marriage in 1973, until moving in 1981 to the home in which they now live in Brick Township, the Whiteheads resided in many places. Indeed, from the date of their marriage through 1981 the Whiteheads moved at least 12 times, frequently living in the homes of other family members.

In or about 1978, the Whiteheads separated during which time Mrs. Whitehead received public assistance. The Monmouth County Welfare Board sued Mr. Whitehead to recover payments made to Mrs. Whitehead. An order for payment was entered against Mr. Whitehead. Eventually, after a warrant was issued for his arrest for non-payment, Mr. Whitehead repaid the monies owed to the Monmouth County Welfare Board.

The Whiteheads filed bankruptcy in or about 1983. The bankruptcy petition, made under oath, failed to disclose an interest the Whiteheads had in real estate and to list ownership of an automobile. To this day, Mrs. Whitehead drives a 1985 Honda registered in her maiden name in the State of Florida. It must be noted that this court document, made under oath and filed in the United States District Court, was, on cross-examination of Mrs. Whitehead, admitted not to be totally truthful and accurate, at least as to those two entries.

There are two mortgages on the Whiteheads' residence. The first mortgage is held by a financial institution. The second is a privately held second purchase money mortgage held by Mrs. Whitehead's sister and brother-in-law. When this suit started, both mortgages were in default and indeed foreclosure actions had begun on both of them. Mrs. Whitehead testified to obtaining a loan to bring the first mortgage current and out of foreclosure. The second mortgage continues in default and suit.

Mr. Whitehead has had various employments during the course of the marriage. Until obtaining his present employment in 1981, Mr. Whitehead has had seven different jobs in the last 13 years. There has also been at least one period of unemployment during which time Mr. Whitehead collected unemployment compensation.

Throughout the marriage and continuing to the present time, Mr. Whitehead has been an alcohol abuser. On two occasions, his driver's license has been suspended for alcohol-related accidents resulting in convictions for violating the motor vehicle laws of New Jersey. On two other occasions, his driving privileges were revoked for failing to comply with an alcoholic rehabilitation program. The revocation of Mr. Whitehead's driving privileges has affected his employment status. Uncontradicted is the fact that Mr. Whitehead has not actively pursued assistance to control his alcohol abuse for some time. Also uncontroverted is the fact that he admitted to a mental health expert that he had gone on two week binges at approximately six-month intervals. His last attendance at a meeting of AA appears to have been in 1980.

Equally of concern to this court is the finding that Mrs. Whitehead has characterized Mr. Whitehead's alcohol abuse as being "his problem." If she has concern that it may affect the family unit and its security, it was not apparent throughout her testimony. She minimized the effect by saying Mr. Whitehead is not a violent or abusive drunk.

Despite recommendations by the professionals who comprise her son's school district child study team, Mrs. Whitehead requested that their recommendations be disregarded and that her wishes be adopted. Dr. Metnick, the school psychologist, testified that in seven years only ten parents, out of hundreds of students tested, have rejected the child study team recommendations.

"Baby M" was born on March 27, 1986. On September 15, 1986 she was examined medically by a pediatrician, Dr. Donald I. Schiffman, and found to be in good health despite allegations by Mrs. Whitehead to the contrary. Dr. Donald Brodzinsky, Dr. Marshall Schechter and Dr. Harold Koplewicz evaluated the infant in December 1986, and January 1987. She has been found to be in the 97th percentile of development for height and weight; her gross and fine motor development are age appropriate and she is, in fact, advanced in several areas. She is a mellow, alert, easy-to-care-for child who is blessed with a "sunniness of disposition that is a delight to see." "Baby M" is a curious and social baby and adjusts to strangers and her social situations easily.

