|||New Jersey Supreme Court
|||537 A.2d 1227, 109 N.J. 396, 1988.NJ.41301 <http://www.versuslaw.com>
|||Decided: February 3, 1988.
|||IN THE MATTER OF BABY M, A PSEUDONYM FOR AN ACTUAL PERSON
|||On certification to the Superior Court, Chancery Division, Family Part,
Bergen County, whose opinion is reported at
217 N.J. Super. 313
|||Harold J. Cassidy and Alan J. Karcher argued the cause for appellants,
Mary Beth and Richard Whitehead (Cassidy, Foss & San Filippo, attorneys;
Harold J. Cassidy, Alan J. Karcher, Robert W. Ruggieri, Randolph H. Wolf,
and Louis N. Rainone, on the briefs).
|||Gary N. Skoloff argued the cause for respondents, William and Elizabeth
Stern (Skoloff & Wolfe, attorneys; Gary N. Skoloff, Francis W. Donahue,
and Edward J. O'Donnell, on the brief).
|||Lorraine A. Abraham, Guardian ad litem, argued the cause pro se (Lorraine
A. Abraham, attorney; Lorraine A. Abraham and Steven T. Kearns, on the brief).
|||Annette M. Tobia submitted a brief on behalf of amicus curiae Dr. Betsy
P. Aigen, (Spivak & Tobia, attorneys).
|||George B. Gelman submitted a brief on behalf of amicus curiae American
Adoption Congress (Gelman & McNish, attorneys).
|||Steven N. Taieb and Steven F. McDowell, a member of the Wisconsin bar,
submitted a brief on behalf of amicus curiae Catholic League for Religious
and Civil Rights.
|||Steven P. Weissman submitted a brief on behalf of amicus curiae Communications
Workers of America, AFL-CIO.
|||John R. Holsinger, Merrill O'Brien, Mary Sue Henifin, and John H. Hall,
and Terry E. Thornton, members of the New York bar, submitted a brief on
behalf of amicus curiae Concerned United Birthparents, Inc. (Ellenport &
|||David H. Dugan, III, and Joy R. Jowdy, a member of the Texas bar, submitted
a brief on behalf of amici curiae Concerned Women for America, Eagle Forum,
National Legal Foundation, Family Research Council of America, United Families
Foundation, and Judicial Reform Project.
|||Alfred F. Russo and Andrew C. Kimbrell, a member of the Pennsylvania bar,
and Edward Lee Rogers, a member of the District of Columbia bar, submitted
a brief on behalf of amici curiae The Foundation on Economic Trends, Jeremy
Rifkin, Betty Friedan, Gloria Steinem, Gena Corea, Barbara Katz-Rothman,
Lois Gould, Marilyn French, Hazel Henderson, Grace Paley, Evelyn Fox Keller,
Shelly Mindin, Rita Arditti, Dr. Janice Raymond, Dr. Michelle Harrison,
Dr. W. D. White, Sybil Shainwald, Mary Daly, Cathleen Lahay, Karen Malpede,
Phylis Chesler, Kristen Golden, Letty Cottin Pogrebin, and Ynestra King
(Russo & Casey, attorneys).
|||Louis E. Della Torre, Jr., submitted a brief on behalf of amicus curiae
The Gruter Institute for Law and Behavioral Research, Inc. (Schumann, Hession,
Kennelly & Dorment, attorneys).
|||Kathleen E. Kitson, Sharon F. Liebhaber, and Myra Sun, a member of the
Washington bar, submitted a brief on behalf of amici curiae Hudson County
Legal Services Corporation and National Center on Women and Family Law,
Inc. (Timothy K. Madden, Director, Hudson County Legal Services Corporation,
|||Priscilla Read Chenoweth submitted a brief on behalf of amici curiae Committee
for Mother and Child Rights, Inc. and Origins.
|||Herbert D. Hinkle submitted a brief on behalf of amicus curiae National
Association of Surrogate Mothers.
|||Joseph M. Nardi, Jr., and Edward F. Canfield, a member of the District
of Columbia bar, submitted a brief on behalf of amicus curiae The National
Committee for Adoption, Inc. (Lario, Nardi & Gleaner, attorneys).
|||Charlotte Rosin, pro se, submitted a letter in lieu of brief on behalf
of amicus curiae National Infertility Network Exchange.
|||William F. Bolan, Jr., submitted a brief on behalf of amicus curiae New
Jersey Catholic Conference.
|||Paul J. McCurrie and Cyril C. Means, Jr., a member of the Michigan bar,
with whom Priscilla Read Chenoweth and Cathleen M. Halko were on the brief,
submitted a brief on behalf of amici curiae Odyssey Institute International,
Inc., Odyssey Institute of Connecticut, Inc., Florence Fisher, Judianne
Densen-Gerber, Senator Connie Binsfeld, and Angela Holder.
|||Merrilee A. Scilla, pro se, submitted a letter in lieu of brief on behalf
of amicus curiae RESOLVE of Central New Jersey.
|||Jerrold N. Kaminsky submitted a brief on behalf of amicus curiae RESOLVE,
|||Richard J. Traynor and John W. Whitehead, a member of the Virginia bar,
and David A. French, a member of the Michigan bar, submitted a brief on
behalf of amicus curiae The Rutherford Institute (Traynor and Hogan, attorneys).
|||Nadine Taub submitted a brief on behalf of amici curiae Women's Rights
Litigation Clinic at Rutgers Law School, The New York State Coalition on
Women's Legislative Issues, and the National Emergency Civil Liberties Committee.
|||For affirmance in part, reversal in part and remandment -- Chief Justice
Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein.
Opposed -- None. The opinion of the Court was delivered by Wilentz, C.J.
[109 NJ Page 410]
In this matter the Court is asked to determine the validity of a contract
that purports to provide a new way of bringing children into a family. For
a fee of $10,000, a woman agrees to be artificially inseminated with the
semen of another woman's husband; she is to conceive a child, carry it to
term, and after its birth surrender it to the natural father and his wife.
The intent of the contract is that the child's natural mother will thereafter
be forever separated from her child. The wife is to adopt the child, and
she and the natural father are to be
[109 NJ Page 411]
regarded as its parents for all purposes. The contract providing for this
is called a "surrogacy contract,' the natural mother inappropriately
called the "surrogate mother.'
|||We invalidate the surrogacy contract because it conflicts with the law
and public policy of this State. 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. Although in this case we grant custody to the natural
father, the evidence having clearly proved such custody to be in the best
interests of the infant, we void both the termination of the surrogate mother's
parental rights and the adoption of the child by the wife/stepparent. We
thus restore the "surrogate" as the mother of the child. We remand
the issue of the natural mother's visitation rights to the trial court,
since that issue was not reached below and the record before us is not sufficient
to permit us to decide it de novo.
|||We find no offense to our present laws where a woman voluntarily and without
payment agrees to act as a "surrogate" mother, provided that she
is not subject to a binding agreement to surrender her child. Moreover,
our holding today does not preclude the Legislature from altering the current
statutory scheme, within constitutional limits, so as to permit surrogacy
contracts. Under current law, however, the surrogacy agreement before us
is illegal and invalid.
|||In February 1985, William Stern and Mary Beth Whitehead entered into a
surrogacy contract. It recited that Stern's wife, Elizabeth, was infertile,
that they wanted a child, and that Mrs. Whitehead was willing to provide
that child as the mother with Mr. Stern as the father.
[109 NJ Page 412]
The contract provided that through artificial insemination using Mr. Stern's
sperm, Mrs. Whitehead would become pregnant, carry the child to term, bear
it, deliver it to the Sterns, and thereafter do whatever was necessary to
terminate her maternal rights so that Mrs. Stern could thereafter adopt
the child. Mrs. Whitehead's husband, Richard,*fn1
was also a party to the contract; Mrs. Stern was not. Mr. Whitehead promised
to do all acts necessary to rebut the presumption of paternity under the
Parentage Act. N.J.S.A. 9:17-43a(1), -44a. Although Mrs. Stern was not a
party to the surrogacy agreement, the contract gave her sole custody of
the child in the event of Mr. Stern's death. Mrs. Stern's status as a nonparty
to the surrogate parenting agreement presumably was to avoid the application
of the baby-selling statute to this arrangement. N.J.S.A. 9:3-54.
|||Mr. Stern, on his part, agreed to attempt the artificial insemination
and to pay Mrs. Whitehead $10,000 after the child's birth, on its delivery
to him. In a separate contract, Mr. Stern agreed to pay $7,500 to the Infertility
Center of New York ("ICNY"). The Center's advertising campaigns
solicit surrogate mothers and encourage infertile couples to consider surrogacy.
ICNY arranged for the surrogacy contract by bringing the parties together,
explaining the process to them, furnishing the contractual form,*fn2
and providing legal counsel.
|||The history of the parties' involvement in this arrangement suggests their
good faith. William and Elizabeth Stern were
[109 NJ Page 413]
married in July 1974, having met at the University of Michigan, where both
were Ph.D. candidates. Due to financial considerations and Mrs. Stern's
pursuit of a medical degree and residency, they decided to defer starting
a family until 1981. Before then, however, Mrs. Stern learned that she might
have multiple sclerosis and that the disease in some cases renders pregnancy
a serious health risk. Her anxiety appears to have exceeded the actual risk,
which current medical authorities assess as minimal. Nonetheless that anxiety
was evidently quite real, Mrs. Stern fearing that pregnancy might precipitate
blindness, paraplegia, or other forms of debilitation. Based on the perceived
risk, the Sterns decided to forego having their own children. The decision
had special significance for Mr. Stern. Most of his family had been destroyed
in the Holocaust. As the family's only survivor, he very much wanted to
continue his bloodline.
|||Initially the Sterns considered adoption, but were discouraged by the
substantial delay apparently involved and by the potential problem they
saw arising from their age and their differing religious backgrounds. They
were most eager for some other means to start a family.
|||The paths of Mrs. Whitehead and the Sterns to surrogacy were similar.
