In re Baby M
Supreme Court of New Jersey, 1988.
109 N.J. 396, 537 A.2d 1227.

Facts:

William Stern and Beth Whitehead agreed to a surrogacy contract. Whitehead was to have the baby and then terminate maternal rights, and in return be paid $10,000. Immediately after the baby was born, however, she realized that she couldn’t part with the child, and then the struggle began:

  • When Stern filed his complaint, Whitehead fled with the child, staying in hotels, motels, etc. to avoid apprehension.
  • Eventually, the police caught up with her.

History:

  • The trial court held that the contract was valid, but that specific performance could not be granted unless that remedy was in the best interests of the child.
  • They held that the child’s best interest was with the Sterns, and awarded Whitehead limited visitation.

Issue:

Is a surrogacy contract a valid and enforceable agreement?

Holding:

No. Case remanded to determine the visitation issue.

Reasoning:

The Supreme Court agreed that the child’s best interest was with the Sterns, but held that the surrogacy contract was invalid – it conflicted with existing statutes and public policies of the State:

  • The use of money to achieve adoption through private placement is illegal and perhaps criminal.
  • A mother’s agreement to surrender the child prior to birth or conception is unenforceable. Even where adoption is through an approved agency, the agreement to surrender occurs only after birth and after the mother has been offered counseling.
  • Although the parties tried to cleverly draft their contract in order to comply with the rules, it was clear that the money was accepted in connection with adoption.

With the contract disposed of, the court treated the case as a dispute between couples over the custody of a child.

The court noted that there are some things money cant buy!

An agreement is void if

(1) a statute provides that it is unenforceable;

(2) performance would violate a statute; or

(3) the interest in enforcement is clearly outweighed by a public policy against enforcement.