Mr. and Mrs. Whitehead have a son, age 12 and a daughter, age 11. Whether it is through the parents or counsel for the parents, from the early days of this litigation, there have been efforts to infuse these children into the dispute. Indeed, a motion was made for the court to grant leave to have the children intervene as parties and have one other than their father be appointed guardian ad litem. This application was denied. Mrs. Whitehead has on at least two occasions brought her daughter to the courthouse where she was caught up in a media crush -- the child's anguish and fear forever captured in a graphic photo published in many newspapers. She sought to have her daughter testify about her feelings about the baby. This court finds that the issues raised by Mr. and Mrs. Whitehead -- that is, the effect on the Whiteheads' children of the removal of "Baby M" and her possible placement with Mr. and

Mrs. Stern are non-issues. They relate neither to the issue of contract nor to the issue of "Baby M's" best interest. It is for this reason that there will be no fact finding about the two older Whitehead children. The treatment, attention and reaction of the Whiteheads to the care, education and welfare of their children will be of concern to this court and will be developed infra.

In or about August or September 1984, Mr. and Mrs. Stern made inquiries into several surrogate parenting programs throughout the United States. Initially, they had hoped to find a woman who would function as a gestational surrogate only; that is, a woman who would be implanted with an egg of Mrs. Stern fertilized by the sperm of Mr. Stern. At that time, however, in vitro fertilization was largely experimental and not a generally available option.

Mr. and Mrs. Stern contacted the Infertility Center of New York and were sent a brochure. The brochure explained in general terms the surrogate parenting procedure and the services which ICNY offered, including the screening of potential surrogate candidates. On December 3, 1984 Mr. Stern entered into an agreement with ICNY.

Over the next several months Mr. and Mrs. Stern were provided with various biographical data concerning potential surrogate candidates. Mr. and Mrs. Stern reviewed the material and attempted to set up interviews with several candidates. They were eventually told of a potential surrogate enrolled in the program who had been unsuccessful working with another couple for approximately eight months. The woman was described as being very dedicated and anxious to work with another couple. The candidate was Mary Beth Whitehead.

Mrs. Whitehead was enrolled in the ICNY surrogate program since the spring 1984. Mrs. Whitehead testified she was motivated to join the program in the hopes of "giving the most loving gift of happiness to an unfortunate couple." Mrs. Whitehead also felt that the surrogate's fee would assist her in

providing for her children's long range educational goals. Her signed application also reveals these reasons.

Mrs. Whitehead had learned of surrogate parenting through an advertisement in The Asbury Park Press. Mrs. Whitehead spoke of her interest in the surrogacy program to no one other than Mr. Whitehead over the next week. Although Mr. Whitehead was initially opposed to Mrs. Whitehead's involvement in the surrogate program, he ultimately deferred to his wife's wishes. Mrs. Whitehead contacted ICNY and was provided with an application form which she filled out and submitted to the center.

In or about April 1984 Mrs. Whitehead submitted to a psychological evaluation to determine her suitability as a potential surrogate. She was evaluated by interview and testing. The examiner reported that although Mrs. Whitehead expected to have strong feelings about giving up the baby at birth, she was sincere in her plan to become a surrogate mother and has thought extensively about the plan. Although the examiner noted that it would be important to explore with Mrs. Whitehead in more depth whether she would be able to relinquish the child in final analysis, Mrs. Whitehead was recommended as an appropriate candidate for a surrogate volunteer. This report was made for ICNY prior to Mrs. Whitehead working for her first childless couple. It was this fact of prior evaluation that the Sterns relied on. Mrs. Whitehead testified to receiving two counseling sessions at ICNY.

In or about May 1984 ICNY matched Mrs. Whitehead with a married couple (not Mr. and Mrs. Stern) who sought to engage Mrs. Whitehead as a surrogate. The prospective surrogate was presented with a proposed form of surrogate parenting agreement. The proposed agreement was almost identical to the agreement Mrs. Whitehead would later sign with Mr. Stern. As required by the center, she consulted independent counsel on May 24, 1984, who after spending several hours discussing the possible legal ramifications of the agreement with both Mr.

and Mrs. Whitehead, negotiated at Mrs. Whitehead's request several minor changes in the contract. The contract was signed by the Whiteheads and shortly thereafter, she began her efforts to conceive by artificial insemination. Her effort for this couple was unsuccessful. She was then introduced to Mr. and Mrs. Stern.