Both responded to advertising by ICNY. The Sterns' response, following their
inquiries into adoption, was the result of their long-standing decision
to have a child. Mrs. Whitehead's response apparently resulted from her
sympathy with family members and others who could have no children (she
stated that she wanted to give another couple the "gift of life");
she also wanted the $10,000 to help her family.
|||Both parties, undoubtedly because of their own self-interest, were less
sensitive to the implications of the transaction than they might otherwise
have been. Mrs. Whitehead, for instance, appears not to have been concerned
about whether the Sterns would make good parents for her child; the Sterns,
on their part, while conscious of the obvious possibility that surrendering
[109 NJ Page 414]
the child might cause grief to Mrs. Whitehead, overcame their qualms because
of their desire for a child. At any rate, both the Sterns and Mrs. Whitehead
were committed to the arrangement; both thought it right and constructive.
|||Mrs. Whitehead had reached her decision concerning surrogacy before the
Sterns, and had actually been involved as a potential surrogate mother with
another couple. After numerous unsuccessful artificial inseminations, that
effort was abandoned. Thereafter, the Sterns learned of the Infertility
Center, the possibilities of surrogacy, and of Mary Beth Whitehead. The
two couples met to discuss the surrogacy arrangement and decided to go forward.
On February 6, 1985, Mr. Stern and Mr. and Mrs. Whitehead executed the surrogate
parenting agreement. After several artificial inseminations over a period
of months, Mrs. Whitehead became pregnant. The pregnancy was uneventful
and on March 27, 1986, Baby M was born.
|||Not wishing anyone at the hospital to be aware of the surrogacy arrangement,
Mr. and Mrs. Whitehead appeared to all as the proud parents of a healthy
female child. Her birth certificate indicated her name to be Sara Elizabeth
Whitehead and her father to be Richard Whitehead. In accordance with Mrs.
Whitehead's request, the Sterns visited the hospital unobtrusively to see
the newborn child.
|||Mrs. Whitehead realized, almost from the moment of birth, that she could
not part with this child. She had felt a bond with it even during pregnancy.
Some indication of the attachment was conveyed to the Sterns at the hospital
when they told Mrs. Whitehead what they were going to name the baby. She
apparently broke into tears and indicated that she did not know if she could
give up the child. She talked about how the baby looked like her other daughter,
and made it clear that she was experiencing great difficulty with the decision.
|||Nonetheless, Mrs. Whitehead was, for the moment, true to her word. Despite
powerful inclinations to the contrary, she
[109 NJ Page 415]
turned her child over to the Sterns on March 30 at the Whiteheads' home.
|||The Sterns were thrilled with their new child. They had planned extensively
for its arrival, far beyond the practical furnishing of a room for her.
It was a time of joyful celebration -- not just for them but for their friends
as well. The Sterns looked forward to raising their daughter, whom they
named Melissa. While aware by then that Mrs. Whitehead was undergoing an
emotional crisis, they were as yet not cognizant of the depth of that crisis
and its implications for their newly-enlarged family.
|||Later in the evening of March 30, Mrs. Whitehead became deeply disturbed,
disconsolate, stricken with unbearable sadness. She had to have her child.
She could not eat, sleep, or concentrate on anything other than her need
for her baby. The next day she went to the Sterns' home and told them how
much she was suffering.
|||The depth of Mrs. Whitehead's despair surprised and frightened the Sterns.
She told them that she could not live without her baby, that she must have
her, even if only for one week, that thereafter she would surrender her
child. The Sterns, concerned that Mrs. Whitehead might indeed commit suicide,
not wanting under any circumstances to risk that, and in any event believing
that Mrs. Whitehead would keep her word, turned the child over to her. It
was not until four months later, after a series of attempts to regain possession
of the child, that Melissa was returned to the Sterns, having been forcibly
removed from the home where she was then living with Mr. and Mrs. Whitehead,
the home in Florida owned by Mary Beth Whitehead's parents.
|||The struggle over Baby M began when it became apparent that Mrs. Whitehead
could not return the child to Mr. Stern. Due to Mrs. Whitehead's refusal
to relinquish the baby, Mr. Stern filed a complaint seeking enforcement
of the surrogacy contract. He alleged, accurately, that Mrs. Whitehead had
[109 NJ Page 416]
only refused to comply with the surrogacy contract but had threatened to
flee from New Jersey with the child in order to avoid even the possibility
of his obtaining custody. The court papers asserted that if Mrs. Whitehead
were to be given notice of the application for an order requiring her to
relinquish custody, she would, prior to the hearing, leave the state with
the baby. And that is precisely what she did. After the order was entered,
ex parte, the process server, aided by the police, in the presence of the
Sterns, entered Mrs. Whitehead's home to execute the order. Mr. Whitehead
fled with the child, who had been handed to him through a window while those
who came to enforce the order were thrown off balance by a dispute over
the child's current name.
|||The Whiteheads immediately fled to Florida with Baby M. They stayed initially
with Mrs. Whitehead's parents, where one of Mrs. Whitehead's children had
been living. For the next three months, the Whiteheads and Melissa lived
at roughly twenty different hotels, motels, and homes in order to avoid
apprehension. From time to time Mrs. Whitehead would call Mr. Stern to discuss
the matter; the conversations, recorded by Mr. Stern on advice of counsel,
show an escalating dispute about rights, morality, and power, accompanied
by threats of Mrs. Whitehead to kill herself, to kill the child, and falsely
to accuse Mr. Stern of sexually molesting Mrs. Whitehead's other daughter.
|||Eventually the Sterns discovered where the Whiteheads were staying, commenced
supplementary proceedings in Florida, and obtained an order requiring the
Whiteheads to turn over the child. Police in Florida enforced the order,
forcibly removing the child from her grandparents' home. She was soon thereafter
brought to New Jersey and turned over to the Sterns. The prior order of
the court, issued ex parte, awarding custody of the child to the Sterns
pendente lite, was reaffirmed by the trial court after consideration of
the certified representations of the parties (both represented by counsel)
concerning the unusual sequence of events that had unfolded. Pending final
[109 NJ Page 417]
judgment, Mrs. Whitehead was awarded limited visitation with Baby M.
|||The Sterns' complaint, in addition to seeking possession and ultimately
custody of the child, sought enforcement of the surrogacy contract. Pursuant
to the contract, it asked that the child be permanently placed in their
custody, that Mrs. Whitehead's parental rights be terminated, and that Mrs.
Stern be allowed to adopt the child, i.e., that, for all purposes, Melissa
become the Sterns' child.
|||The trial took thirty-two days over a period of more than two months.
It included numerous interlocutory appeals and attempted interlocutory appeals.
There were twenty-three witnesses to the facts recited above and fifteen
expert witnesses, eleven testifying on the issue of custody and four on
the subject of Mrs. Stern's multiple sclerosis; the bulk of the testimony
was devoted to determining the parenting arrangement most compatible with
the child's best interests. Soon after the conclusion of the trial, the
trial court announced its opinion from the bench.
217 N.J. Super. 313
(1987). It held that the surrogacy contract was valid; ordered that Mrs.
Whitehead's parental rights be terminated and that sole custody of the child
be granted to Mr. Stern; and, after hearing brief testimony from Mrs. Stern,
immediately entered an order allowing the adoption of Melissa by Mrs. Stern,
all in accordance with the surrogacy contract. Pending the outcome of the
appeal, we granted a continuation of visitation to Mrs. Whitehead, although
slightly more limited than the visitation allowed during the trial.
|||Although clearly expressing its view that the surrogacy contract was valid,
the trial court devoted the major portion of its opinion to the question
of the baby's best interests. The inconsistency is apparent. The surrogacy
contract calls for the surrender of the child to the Sterns, permanent and
sole custody in the Sterns, and termination of Mrs. Whitehead's parental
rights, all without qualification, all regardless of any evaluation
[109 NJ Page 418]
of the best interests of the child. As a matter of fact the contract recites
(even before the child was conceived) that it is in the best interests of
the child to be placed with Mr. Stern. In effect, the trial court awarded
custody to Mr. Stern, the natural father, based on the same kind of evidence
and analysis as might be expected had no surrogacy contract existed. Its
rationalization, however, was that while the surrogacy contract was valid,
specific performance would not be granted unless that remedy was in the
best interests of the child. The factual issues confronted and decided by
the trial court were the same as if Mr. Stern and Mrs. Whitehead had had
the child out of wedlock, intended or unintended, and then disagreed about
custody. The trial court's awareness of the irrelevance of the contract
in the court's determination of custody is suggested by its remark that
beyond the question of the child's best interests, "[a]ll other concerns
raised by counsel constitute commentary."
217 N.J. Super. at 323.
|||On the question of best interests -- and we agree, but for different reasons,
that custody was the critical issue -- the court's analysis of the testimony
was perceptive, demonstrating both its understanding of the case and its
considerable experience in these matters. We agree substantially with both
its analysis and conclusions on the matter of custody.
|||The court's review and analysis of the surrogacy contract, however, is
not at all in accord with ours. The trial court concluded that the various
statutes governing this matter, including those concerning adoption, termination
of parental rights, and payment of money in connection with adoptions, do
not apply to surrogacy contracts. Id. at 372-73. It reasoned that because
the Legislature did not have surrogacy contracts in mind when it passed
those laws, those laws were therefore irrelevant. Ibid. Thus, assuming it
was writing on a clean slate, the trial court analyzed the interests involved
and the power of the court to accommodate them. It then held that surrogacy
contracts are valid and should be enforced, id. at
[109 NJ Page 419]
388, and furthermore that Mr. Stern's rights under the surrogacy contract
were constitutionally protected. Id. at 385-88.
|||Mrs. Whitehead appealed. This Court granted direct certification. 107
N.J. 140 (1987). The briefs of the parties on appeal were joined by numerous
briefs filed by amici expressing various interests and views on surrogacy
and on this case. We have found many of them helpful in resolving the issues
|||Mrs. Whitehead contends that the surrogacy contract, for a variety of
reasons, is invalid. She contends that it conflicts with public policy since
it guarantees that the child will not have the nurturing of both natural
parents -- presumably New Jersey's goal for families. She further argues
that it deprives the mother of her constitutional right to the companionship
of her child, and that it conflicts with statutes concerning termination
of parental rights and adoption. With the contract thus void, Mrs. Whitehead
claims primary custody (with visitation rights in Mr. Stern) both on a best
interests basis (stressing the "tender years" doctrine) as well
as on the policy basis of discouraging surrogacy contracts. She maintains
that even if custody would ordinarily go to Mr. Stern, here it should be
awarded to Mrs. Whitehead to deter future surrogacy arrangements.