Mr. and Mrs. Stern met with Mr. and Mrs. Whitehead in January 1985 in New Brunswick, New Jersey. The site was chosen because it is approximately mid-way between the respective residences. The parties discussed the proposed surrogacy arrangement and other elements of their contemplated relationship, including Mrs. Whitehead's duty to relinquish custody of the child to Mr. and Mrs. Stern. Mrs. Whitehead made it clear she would not appear on the Sterns' doorstep. All she wanted was an annual picture and letter report of progress. At the conclusion of the meeting, it was agreed that Mrs. Whitehead would be the surrogate mother of a child to be born for Mr. and Mrs. Stern.

On February 6, 1986 Mr. Stern and Mr. and Mrs. Whitehead signed the surrogate parenting agreement. It was in all material respects the same contract that Mrs. Whitehead signed the spring of 1984. At that time, Mr. and Mrs. Whitehead had consulted with an attorney. As already noted, he read and explained the contract to them. Several minor changes were negotiated. Mrs. Whitehead believed the second contract to be as the first and thus, although able to do so, chose not to seek legal advice prior to signing the subject agreement. It is noted with more than passing importance that Mrs. Stern was not a signatory to the agreement. Mrs. Whitehead testified that her obligation was to attempt conception by artificial insemination, upon conception to carry the child to term, deliver and surrender the child to Mr. Stern renouncing at that time all of her parental rights and acknowledging that doing so would be in the child's best interest. It was also agreed that Mr. Stern's name would appear on the child's birth certificate.

In addition, the contract provided the following: Mrs. Whitehead would assume the risks of the pregnancy and child birth. She would submit to a psychiatric evaluation for which Mr. Stern would pay. Mr. Stern had the right to name the child. That in the event of the death of Mr. Stern, the child would be placed in the custody of Mr. Stern's wife. Mrs. Whitehead would not abort the child. In addition, she would undergo amniocentesis; and if the child were found to have a genetic or congenital abnormality, it would be aborted if Mr. Stern requested it.

That in the event the child possessed genetic or congenital abnormalities William Stern would assume legal responsibility for the child once it was born. The agreement also contained a severability clause.

The Whiteheads and the Sterns clearly understood the terms of the agreement and their obligations.

Mr. Whitehead acknowledged pursuant to N.J.S.A. 9:17-44 that he refused to consent to the artificial insemination of his wife, and thus, pursuant to statute, he is not to be considered the father of the child born to his wife. Reference is made to the results of the HLA blood test (supra) which further confirms the issue of paternity.

Mrs. Whitehead was to be paid $10,000 and all medical expenses including dental expenses for performing her contractual obligations.

Under the present medical definition, Mrs. Whitehead had informed consent as to the procedure, if indeed, such consent was required. She was competent at the time of entering into the contract and was aware of its terms.

Subsequent to entering into the surrogate parenting agreement of February 6, 1985, Mrs. Whitehead was inseminated with the semenal fluid of Mr. Stern nine times. Finally, in July 1985 she conceived.

Mr. and Mrs. Stern were overjoyed with Mrs. Whitehead's pregnancy. They met with Mr. and Mrs. Whitehead and took them to dinner to celebrate.

Shortly after the pregnancy, in or about August 1985, Mr. Stern and Mrs. Stern, in anticipation of the birth of the child, executed new last wills and testaments naming the yet unborn child as a contingent beneficiary of their respective estates.

Over the next several months of Mrs. Whitehead's pregnancy, Mr. and Mrs. Stern papered and painted a room in their home that was to be the nursery.

Throughout the pregnancy Mr. and Mrs. Stern kept in close contact with Mrs. Whitehead telephonically and even visited on several occasions.