|||In a brief filed after oral argument, counsel for Mrs. Whitehead suggests
that the standard for determining best interests where the infant resulted
from a surrogacy contract is that the child should be placed with the mother
absent a showing of unfitness. All parties agree that no expert testified
that Mary Beth Whitehead was unfit as a mother; the trial court expressly
found that she was not "unfit," that, on the contrary, "she
is a good mother for and to her older children," 217 N.J. Super. at
397; and no one now claims anything to the contrary.
|||One of the repeated themes put forth by Mrs. Whitehead is that the court's
initial ex parte order granting custody to the Sterns during the trial was
a substantial factor in the ultimate
[109 NJ Page 420]
"best interests" determination. That initial order, claimed to
be erroneous by Mrs. Whitehead, not only established Melissa as part of
the Stern family, but brought enormous pressure on Mrs. Whitehead. The order
brought the weight of the state behind the Sterns' attempt, ultimately successful,
to gain possession of the child. The resulting pressure, Mrs. Whitehead
contends, caused her to act in ways that were atypical of her ordinary behavior
when not under stress, and to act in ways that were thought to be inimical
to the child's best interests in that they demonstrated a failure of character,
maturity, and consistency. She claims that any mother who truly loved her
child might so respond and that it is doubly unfair to judge her on the
basis of her reaction to an extreme situation rarely faced by any mother,
where that situation was itself caused by an erroneous order of the court.
Therefore, according to Mrs. Whitehead, the erroneous ex parte order precipitated
a series of events that proved instrumental in the final result.*fn3
|||The Sterns claim that the surrogacy contract is valid and should be enforced,
largely for the reasons given by the trial court. They claim a constitutional
right of privacy, which includes the right of procreation, and the right
of consenting adults to deal with matters of reproduction as they see fit.
As for the child's best interests, their position is factual: given all
of the circumstances, the child is better off in their custody with no residual
parental rights reserved for Mrs. Whitehead.
|||Of considerable interest in this clash of views is the position of the
child's guardian ad litem, wisely appointed by the court at the outset of
the litigation. As the child's representative, her role in the litigation,
as she viewed it, was solely to protect the child's best interests. She
therefore took no position on the validity of the surrogacy contract, and
[109 NJ Page 421]
devoted her energies to obtaining expert testimony uninfluenced by any interest
other than the child's. We agree with the guardian's perception of her role
in this litigation. She appropriately refrained from taking any position
that might have appeared to compromise her role as the child's advocate.
She first took the position, based on her experts' testimony, that the Sterns
should have primary custody, and that while Mrs. Whitehead's parental rights
should not be terminated, no visitation should be allowed for five years.
As a result of subsequent developments, mentioned infra, her view has changed.
She now recommends that no visitation be allowed at least until Baby M reaches
|||Although some of the experts' opinions touched on visitation, the major
issue they addressed was whether custody should be reposed in the Sterns
or in the Whiteheads. The trial court, consistent in this respect with its
view that the surrogacy contract was valid, did not deal at all with the
question of visitation. Having concluded that the best interests of the
child called for custody in the Sterns, the trial court enforced the operative
provisions of the surrogacy contract, terminated Mrs. Whitehead's parental
rights, and granted an adoption to Mrs. Stern. Explicit in the ruling was
the conclusion that the best interests determination removed whatever impediment
might have existed in enforcing the surrogacy contract. This Court, therefore,
is without guidance from the trial court on the visitation issue, an issue
of considerable importance in any event, and especially important in view
of our determination that the surrogacy contract is invalid.
|||INVALIDITY AND UNENFORCEABILITY OF SURROGACY CONTRACT
|||We have concluded that this surrogacy contract is invalid. Our conclusion
has two bases: direct conflict with existing
[109 NJ Page 422]
statutes and conflict with the public policies of this State, as expressed
in its statutory and decisional law.
|||One of the surrogacy contract's basic purposes, to achieve the adoption
of a child through private placement, though permitted in New Jersey "is
very much disfavored." Sees v. Baber,
74 N.J. 201,
217 (1977). 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. N.J.S.A. 9:3-54. 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
74 N.J. at 212-14.
Even where the adoption is through an approved agency, the formal agreement
to surrender occurs only after birth (as we read N.J.S.A. 9:2-16 and -17,
and similar statutes), and then, by regulation, only after the birth mother
has been offered counseling. N.J.A.C. 10:121A-5.4(c). Integral to these
invalid provisions of the surrogacy contract is the related agreement, equally
invalid, on the part of the natural mother to cooperate with, and not to
contest, proceedings to terminate her parental rights, as well as her contractual
concession, in aid of the adoption, that the child's best interests would
be served by awarding custody to the natural father and his wife -- all
of this before she has even conceived, and, in some cases, before she has
the slightest idea of what the natural father and adoptive mother are like.
|||The foregoing provisions not only directly conflict with New Jersey statutes,
but also offend long-established State policies. These critical terms, which
are at the heart of the contract, are invalid and unenforceable; the conclusion
therefore follows, without more, that the entire contract is unenforceable.
[109 NJ Page 423]
A. Conflict with Statutory Provisions
|||The surrogacy contract conflicts with: (1) laws prohibiting the use of
money in connection with adoptions; (2) laws requiring proof of parental
unfitness or abandonment before termination of parental rights is ordered
or an adoption is granted; and (3) laws that make surrender of custody and
consent to adoption revocable in private placement adoptions.
|||(1) Our law prohibits paying or accepting money in connection with any
placement of a child for adoption. N.J.S.A. 9:3-54a. Violation is a high
misdemeanor. N.J.S.A. 9:3-54c. Excepted are fees of an approved agency (which
must be a non-profit entity, N.J.S.A. 9:3-38a) and certain expenses in connection
with childbirth. N.J.S.A. 9:3-54b.*fn4
|||Considerable care was taken in this case to structure the surrogacy arrangement
so as not to violate this prohibition. The arrangement was structured as
follows: the adopting parent, Mrs. Stern, was not a party to the surrogacy
contract; the money paid to Mrs. Whitehead was stated to be for her services
-- not for the adoption; the sole purpose of the contract was stated as
being that "of giving a child to William Stern, its natural and biological
father"; the money was purported to be
[109 NJ Page 424]
"compensation for services and expenses and in no way . . . a fee for
termination of parental rights or a payment in exchange for consent to surrender
a child for adoption"; the fee to the Infertility Center ($7,500) was
stated to be for legal representation, advice, administrative work, and
other "services." Nevertheless, it seems clear that the money
was paid and accepted in connection with an adoption.
|||The Infertility Center's major role was first as a "finder"
of the surrogate mother whose child was to be adopted, and second as the
arranger of all proceedings that led to the adoption. Its role as adoption
finder is demonstrated by the provision requiring Mr. Stern to pay another
$7,500 if he uses Mary Beth Whitehead again as a surrogate, and by ICNY's
agreement to "coordinate arrangements for the adoption of the child
by the wife." The surrogacy agreement requires Mrs. Whitehead to surrender
Baby M for the purposes of adoption. The agreement notes that Mr. and Mrs.
Stern wanted to have a child, and provides that the child be "placed"
with Mrs. Stern in the event Mr. Stern dies before the child is born. The
payment of the $10,000 occurs only on surrender of custody of the child
and "completion of the duties and obligations" of Mrs. Whitehead,
including termination of her parental rights to facilitate adoption by Mrs.
Stern. As for the contention that the Sterns are paying only for services
and not for an adoption, we need note only that they would pay nothing in
the event the child died before the fourth month of pregnancy, and only
$1,000 if the child were stillborn, even though the "services"
had been fully rendered. Additionally, one of Mrs. Whitehead's estimated
costs, to be assumed by Mr. Stern, was an "Adoption Fee," presumably
for Mrs. Whitehead's incidental costs in connection with the adoption.
|||Mr. Stern knew he was paying for the adoption of a child; Mrs. Whitehead
knew she was accepting money so that a child might be adopted; the Infertility
Center knew that it was being paid for assisting in the adoption of a child.
The actions of all three worked to frustrate the goals of the statute. It
[109 NJ Page 425]
credulity to claim that these arrangements, touted by those in the surrogacy
business as an attractive alternative to the usual route leading to an adoption,
really amount to something other than a private placement adoption for money.
|||The prohibition of our statute is strong. Violation constitutes a high
misdemeanor, N.J.S.A. 9:3-54c, a third-degree crime, N.J.S.A. 2C:43-1b,
carrying a penalty of three to five years imprisonment. N.J.S.A. 2C:43-6a(3).
The evils inherent in baby-bartering are loathsome for a myriad of reasons.
The child is sold without regard for whether the purchasers will be suitable
parents. N. Baker, Baby Selling: The Scandal of Black Market Adoption 7
(1978). The natural mother does not receive the benefit of counseling and
guidance to assist her in making a decision that may affect her for a lifetime.
In fact, the monetary incentive to sell her child may, depending on her
financial circumstances, make her decision less voluntary. Id. at 44. Furthermore,
the adoptive parents*fn5 may not be fully
informed of the natural parents' medical history.
|||Baby-selling potentially results in the exploitation of all parties involved.
Ibid. Conversely, adoption statutes seek to further humanitarian goals,
foremost among them the best interests of the child. H. Witmer, E. Herzog,
E. Weinstein, & M. Sullivan, Independent Adoptions: A Follow-Up Study
32 (1967). The negative consequences of baby-buying are potentially present
in the surrogacy context, especially the potential for placing and adopting
a child without regard to the interest of the child or the natural mother.
|||(2) The termination of Mrs. Whitehead's parental rights, called for by
the surrogacy contract and actually ordered by the court, 217 N.J. Super.
at 399-400, fails to comply
[109 NJ Page 426]
with the stringent requirements of New Jersey law. Our law, recognizing
the finality of any termination of parental rights, provides for such termination
only where there has been a voluntary surrender of a child to an approved
agency or to the Division of Youth and Family Services ("DYFS"),
accompanied by a formal document acknowledging termination of parental rights,
N.J.S.A. 9:2-16, -17; N.J.S.A. 9:3-41; N.J.S.A. 30:4C-23, or where there
has been a showing of parental abandonment or unfitness. A termination may
ordinarily take one of three forms: an action by an approved agency, an
action by DYFS, or an action in connection with a private placement adoption.
The three are governed by separate statutes, but the standards for termination
are substantially the same, except that whereas a written surrender is effective
when made to an approved agency or to DYFS, there is no provision for it
in the private placement context. See N.J.S.A. 9:2-14; N.J.S.A. 30:4C-23.
|||N.J.S.A. 9:2-18 to -20 governs an action by an approved agency to terminate
parental rights. Such an action, whether or not in conjunction with a pending
adoption, may proceed on proof of written surrender, N.J.S.A. 9:2-16, -17,
"forsaken parental obligation," or other specific grounds such
as death or insanity, N.J.S.A. 9:2-19. Where the parent has not executed
a formal consent, termination requires a showing of "forsaken parental
obligation," i.e., "willful and continuous neglect or failure
to perform the natural and regular obligations of care and support of a
child." N.J.S.A. 9:2-13(d). See also N.J.S.A. 9:3-46a, -47c.
|||Where DYFS is the agency seeking termination, the requirements are similarly
stringent, although at first glance they do not appear to be so. DYFS can,
as can any approved agency, accept a formal voluntary surrender or writing
having the effect of termination and giving DYFS the right to place the
child for adoption. N.J.S.A. 30:4C-23. Absent such formal written surrender
and consent, similar to that given to approved agencies, DYFS can terminate
parental rights in an
[109 NJ Page 427]
action for guardianship by proving that "the best interests of such
child require that he be placed under proper guardianship." N.J.S.A.
30:4C-20. Despite this "best interests" language, however, this
Court has recently held in New Jersey Div. of Youth & Family Servs.
103 N.J. 591
(1986), that in order for DYFS to terminate parental rights it must prove,
by clear and convincing evidence, that "[t]he child's health and development
have been or will be seriously impaired by the parental relationship,"
id. at 604, that "[t]he parents are unable or unwilling to eliminate
the harm and delaying permanent placement will add to the harm," id.
at 605, that "[t]he court has considered alternatives to termination,"
id. at 608, and that "[t]he termination of parental rights will not
do more harm than good," id. at 610. This interpretation of the statutory
language requires a most substantial showing of harm to the child if the
parental relationship were to continue, far exceeding anything that a "best
interests" test connotes.
|||In order to terminate parental rights under the private placement adoption
statute, there must be a finding of "intentional abandonment or a very
substantial neglect of parental duties without a reasonable expectation
of a reversal of that conduct in the future." N.J.S.A. 9:3-48c(1).
This requirement is similar to that of the prior law (i.e., "forsaken
parental obligations," L. 1953, c. 264, § 2(d) (codified at N.J.S.A.
9:3-18(d) (repealed))), and to that of the law providing for termination
through actions by approved agencies, N.J.S.A. 9:2-13(d). See also In re
Adoption by J.J.P.,
175 N.J. Super. 420,
427 (App.Div.1980) (noting that the language of the termination provision
in the present statute, N.J.S.A. 9:3-48c(1), derives from this Court's construction
of the prior statute in In re Adoption of Children by D.,
61 N.J. 89,
|||In Sees v. Baber,
74 N.J. 201
(1977) we distinguished the requirements for terminating parental rights
in a private placement adoption from those required in an approved agency
adoption. We stated that in an unregulated private placement, "neither
consent nor voluntary surrender is singled out as a
[109 NJ Page 428]
statutory factor in terminating parental rights." Id. at 213. Sees
established that without proof that parental obligations had been forsaken,
there would be no termination in a private placement setting.
|||As the trial court recognized, without a valid termination there can be
no adoption. In re Adoption of Children by D., supra,
61 N.J. at 95.
This requirement applies to all adoptions, whether they be private placements,
ibid., or agency adoptions, N.J.S.A. 9:3-46a, -47c.
|||Our statutes, and the cases interpreting them, leave no doubt that where
there has been no written surrender to an approved agency or to DYFS, terminationh
of parental rights will not be granted in this state absent a very strong
showing of abandonment or neglect. See, e.g., Sorentino v. Family &
Children's Soc'y of Elizabeth,
74 N.J. 313
(1977) (Sorentino II); Sees v. Baber,
74 N.J. 201
(1977); Sorentino v. Family & Children's Soc'y of Elizabeth,
72 N.J. 127
(1976) (Sorentino I); In re Adoption of Children by D., supra,
61 N.J. 89.
That showing is required in every context in which termination of parental
rights is sought, be it an action by an approved agency, an action by DYFS,
or a private placement adoption proceeding, even where the petitioning adoptive
parent is, as here, a stepparent. While the statutes make certain procedural
allowances when stepparents are involved, N.J.S.A. 9:3-48a(2), -48a(4),
-48c(4), the substantive requirement for terminating the natural parents'
rights is not relaxed one iota. N.J.S.A. 9:3-48c(1); In re Adoption of Children
by D., supra,
61 N.J. at 94-95;
In re Adoption by J.J.P., supra,
175 N.J. Super. at 426-28;
In re N.,
96 N.J. Super. 415,
423-27 (App.Div.1967). It is clear that a "best interests" determination
is never sufficient to terminate parental rights; the statutory criteria
[109 NJ Page 429]
|||In this case a termination of parental rights was obtained not by proving
the statutory prerequisites but by claiming the benefit of contractual provisions.
From all that has been stated above, it is clear that a contractual agreement
to abandon one's parental rights, or not to contest a termination action,
will not be enforced in our courts. The Legislature would not have so carefully,
so consistently, and so substantially restricted termination of parental
rights if it had intended to allow termination to be achieved by one short
sentence in a contract.
|||Since the termination was invalid,*fn7
it follows, as noted above, that adoption of Melissa by Mrs. Stern could
not properly be granted.
|||(3) The provision in the surrogacy contract stating that Mary Beth Whitehead
agrees to "surrender custody . . . and terminate all parental rights"
contains no clause giving her a right to rescind. It is intended to be an
irrevocable consent to surrender the child for adoption -- in other words,
[109 NJ Page 430]
commitment by Mrs. Whitehead to turn Baby M over to the Sterns and thereafter
to allow termination of her parental rights. The trial court required a
"best interests" showing as a condition to granting specific performance
of the surrogacy contract. 217 N.J. Super. at 399-400. Having decided the
"best interests" issue in favor of the Sterns, that court's order
included, among other things, specific performance of this agreement to
surrender custody and terminate all parental rights.
|||Mrs. Whitehead, shortly after the child's birth, had attempted to revoke
her consent and surrender by refusing, after the Sterns had allowed her
to have the child "just for one week," to return Baby M to them.
The trial court's award of specific performance therefore reflects its view
that the consent to surrender the child was irrevocable. We accept the trial
court's construction of the contract; indeed it appears quite clear that
this was the parties' intent. Such a provision, however, making irrevocable
the natural mother's consent to surrender custody of her child in a private
placement adoption, clearly conflicts with New Jersey law.
|||Our analysis commences with the statute providing for surrender of custody
to an approved agency and termination of parental rights on the suit of
that agency. The two basic provisions of the statute are N.J.S.A. 9:2-14
and 9:2-16. The former provides explicitly that
|||[e]xcept as otherwise provided by law or by order or judgment of a court
of competent jurisdiction or by testamentary disposition, no surrender of
the custody of a child shall be valid in this state unless made to an approved
agency pursuant to the provisions of this act. . . .
|||There is no exception "provided by law," and it is not clear
that there could be any "order or judgment of a court of competent
jurisdiction" validating a surrender of custody as a basis for adoption
when that surrender was not in conformance with the statute. Requirements
for a voluntary surrender to an approved agency are set forth in N.J.S.A.
9:2-16. This section allows an approved agency to take a voluntary surrender
[109 NJ Page 431]
custody from the parent of a child but provides stringent requirements as
a condition to its validity. The surrender must be in writing, must be in
such form as is required for the recording of a deed, and, pursuant to N.J.S.A.
|||be such as to declare that the person executing the same desires to relinquish
the custody of the child, acknowledge the termination of parental rights
as to such custody in favor of the approved agency, and acknowledge full
understanding of the effect of such surrender as provided by this act.
|||If the foregoing requirements are met, the consent, the voluntary surrender
|||shall be valid whether or not the person giving same is a minor and shall
be irrevocable except at the discretion of the approved agency taking such
surrender or upon order or judgment of a court of competent jurisdiction,
setting aside such surrender upon proof of fraud, duress, or misrepresentation.
[ N.J.S.A. 9:2-16.]
|||The importance of that irrevocability is that the surrender itself gives
the agency the power to obtain termination of parental rights -- in other
words, permanent separation of the parent from the child, leading in the
ordinary case to an adoption. N.J.S.A. 9:2-18 to -20.
|||This statutory pattern, providing for a surrender in writing and for termination
of parental rights by an approved agency, is generally followed in connection
with adoption proceedings and proceedings by DYFS to obtain permanent custody
of a child. Our adoption statute repeats the requirements necessary to accomplish
an irrevocable surrender to an approved agency in both form and substance.
N.J.S.A. 9:3-41a. It provides that the surrender "shall be valid and
binding without regard to the age of the person executing the surrender,"
ibid.; and although the word "irrevocable" is not used, that seems
clearly to be the intent of the provision. The statute speaks of such surrender
as constituting "relinquishment of such person's parental rights in
or guardianship or custody of the child named therein and consent by such
person to adoption of the child." Ibid. (emphasis supplied). We emphasize
"named therein," for we construe the statute to allow a surrender
only after the birth of the child. The formal consent
[109 NJ Page 432]
to surrender enables the approved agency to terminate parental rights.
|||Similarly, DYFS is empowered to "take voluntary surrenders and releases
of custody and consents to adoption[s]" from parents, which surrenders,
releases, or consents "when properly acknowledged . . . shall be valid
and binding irrespective of the age of the person giving the same, and shall
be irrevocable except at the discretion of the Bureau of Childrens Services
[currently DYFS] or upon order of a court of competent jurisdiction."