While the relationship between Mrs. Whitehead and Mr. Stern grew distant, her relationship with Mrs. Stern grew closer. The relationship subsequently deteriorated as Mrs. Stern insisted that Mrs. Whitehead undergo amniocentesis, take a prescription pharmaceutical in order to control the effects of the difference in blood type between Mr. Stern and Mrs. Whitehead and take certain precautions when Mrs. Whitehead reported an elevation in blood pressure in the last months of pregnancy.

Approximately one month prior to the birth of the child, in February 1986, Mr. and Mrs. Stern learned that Mrs. Whitehead had delayed signing the papers acknowledging Mr. Stern's paternity of the child. Mrs. Whitehead, nevertheless, indicated that she had no intention of repudiating her contract with Mr. Stern. Eventually, Mr. and Mrs. Whitehead signed the acknowledgment of paternity.

"Baby M" was born on March 27, 1986 at Monmouth Medical Center, Long Branch, New Jersey. Mr. and Mrs. Whitehead never told anyone at the hospital that Mrs. Whitehead was a surrogate mother. They prevailed on Mr. and Mrs. Stern not to reveal their relationship to the child. On March 27, 1986 Mr. and Mrs. Stern went to the hospital to see the infant and Mr. and Mrs. Whitehead. Because he was not identified as the

child's father, Mr. Stern could not hold his newborn daughter. He could only view the infant through the nursery window. Mr. Whitehead's name appeared on the birth certificate as the child's father as did the name Sara Elizabeth Whitehead. This information was given to the hospital by either or both of the Whiteheads. Their unilateral action without consulting Mr. Stern was a violation of their understanding with Mr. and Mrs. Stern.

Mrs. Whitehead testified that throughout her pregnancy, she recognized the child being carried was not to be hers but was Mr. Stern's. This view was maintained throughout the pregnancy. Perhaps the delay in signing the adoption consents should have been a clue to a growing ambivalence on the part of Mrs. Whitehead. She testified that at the moment of birth she realized that she could not and would not give up the child. Until then, she understood what she promised to do, understood what she had to do, but when the time came to perform Mrs. Whitehead refused to perform her promise to give Mr. Stern his daughter.

When Mr. and Mrs. Stern visited Mrs. Whitehead and the baby in the hospital on March 28, 1986, Mrs. Whitehead informed them that she was not sure whether she could relinquish the child. Mr. and Mrs. Stern also testified that Mrs. Whitehead expressed sentiments to them to the effect that if she could not keep the child she could not go on living. Because of a failure to execute certain documents needed to adopt the child in Florida, Mr. and Mrs. Whitehead took the baby home to their house in Bricktown, New Jersey, on Sunday, March 30, 1986. Mr. and Mrs. Stern came to take the child in what has been described as an extremely emotional scene in which Mr. and Mrs. Stern expressed gratitude to Mr. and Mrs. Whitehead for what they had done for them and Mrs. Whitehead expressed her difficulties in relinquishing the child to Mr. and Mrs. Stern. There were indications that Mrs. Whitehead was extremely depressed and they questioned her ability to continue living without the child.

Mrs. Whitehead tells of passing a very restless emotional and depressed night. Mr. Whitehead, who said he never experienced such a night, finally told his wife to go to Tenafly and "get our baby."

On March 31, 1986, Mrs. Whitehead telephoned Mr. and Mrs. Stern and requested permission to visit the child. Mr. and Mrs. Stern agreed. At approximately 11:00 a.m. Mrs. Whitehead arrived at the Sterns' home with her sister, Joanne Cahill, a social worker. Mrs. Whitehead alternated between crying and speaking with a flat affectation. She told Mr. and Mrs. Stern that she did not want to live and that she had considered taking the entire bottle of valium pills the night before. Mrs. Whitehead said she wanted to take "Baby M" home with her for a one-week visit. Residence for the one week was offered by the Sterns but was rejected. Out of concern for Mrs. Whitehead's mental health, Mr. and Mrs. Stern acquiesced.

After listening to and observing Mr. Stern who testified about this wrenching moment, this court had no doubt that he fully expected to have his daughter returned to him after the week. His immense concern for Mrs. Whitehead and an almost naive belief in her good will was soon to be destroyed.