N.J.S.A. 30:4C-23. Such consent to surrender of the custody of the child
would presumably lead to an adoption placement by DYFS. See N.J.S.A. 30:4C-20.
|||It is clear that the Legislature so carefully circumscribed all aspects
of a consent to surrender custody -- its form and substance, its manner
of execution, and the agency or agencies to which it may be made -- in order
to provide the basis for irrevocability. It seems most unlikely that the
Legislature intended that a consent not complying with these requirements
would also be irrevocable, especially where, as here, that consent falls
radically short of compliance. Not only do the form and substance of the
consent in the surrogacy contract fail to meet statutory requirements, but
the surrender of custody is made to a private party. It is not made, as
the statute requires, either to an approved agency or to DYFS.
|||These strict prerequisites to irrevocability constitute a recognition
of the most serious consequences that flow from such consents: termination
of parental rights, the permanent separation of parent from child, and the
ultimate adoption of the child. See Sees v. Baber, supra,
74 N.J. at 217.
Because of those consequences, the Legislature severely limited the circumstances
under which such consent would be irrevocable. The legislative goal is furthered
by regulations requiring approved agencies, prior to accepting irrevocable
consents, to provide advice and counseling to women, making it more likely
that they fully
[109 NJ Page 433]
understand and appreciate the consequences of their acts. N.J.A.C. 10:121A-5.4(c).
|||Contractual surrender of parental rights is not provided for in our statutes
as now written. Indeed, in the Parentage Act, N.J.S.A. 9:17-38 to -59, there
is a specific provision invalidating any agreement "between an alleged
or presumed father and the mother of the child" to bar an action brought
for the purpose of determining paternity "[r]egardless of [the contract's]
terms." N.J.S.A. 9:17-45. Even a settlement agreement concerning parentage
reached in a judicially-mandated consent conference is not valid unless
the proposed settlement is approved before-hand by the court. N.J.S.A. 9:17-48c
and d. There is no doubt that a contractual provision purporting to constitute
an irrevocable agreement to surrender custody of a child for adoption is
|||In Sees v. Baber, supra,
74 N.J. 201,
we noted that a natural mother's consent to surrender her child and to its
subsequent adoption was no longer required by the statute in private placement
adoptions. After tracing the statutory history from the time when such a
consent had been an essential prerequisite to adoption, we concluded that
such a consent was now neither necessary nor sufficient for the purpose
of terminating parental rights. Id. at 213. The consent to surrender custody
in that case was in writing, had been executed prior to physical surrender
of the infant, and had been explained to the mother by an attorney. The
trial court found that the consent to surrender of custody in that private
placement adoption was knowing, voluntary, and deliberate. Id. at 216. The
physical surrender of the child took place four days after its birth. Two
days thereafter the natural mother changed her mind, and asked that the
adoptive couple give her baby back to her. We held that she was entitled
to the baby's return. The effect of our holding in that case necessarily
encompassed our conclusion that "in an unsupervised private placement,
since there is no statutory obligation to consent, there can be no legal
barrier to its retraction." Id. at 215. The only possible relevance
[109 NJ Page 434]
consent in these matters, we noted, was that it might bear on whether there
had been an abandonment of the child, or a forsaking of parental obligations.
Id. at 216. Otherwise, consent in a private placement adoption is not only
revocable but, when revoked early enough, irrelevant. Id. at 213-15.
|||The provision in the surrogacy contract whereby the mother irrevocably
agrees to surrender custody of her child and to terminate her parental rights
conflicts with the settled interpretation of New Jersey statutory law.*fn8
There is only one irrevocable consent, and that is the one explicitly provided
for by statute: a consent to surrender of custody and a placement with an
approved agency or with DYFS. The provision in the surrogacy contract, agreed
to before conception, requiring the natural mother to surrender custody
of the child without any right of revocation is one more indication of the
essential nature of this transaction: the creation of a contractual system
of termination and adoption designed to circumvent our statutes.
|||B. Public Policy Considerations
|||The surrogacy contract's invalidity, resulting from its direct conflict
with the above statutory provisions, is further underlined when its goals
and means are measured against New Jersey's public policy. The contract's
basic premise, that the natural parents can decide in advance of birth which
one is to have custody of the child, bears no relationship to the settled
law that the child's best interests shall determine custody. See Fantony
21 N.J. 525,
536-37 (1956); see also Sheehan v. Sheehan,
38 N.J. Super. 120,
[109 NJ Page 435]
("Whatever the agreement of the parents, the ultimate determination
of custody lies with the court in the exercise of its supervisory jurisdiction
as parens patriae."). The fact that the trial court remedied that aspect
of the contract through the "best interests" phase does not make
the contractual provision any less offensive to the public policy of this
|||The surrogacy contract guarantees permanent separation of the child from
one of its natural parents. Our policy, however, has long been that to the
extent possible, children should remain with and be brought up by both of
their natural parents. That was the first stated purpose of the previous
adoption act, L. 1953, c. 264, § 1, codified at N.J.S.A. 9:3-17 (repealed):
"it is necessary and desirable (a) to protect the child from unnecessary
separation from his natural parents. . . ." While not so stated in
the present adoption law, this purpose remains part of the public policy
of this State. See, e.g., Wilke v. Culp,
196 N.J. Super. 487,
496 (App.Div.1984), certif. den., 99 N.J. 243 (1985); In re Adoption by
175 N.J. Super. at 426.
This is not simply some theoretical ideal that in practice has no meaning.
The impact of failure to follow that policy is nowhere better shown than
in the results of this surrogacy contract. 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.*fn9
|||The surrogacy contract violates the policy of this State that the rights
of natural parents are equal concerning their child, the father's right
no greater than the mother's. "The parent
[109 NJ Page 436]
and child relationship extends equally to every child and to every parent,
regardless of the marital status of the parents." N.J.S.A. 9:17-40.
As the Assembly Judiciary Committee noted in its statement to the bill,
this section establishes "the principle that regardless of the marital
status of the parents, all children and all parents have equal rights with
respect to each other." Statement to Senate No. 888, Assembly Judiciary,
Law, Public Safety and Defense Committee (1983) (emphasis supplied). The
whole purpose and effect of the surrogacy contract was to give the father
the exclusive right to the child by destroying the rights of the mother.
|||The policies expressed in our comprehensive laws governing consent to
the surrender of a child, discussed supra at 429-434, stand in stark contrast
to the surrogacy contract and what it implies. Here there is no counseling,
independent or otherwise, of the natural mother, no evaluation, no warning.
|||The only legal advice Mary Beth Whitehead received regarding the surrogacy
contract was provided in connection with the contract that she previously
entered into with another couple. Mrs. Whitehead's lawyer was referred to
her by the Infertility Center, with which he had an agreement to act as
counsel for surrogate candidates. His services consisted of spending one
hour going through the contract with the Whiteheads, section by section,
and answering their questions. Mrs. Whitehead received no further legal
advice prior to signing the contract with the Sterns.
|||Mrs. Whitehead was examined and psychologically evaluated, but if it was
for her benefit, the record does not disclose that fact. The Sterns regarded
the evaluation as important, particularly in connection with the question
of whether she would change her mind. Yet they never asked to see it, and
were content with the assumption that the Infertility Center had made an
evaluation and had concluded that there was no danger that the surrogate
mother would change her mind. From Mrs. Whitehead's point of view, all that
she learned from
[109 NJ Page 437]
the evaluation was that "she had passed." It is apparent that
the profit motive got the better of the Infertility Center. Although the
evaluation was made, it was not put to any use, and understandably so, for
the psychologist warned that Mrs. Whitehead demonstrated certain traits
that might make surrender of the child difficult and that there should be
further inquiry into this issue in connection with her surrogacy. To inquire
further, however, might have jeopardized the Infertility Center's fee. The
record indicates that neither Mrs. Whitehead nor the Sterns were ever told
of this fact, a fact that might have ended their surrogacy arrangement.
|||Under the contract, the natural mother is irrevocably committed before
she knows the strength of her bond with her child. She never makes a totally
voluntary, informed decision, for quite clearly any decision prior to the
baby's birth is, in the most important sense, uninformed, and any decision
after that, compelled by a pre-existing contractual commitment, the threat
of a lawsuit, and the inducement of a $10,000 payment, is less than totally
voluntary. Her interests are of little concern to those who controlled this
|||Although the interest of the natural father and adoptive mother is certainly
the predominant interest, realistically the only interest served, even they
are left with less than what public policy requires. They know little about
the natural mother, her genetic makeup, and her psychological and medical
history. Moreover, not even a superficial attempt is made to determine their
awareness of their responsibilities as parents.
|||Worst of all, however, is the contract's total disregard of the best interests
of the child. There is not the slightest suggestion that any inquiry will
be made at any time to determine the fitness of the Sterns as custodial
parents, of Mrs. Stern as an adoptive parent, their superiority to Mrs.
Whitehead, or the effect on the child of not living with her natural mother.
|||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
[109 NJ Page 438]
that one of the purchasers is the father. Almost every evil that prompted
the prohibition on the payment of money in connection with adoptions exists
|||The differences between an adoption and a surrogacy contract should be
noted, since it is asserted that the use of money in connection with surrogacy
does not pose the risks found where money buys an adoption. Katz, "Surrogate
Motherhood and the Baby-Selling Laws," 20 Colum.J.L. & Soc.Probs.
|||First, and perhaps most important, all parties concede that it is unlikely
that surrogacy will survive without money. Despite the alleged selfless
motivation of surrogate mothers, if there is no payment, there will be no
surrogates, or very few. That conclusion contrasts with adoption; for obvious
reasons, there remains a steady supply, albeit insufficient, despite the
prohibitions against payment. The adoption itself, relieving the natural
mother of the financial burden of supporting an infant, is in some sense
the equivalent of payment.
|||Second, the use of money in adoptions does not produce the problem --
conception occurs, and usually the birth itself, before illicit funds are
offered. With surrogacy, the "problem," if one views it as such,
consisting of the purchase of a woman's procreative capacity, at the risk
of her life, is caused by and originates with the offer of money.
|||Third, with the law prohibiting the use of money in connection with adoptions,
the built-in financial pressure of the unwanted pregnancy and the consequent
support obligation do not lead the mother to the highest paying, ill-suited,
adoptive parents. She is just as well-off surrendering the child to an approved
agency. In surrogacy, the highest bidders will presumably become the adoptive
parents regardless of suitability, so long as payment of money is permitted.
|||Fourth, the mother's consent to surrender her child in adoptions is revocable,
even after surrender of the child, unless it be to an approved agency, where
by regulation there are protections
[109 NJ Page 439]
against an ill-advised surrender. In surrogacy, consent occurs so early
that no amount of advice would satisfy the potential mother's need, yet
the consent is irrevocable.
|||The main difference, that the unwanted pregnancy is unintended while the
situation of the surrogate mother is voluntary and intended, is really not
significant. Initially, it produces stronger reactions of sympathy for the
mother whose pregnancy was unwanted than for the surrogate mother, who "went
into this with her eyes wide open." On reflection, however, it appears
that the essential evil is the same, taking advantage of a woman's circumstances
(the unwanted pregnancy or the need for money) in order to take away her
child, the difference being one of degree.
|||In the scheme contemplated by the surrogacy contract in this case, a middle
man, propelled by profit, promotes the sale. Whatever idealism may have
motivated any of the participants, the profit motive predominates, permeates,
and ultimately governs the transaction. The demand for children is great
and the supply small. The availability of contraception, abortion, and the
greater willingness of single mothers to bring up their children has led
to a shortage of babies offered for adoption. See N. Baker, Baby Selling:
The Scandal of Black Market Adoption, supra; Adoption and Foster Care, 1975:
Hearings on Baby Selling Before the Subcomm. On Children and Youth of the
Senate Comm. on Labor and Public Welfare, 94th Cong.1st Sess. 6 (1975) (Statement
of Joseph H. Reid, Executive Director, Child Welfare League of America,
Inc.). The situation is ripe for the entry of the middleman who will bring
some equilibrium into the market by increasing the supply through the use
|||Intimated, but disputed, is the assertion that surrogacy will be used
for the benefit of the rich at the expense of the poor. See, e.g., Radin,
"Market Inalienability," 100 Harv.L.Rev. 1849, 1930 (1987). In
response it is noted that the Sterns are not rich and the Whiteheads not
poor. Nevertheless, it is clear to us
[109 NJ Page 440]
that it is unlikely that surrogate mothers will be as proportionately numerous
among those women in the top twenty percent income bracket as among those
in the bottom twenty percent. Ibid. Put differently, we doubt that infertile
couples in the low-income bracket will find upper income surrogates.
|||In any event, even in this case one should not pretend that disparate
wealth does not play a part simply because the contrast is not the dramatic
"rich versus poor." At the time of trial, the Whiteheads' net
assets were probably negative -- Mrs. Whitehead's own sister was foreclosing
on a second mortgage. Their income derived from Mr. Whitehead's labors.
Mrs. Whitehead is a homemaker, having previously held part-time jobs. The
Sterns are both professionals, she a medical doctor, he a biochemist. Their
combined income when both were working was about $89,500 a year and their
assets sufficient to pay for the surrogacy contract arrangements.
|||The point is made that Mrs. Whitehead agreed to the surrogacy arrangement,
supposedly fully understanding the consequences. Putting aside the issue
of how compelling her need for money may have been, and how significant
her understanding of the consequences, we suggest that her consent is irrelevant.
There are, in a civilized society, some things that money cannot buy. In
America, we decided long ago that merely because conduct purchased by money
was "voluntary" did not mean that it was good or beyond regulation
and prohibition. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S. Ct.
578, 81 L. Ed. 703 (1937). Employers can no longer buy labor at the lowest
price they can bargain for, even though that labor is "voluntary,"
29 U.S.C. § 206 (1982), or buy women's labor for less money than paid to
men for the same job, 29 U.S.C. § 206(d), or purchase the agreement of children
to perform oppressive labor, 29 U.S.C. § 212, or purchase the agreement
of workers to subject themselves to unsafe or unhealthful working conditions,
29 U.S.C. §§ 651 to 678. (Occupational Safety and Health Act of 1970). There
are, in short,
[109 NJ Page 441]
values that society deems more important thangranting to wealth whatever
it can buy, be it labor, love, or life. Whether this principle recommends
prohibition of surrogacy, which presumably sometimes results in great satisfaction
to all of the parties, is not for us to say. We note here only that, under
existing law, the fact that Mrs. Whitehead "agreed" to the arrangement
is not dispositive.
|||The long-term effects of surrogacy contracts are not known, but feared
-- the impact on the child who learns her life was bought, that she is the
offspring of someone who gave birth to her only to obtain money; the impact
on the natural mother as the full weight of her isolation is felt along
with the full reality of the sale of her body and her child; the impact
on the natural father and adoptive mother once they realize the consequences
of their conduct. Literature in related areas suggests these are substantial
considerations, although, given the newness of surrogacy, there is little
information. See N. Baker, Baby Selling: The Scandal of Black Market Adoption,
supra; Adoption and Foster Care, 1975: 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).
|||The surrogacy contract is based on, principles that are directly contrary
to the objectives of our laws.*fn10
[109 NJ Page 442]
the separation of a child from its mother; it looks to adoption regardless
of suitability; it totally ignores the child; it takes the child from the
mother regardless of her wishes and her maternal fitness; and it does all
of this, it accomplishes all of its goals, through the use of money.
|||Beyond that is the potential degradation of some women that may result
from this arrangement. In many cases, of course, surrogacy may bring satisfaction,
not only to the infertile couple, but to the surrogate mother herself. The
fact, however, that many women may not perceive surrogacy negatively but
rather see it as an opportunity does not diminish its potential for devastation
to other women.
|||In sum, the harmful consequences of this surrogacy arrangement appear
to us all too palpable. In New Jersey the surrogate mother's agreement to
sell her child is void.*fn11 Its irrevocability
[109 NJ Page 444]
infects the entire contract, as does the money that purports to buy it.
|||We have already noted that under our laws termination of parental rights
cannot be based on contract, but may be granted only on proof of the statutory
requirements. That conclusion was one of the bases for invalidating the
surrogacy contract. Although excluding the contract as a basis for parental
termination, we did not explicitly deal with the question of whether the
statutory bases for termination existed. We do so here.
|||As noted before, if termination of Mrs. Whitehead's parental rights is
justified, Mrs. Whitehead will have no further claim either to custody or
to visitation, and adoption by Mrs. Stern may proceed pursuant to the private
placement adoption statute, N.J.S.A. 9:3-48. If termination is not justified,
Mrs. Whitehead remains the legal mother, and even if not entitled to custody,
she would ordinarily be expected to have some rights of visitation. Wilke
v. Culp, supra,
196 N.J. Super. at 496.
|||As was discussed, supra at 425-429, the proper bases for termination are
found in the statute relating to proceedings by approved agencies for a
termination of parental rights, N.J.S.A. 9:2-18, the statute allowing for
termination leading to a private placement adoption, N.J.S.A. 9:3-48c(1),
and the statute authorizing a termination pursuant to an action by DYFS,
N.J.S.A. 30:4C-20. The statutory descriptions of the conditions required
to terminate parental rights differ; their interpretation in case law, however,
tends to equate them. Compare New Jersey
[109 NJ Page 445]
Div. of Youth and Family Servs. v. A.W., supra,
103 N.J. at 601-11
(attempted termination by DYFS) with In re Adoption by J.J.P., supra,
175 N.J. Super. at 426-28
(attempted termination in connection with private placement adoption).
|||Nothing in this record justifies a finding that would allow a court to
terminate Mary Beth Whitehead's parental rights under the statutory standard.
It is not simply that obviously there was no "intentional abandonment
or very substantial neglect of parental duties without a reasonable expectation
of reversal of that conduct in the future," N.J.S.A. 9:3-48c(1), quite
the contrary, but furthermore that the trial court never found Mrs. Whitehead
an unfit mother and indeed affirmatively stated that Mary Beth Whitehead
had been a good mother to her other children. 217 N.J. Super. at 397.
|||Although the question of best interests of the child is dispositive of
the custody issue in a dispute between natural parents, it does not govern
the question of termination. It has long been decided that the mere fact
that a child would be better off with one set of parents than with another
is an insufficient basis for terminating the natural parent's rights. See
New Jersey Div. of Youth and Family Servs. v. A.W., supra,
103 N.J. at 603;
In re Adoption of Children by D., supra,
61 N.J. at 97-98;
In re Adoption by J.J.P., supra,
175 N.J. Super. at 428.
Furthermore, it is equally well settled that surrender of a child and a
consent to adoption through private placement do not alone warrant termination.
See Sees v. Baber, supra,
74 N.J. 201.
It must be noted, despite some language to the contrary, that the interests
of the child are not the only interests involved when termination issues
are raised. The parent's rights, both constitutional and statutory, have
their own independent vitality. See New Jersey Div. of Youth and Family
Servs. v. A.W., supra,
103 N.J. at 601.
|||Although the statutes are clear, they are not applied rigidly on all occasions.
The statutory standard, strictly construed, appears harsh where the natural
parents, having surrendered
[109 NJ Page 446]
their child for adoption through private placement, change their minds and
seek the return of their child and where the issue comes before the court
with the adoptive parents having had custody for years, and having assumed
it quite innocently.
|||These added dimensions in Sees v. Baber, supra,
74 N.J. 201,
failed to persuade this Court to vary the termination requirements. The
natural parent in that case changed her mind two days after surrendering
the child, sought his return unequivocally, and so advised the adoptive
parents. Since she was clearly fit, and clearly had not abandoned the child
in the statutory sense, termination was denied, despite the fact that the
adoptive parents had had custody of the child for about a year, and the
mother had never had custody at all.
|||A significant variation on these facts, however, occurred in Sorentino
74 N.J. 313.
The surrender there was not through private placement but through an approved
agency. Although the consent to surrender was held invalid due to coercion
by the agency, the natural parents failed to initiate the lawsuit to reclaim
the child for over a year after relinquishment. By the time this Court reached
the issue of whether the natural parents' rights could be terminated, the
adoptive parents had had custody for three years. These circumstances ultimately
persuaded this Court to permit termination of the natural parents' rights
and to allow a subsequent adoption. The unique facts of Sorentino II were
found to amount to a forsaking of parental obligations. Id. at 322.
|||The present case is distinguishable from Sorentino II. Mary Beth Whitehead
had custody of Baby M for four months before the child was taken away. Her
initial surrender of Baby M was pursuant to a contract that we have declared
illegal and unenforceable. The Sterns knew almost from the very day that
they took Baby M that their rights were being challenged by the natural
mother. In short, the factors that persuaded this Court to terminate the
parental rights in Sorentino II are not found here.