On April 1, 1986 Mrs. Whitehead telephoned Mr. and Mrs. Stern and indicated that she was going to be visiting with an aunt. She indicated that she would be unreachable. In fact, Mrs. Whitehead left the State of New Jersey on April 3, 1986 with the five-day old child and traveled to Florida to visit her parents.

The ostensible purpose of the visit was to show the infant to her parents and her son who was living with them. Mr. and Mrs. Stern did not know the five-day old was taken out of the State. They called the Whitehead house and Mr. Whitehead put off their inquiries and asked for their patience.

On April 4, 1986 Mrs. Whitehead telephoned Mrs. Stern. She indicated that she needed time to think about whether she

wanted to keep the child. She told Mr. and Mrs. Stern that Mr. Whitehead had threatened to leave her if she kept the baby.

Mrs. Whitehead remained in Florida, unbeknownst to Mr. and Mrs. Stern, until April 8 or 9, 1986. During this period of time Mrs. Whitehead never indicated to her parents that she was considering keeping the child. Mrs. Whitehead returned to the State of New Jersey on or about April 9, 1986.

On April 9, 1986 Mrs. Stern telephoned the home of Mrs. Whitehead who advised Mrs. Stern that she would surrender custody of the child on Saturday, April 12, 1986. On April 11, 1986, however, Mrs. Whitehead telephoned the Sterns' household and advised Mr. Stern that she needed more time to consider her decision.

On April 12, 1986, Mr. and Mrs. Stern telephoned Mrs. Whitehead at approximately 6:00 a.m. They requested that they be permitted to visit the baby and Mrs. Whitehead agreed. Later that morning, Mr. and Mrs. Stern did, in fact, visit with the child.

During the visit of April 12, 1986 Mrs. Whitehead announced that she had decided to keep the child. Mrs. Whitehead indicated that if threatened with court intervention she would leave the country. Before leaving, Mrs. Stern requested that Mrs. Whitehead permit Mr. Stern to hold the baby one more time. Mrs. Whitehead refused and threatened to telephone the police. Mr. and Mrs. Stern left the Whitehead home without Mr. Stern's daughter.

On or about April 20, 1986 Mr. and Mrs. Whitehead listed their home for sale, indicating in the listing that they might be relocating to Florida.

On May 5, 1986, this court signed an order to show cause directing Mrs. Whitehead to deliver the infant to Mr. Stern. (See Procedural History, supra, for details).

On that same day Mr. and Mrs. Stern accompanied the Bricktown police to the Whitehead residence. They brought

with them the court order giving temporary custody of the child to Mr. and Mrs. Stern. The contents of this order were made known to Mr. and Mrs. Whitehead. Mr. Whitehead admitted his knowledge of the order. Mrs. Whitehead spoke to an attorney during the time when the police were attempting to enforce this court's order. Although Mr. and Mrs. Whitehead understood that they were being ordered by a court to return the child to Mr. and Mrs. Stern, during ensuing confusion Mrs. Whitehead took the child into a bedroom at the rear of the house and passed the child out the window to her waiting husband. That evening Mr. Whitehead took the child, first to his mother's house, and then to his sister's house in Neptune, New Jersey. After the police left, Mrs. Whitehead packed the belongings of the family, and was driven to the home of Mr. Whitehead's sister where the family remained overnight. The following morning, the Whitehead family: Mary Beth Whitehead, Richard Whitehead, their ten-year old daughter and the baby disappeared. Their whereabouts remained unknown to Mr. and Mrs. Stern for 87 days.

On May 6, 1986 Mr. and Mrs. Whitehead, their daughter and the infant child flew to the State of Florida where they were met by Mrs. Whitehead's parents (Catherine and Joseph Messer). Mr. and Mrs. Whitehead remained with the Messers until on or about May 20, 1986, at which time Mr. and Mrs. Whitehead and the infant child left the Messer household. Mr. and Mrs. Whitehead left the Messer ...


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