[109 NJ Page 447]
There is simply no basis, either in the statute or in the peculiar facts
of that limited class of case typified by Sorentino II, to warrant termination
of Mrs. Whitehead's parental rights. We therefore conclude that the natural
mother is entitled to retain her rights as a mother.
|||Both parties argue that the Constitutions -- state and federal -- mandate
approval of their basic claims. The source of their constitutional arguments
is essentially the same: the right of privacy, the right to procreate, the
right to the companionship of one's child, those rights flowing either directly
from the fourteenth amendment or by its incorporation of the Bill of Rights,
or from the ninth amendment, or through the penumbra surrounding all of
the Bill of Rights. They are the rights of personal intimacy, of marriage,
of sex, of family, of procreation. Whatever their source, it is clear that
they are fundamental rights protected by both the federal and state Constitutions.
Lehr v. Robertson, 463 U.S. 248, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983);
Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982);
Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1978);
Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978);
Carey v. Population Servs. Int'l, 431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed.
2d 675 (1977); Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147
(1973); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d
551 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L.
Ed. 2d 510 (1965); Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86
L. Ed. 1655 (1942); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L.
Ed. 1042 (1923). The right asserted by the Sterns is the right of procreation;
that asserted by Mary Beth Whitehead is the right to the companionship of
her child. We find that the right of procreation does not extend as far
as claimed by the Sterns. As for the right asserted by Mrs.
[109 NJ Page 448]
Whitehead,*fn12 since we uphold it on
other grounds (i.e., we have restored her as mother and recognized her right,
limited by the child's best interests, to her companionship), we need not
decide that constitutional issue, and for reasons set forth below, we should
|||The right to procreate, as protected by the Constitution, has been ruled
on directly only once by the United States Supreme Court. See Skinner v.
Oklahoma, supra, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (forced sterilization
of habitual criminals violates equal protection clause of fourteenth amendment).
Although Griswold v. Connecticut, supra, 381 U.S. 479, 85 S. Ct. 1678, 14
L. Ed. 2d 510, is obviously of a similar class, strictly speaking it involves
the right not to procreate. The right to procreate very simply is the right
to have natural children, whether through sexual intercourse or artificial
insemination. It is no more than that. Mr. Stern has not been deprived of
that right. Through artificial insemination of Mrs. Whitehead, Baby M is
his child. The custody, care, companionship, and nurturing that follow birth
are not parts of the right to procreation; they are rights that may also
be constitutionally protected, but that involve many considerations other
than the right of procreation. To assert that Mr. Stern's right of procreation
gives him the right to the custody of Baby M would be to assert that Mrs.
Whitehead's right of procreation does not give her the right to the custody
of Baby M; it would be to assert that the constitutional right of procreation
includes within it a constitutionally protected contractual right to destroy
someone else's right of procreation.
|||We conclude that the right of procreation is best understood and protected
if confined to its essentials, and that when dealing with rights concerning
the resulting child, different
[109 NJ Page 449]
interests come into play. There is nothing in our culture or society that
even begins to suggest a fundamental right on the part of the father to
the custody of the child as part of his right to procreate when opposed
by the claim of the mother to the same child. We therefore disagree with
the trial court: there is no constitutional basis whatsoever requiring that
Mr. Stern's claim to the custody of Baby M be sustained. Our conclusion
may thus be understood as illustrating that a person's rights of privacy
and self-determination are qualified by the effect on innocent third persons
of the exercise of those rights.*fn13
|||Mr. Stern also contends that he has been denied equal protection of the
laws by the State's statute granting full
[109 NJ Page 450]
parental rights to a husband in relation to the child produced, with his
consent, by the union of his wife with a sperm donor. N.J.S.A. 9:17-44.
The claim really is that of Mrs. Stern. It is that she is in precisely the
same position as the husband in the statute: she is presumably infertile,
as is the husband in the statute; her spouse by agreement with a third party
procreates with the understanding that the child will be the couple's child.
The alleged unequal protection is that the understanding is honored in the
statute when the husband is the infertile party, but no similar understanding
is honored when it is the wife who is infertile.
|||It is quite obvious that the situations are not parallel. A sperm donor
simply cannot be equated with a surrogate mother. The State has more than
a sufficient basis to distinguish the two situations -- even if the only
difference is between the time it takes to provide sperm for artificial
insemination and the time invested in a nine-month pregnancy -- so as to
justify automatically divesting the sperm donor of his parental rights without
automatically divesting a surrogate mother. Some basis for an equal protection
argument might exist if Mary Beth Whitehead had contributed her egg to be
implanted, fertilized or otherwise, in Mrs. Stern, resulting in the latter's
pregnancy. That is not the case here, however.
|||Mrs. Whitehead, on the other hand, asserts a claim that falls within the
scope of a recognized fundamental interest protected by the Constitution.
As a mother, she claims the right to the companionship of her child. This
is a fundamental interest, constitutionally protected. Furthermore, it was
taken away from her by the action of the court below. Whether that action
under these circumstances would constitute a constitutional deprivation,
however, we need not and do not decide. By virtue of our decision Mrs. Whitehead's
constitutional complaint -- that her parental rights have been unconstitutionally
terminated -- is moot. We have decided that both the statutes and public
policy of this state require that that termination be
[109 NJ Page 451]
voided and that her parental rights be restored. It therefore becomes unnecessary
to decide whether that same result would be required by virtue of the federal
or state Constitutions. See Ashwander v. Tennessee Valley Auth., 297 U.S.
288, 341, 346-48, 56 S. Ct. 466, 482-83, 80 L. Ed. 688, 707, 710-12 (1936)
(Brandeis, J., concurring). Refraining from deciding such constitutional
issues avoids further complexities involving the full extent of a parent's
right of companionship,*fn14 or questions
involving the fourteenth amendment.*fn15
|||Having held the contract invalid and having found no other grounds for
the termination of Mrs. Whitehead's parental rights, we find that nothing
remains of her constitutional claim. It seems obvious to us that since custody
and visitation encompass practically all of what we call "parental
rights," a total denial of both would be the equivalent of termination
of parental rights. Franz v. United States, 707 F.2d 582, 602 (D.C.Cir.1983).
That, however, as will be seen below, has not occurred here. We express
no opinion on whether a prolonged suspension of visitation would constitute
a termination of parental rights, or whether, assuming it would, a showing
[109 NJ Page 452]
would be required.*fn16
|||Having decided that the surrogacy contract is illegal and unenforceable,
we now must decide the custody question without regard to the provisions
of the surrogacy contract that would give Mr. Stern sole and permanent custody.
(That does not mean that the existence of the contract and the circumstances
under which it was entered may not be considered to
[109 NJ Page 453]
the extent deemed relevant to the child's best interests.) With the surrogacy
contract disposed of, the legal framework becomes a dispute between two
couples over the custody of a child produced by the artificial insemination
of one couple's wife by the other's husband. Under the Parentage Act the
claims of the natural father and the natural mother are entitled to equal
weight, i.e., one is not preferred over the other solely because he or she
is the father or the mother. N.J.S.A. 9:17-40.*fn17
The applicable rule given these circumstances is clear: the child's best
interests determine custody.
[109 NJ Page 454]
We note again that the trial court's reasons for determining what were the
child's best interests were somewhat different from ours. It concluded that
the surrogacy contract was valid, but that it could not grant specific performance
unless to do so was in the child's best interests. The approach was that
of a Chancery judge, unwilling to give extraordinary remedies unless they
well served the most important interests, in this case, the interests of
the child. While substantively indistinguishable from our approach to the
question of best interests, the purpose of the inquiry was not the usual
purpose of determining custody, but of determining a contractual remedy.
|||We are not concerned at this point with the question of termination of
parental rights, either those of Mrs. Whitehead or of Mr. Stern. As noted
in various places in this opinion, such termination, in the absence of abandonment
or a valid surrender, generally depends on a showing that the particular
parent is unfit. The question of custody in this case, as in practically
all cases, assumes the fitness of both parents, and no serious contention
is made in this case that either is unfit. The issue here is which life
would be better for Baby M, one with primary custody in the Whiteheads or
one with primary custody in the Sterns.
|||The circumstances of this custody dispute are unusual and they have provoked
some unusual contentions. The Whiteheads claim that even if the child's
best interests would be served by our awarding custody to the Sterns, we
should not do so, since that will encourage surrogacy contracts -- contracts
claimed by the Whiteheads, and we agree, to be violative of important legislatively-stated
public policies. Their position is that in order that surrogacy contracts
be deterred, custody should remain in the surrogate mother unless she is
unfit, regardless of the best interests of the child. We disagree. Our declaration
that this surrogacy contract is unenforceable and illegal is sufficient
to deter similar agreements. We need not sacrifice the child's interests
in order to make that point sharper.
[109 NJ Page 455]
Cf. In re Adoption of Child by I.T. and K.T.,
164 N.J. Super. 476,
484-86 (App.Div.1978) (adoptive parents' participation in illegal placement
does not mandate denial of adoption); In the Matter of the Adoption of Child
by N.P. and F.P.,
165 N.J. Super. 591
(Law Div.1979) (use of unapproved intermediaries and the payment of money
in connection with adoption is insufficient to establish that the would-be
adoptive parents are unfit or that adoption would not be in child's best
|||The Whiteheads also contend that the award of custody to the Sterns pendente
lite was erroneous and that the error should not be allowed to affect the
final custody decision. As noted above, at the very commencement of this
action the court issued an ex parte order requiring Mrs. Whitehead to turn
over the baby to the Sterns; Mrs. Whitehead did not comply but rather took
the child to Florida. Thereafter, a similar order was enforced by the Florida
authorities resulting in the transfer of possession of Baby M to the Sterns.
The Sterns retained custody of the child throughout the litigation. The
Whiteheads' point, assuming the pendente award of custody was erroneous,
is that most of the factors arguing for awarding permanent custody to the
Sterns resulted from that initial pendente lite order. Some of Mrs. Whitehead's
alleged character failings, as testified to by experts and concurred in
by the trial court, were demonstrated by her actions brought on by the custody
crisis. For instance, in order to demonstrate her impulsiveness, those experts
stressed the Whiteheads' flight to Florida with Baby M; to show her willingness
to use her children for her own aims, they noted the telephone threats to
kill Baby M and to accuse Mr. Stern of sexual abuse of her daughter; in
order to show Mrs. Whitehead's manipulativeness, they pointed to her threat
to kill herself; and in order to show her unsettled family life, they noted
the innumerable moves from one hotel or motel to another in Florida. Furthermore,
the argument continues, one of the most important factors, whether mentioned
or not, in favor of custody in the Sterns is their continuing custody during
the litigation, now having lasted for one-and-a-half
[109 NJ Page 456]
years. The Whiteheads' conclusion is that had the trial court not given
initial custody to the Sterns during the litigation, Mrs. Whitehead not
only would have demonstrated her perfectly acceptable personality -- the
general tenor of the opinion of experts was that her personality problems
surfaced primarily in crises -- but would also have been able to prove better
her parental skills along with an even stronger bond than may now exist
between her and Baby M. Had she not been limited to custody for four months,
she could have proved all of these things much more persuasively through
almost two years of custody.
|||The argument has considerable force. It is of course possible that the
trial court was wrong in its initial award of custody. It is also possible
that such error, if that is what it was, may have affected the outcome.
We disagree with the premise, however, that in determining custody a court
should decide what the child's best interests would be if some hypothetical
state of facts had existed. Rather, we must look to what those best interests
are, today, even if some of the facts may have resulted in part from legal
error. The child's interests come first: we will not punish it for judicial
errors, assuming any were made. See Wist v. Wist,
101 N.J. 509,
513-14 (1986); see also In re J.R. Guardianship,
174 N.J. Super. 211
(App.Div.), certif. den., 85 N.J. 102 (1980) (although not explicitly mentioned,
natural mother's loss of parental rights based substantially on failures
of DYFS to arrange visitation with her child). The custody decision must
be based on all circumstances, on everything that actually has occurred,
on everything that is relevant to the child's best interests. Those circumstances
include the trip to Florida, the telephone calls and threats, the substantial
period of successful custody with the Sterns, and all other relevant circumstances.
We will discuss the question of the correctness of the trial court's initial
orders below, but for purposes of determining Baby M's best interests, the
correctness of those initial orders has lost relevance.
[109 NJ Page 457]
There were eleven experts who testified concerning the child's best interests,
either directly or in connection with matters related to that issue. Our
reading of the record persuades us that the trial court's decision awarding
custody to the Sterns (technically to Mr. Stern) should be affirmed since
"its findings . . . could reasonably have been reached on sufficient
credible evidence present in the record." Beck v. Beck,
86 N.J. 480,
496 (1981) (quoting State v. Johnson,
42 N.J. 146,
161 (1964)); see Palermo v. Palermo,
164 N.J. Super. 492,
498 (App.Div.1978)(noting that family court judge was experienced in dealing
with such matters and had opportunity to observe parties and become immersed
in details of case). More than that, on this record we find little room
for any different conclusion. The trial court's treatment of this issue,
217 N.J. Super. at 391-400, is both comprehensive and, in most respects,
perceptive. We agree substantially with its analysis with but few exceptions
that, although important, do not change our ultimate views.
|||Our custody conclusion is based on strongly persuasive testimony contrasting
both the family life of the Whiteheads and the Sterns and the personalities
and characters of the individuals. The stability of the Whitehead family
life was doubtful at the time of trial. Their finances were in serious trouble
(foreclosure by Mrs. Whitehead's sister on a second mortgage was in process).
Mr. Whitehead's employment, though relatively steady, was always at risk
because of his alcoholism, a condition that he seems not to have been able
to confront effectively. Mrs. Whitehead had not worked for quite some time,
her last two employments having been part-time. One of the Whiteheads' positive
attributes was their ability to bring up two children, and apparently well,
even in so vulnerable a household. Yet substantial question was raised even
about that aspect of their home life. The expert testimony contained criticism
of Mrs. Whitehead's handling of her son's educational difficulties. Certain
of the experts noted that Mrs. Whitehead perceived herself as omnipotent
and omniscient concerning her
[109 NJ Page 458]
children. She knew what they were thinking, what they wanted, and she spoke
for them. As to Melissa, Mrs. Whitehead expressed the view that she alone
knew what that child's cries and sounds meant. Her inconsistent stories
about various things engendered grave doubts about her ability to explain
honestly and sensitively to Baby M -- and at the right time -- the nature
of her origin. Although faith in professional counseling is not a sine qua
non of parenting, several experts believed that Mrs. Whitehead's contempt
for professional help, especially professional psychological help, coincided
with her feelings of omnipotence in a way that could be devastating to a
child who most likely will need such help. In short, while love and affection
there would be, Baby M's life with the Whiteheads promised to be too closely
controlled by Mrs. Whitehead. The prospects for wholesome, independent psychological
growth and development would be at serious risk.
|||The Sterns have no other children, but all indications are that their
household and their personalities promise a much more likely foundation
for Melissa to grow and thrive. There is a track record of sorts -- during
the one-and-a-half years of custody Baby M has done very well, and the relationship
between both Mr. and Mrs. Stern and the baby has become very strong. The
household is stable, and likely to remain so. Their finances are more than
adequate, their circle of friends supportive, and their marriage happy.
Most important, they are loving, giving, nurturing, and open-minded people.
They have demonstrated the wish and ability to nurture and protect Melissa,
yet at the same time to encourage her independence. Their lack of experience
is more than made up for by a willingness to learn and to listen, a willingness
that is enhanced by their professional training, especially Mrs. Stern's
experience as a pediatrician. They are honest; they can recognize error,
deal with it, and learn from it. They will try to determine rationally the
best way to cope with problems in their relationship with Melissa. When
the time comes to tell her about her origins, they will probably have found
a means of doing so that accords with the
[109 NJ Page 459]
best interests of Baby M. All in all, Melissa's future appears solid, happy,
and promising with them.
|||Based on all of this we have concluded, independent of the trial court's
identical conclusion, that Melissa's best interests call for custody in
the Sterns. Our above-mentioned disagreements with the trial court do not,
as we have noted, in any way diminish our concurrence with its conclusions.
We feel, however, that those disagreements are important enough to be stated.
They are disagreements about the evaluation of conduct. They also may provide
some insight about the potential consequences of surrogacy.
|||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. She was guilty
of a breach of contract, and indeed, she did break a very important promise,
but 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? We
do not know of, and cannot conceive of, any other case where a perfectly
fit mother was expected to surrender her newly born infant, perhaps forever,
and was then told she was a bad mother because she did not. We know of no
authority suggesting that the moral quality of her act in those circumstances
should be judged by referring to a contract made before she became pregnant.
We do not countenance, and would never countenance, violating a court order
as Mrs. Whitehead did, even a court order that is wrong; but her resistance
to an order that she surrender her infant, possibly forever, merits a measure
of understanding. We do not find it so clear that her efforts to keep her
infant, when measured against the Sterns' efforts to take her away, make
one, rather than the other, the wrongdoer. The Sterns suffered, but so did
she. And if we go beyond suffering to an evaluation of the human stakes
involved in the struggle, how much weight should be given to her nine months
of pregnancy, the labor of childbirth, the risk to her life, compared to
[109 NJ Page 460]
payment of money, the anticipation of a child and the donation of sperm?
|||There has emerged a portrait of Mrs. Whitehead, exposing her children
to the media, engaging in negotiations to sell a book, granting interviews
that seemed helpful to her, whether hurtful to Baby M or not, that suggests
a selfish, grasping woman ready to sacrifice the interests of Baby M and
her other children for fame and wealth. That portrait is a half-truth, for
while it may accurately reflect what ultimately occurred, its implication,
that this is what Mary Beth Whitehead wanted, is totally inaccurate, at
least insofar as the record before us is concerned. There is not one word
in that record to support a claim that had she been allowed to continue
her possession of her newly born infant, Mrs. Whitehead would have ever
been heard of again; not one word in the record suggests that her change
of mind and her subsequent fight for her child was motivated by anything
other than love -- whatever complex underlying psychological motivations
may have existed.
|||We have a further concern regarding the trial court's emphasis on the
Sterns' interest in Melissa's education as compared to the Whiteheads'.
That this difference is a legitimate factor to be considered we have no
doubt. But it should not be overlooked that a best-interests test is designed
to create not a new member of the intelligentsia but rather a well-integrated
person who might reasonably be expected to be happy with life. "Best
interests" does not contain within it any idealized lifestyle; the
question boils down to a judgment, consisting of many factors, about the
likely future happiness of a human being. Fantony v. Fantony, supra,
21 N.J. at 536.
Stability, love, family happiness, tolerance, and, ultimately, support of
independence -- all rank much higher in predicting future happiness than
the likelihood of a college education. We do not mean to suggest that the
trial court would disagree. We simply want to dispel any possible misunderstanding
on the issue.
[109 NJ Page 461]
Even allowing for these differences, the facts, the experts' opinions, and
the trial court's analysis of both argue strongly in favor of custody in
the Sterns. Mary Beth Whitehead's family life, into which Baby M would be
placed, was anything but secure -- the quality Melissa needs most. And today
it may be even less so.*fn18 Furthermore,
the evidence and expert opinion based on it reveal personality characteristics,
mentioned above, that might threaten the child's best development. The Sterns
promise a secure home, with an understanding relationship that allows nurturing
and independent growth to develop together. Although there is no substitute
for reading the entire record, including the review of every word of each
experts' testimony and reports, a summary of their conclusions is revealing.
Six experts testified for Mrs. Whitehead: one favored joint custody, clearly
unwarranted in this case; one simply rebutted an opposing expert's claim
that Mary Beth Whitehead had a recognized personality disorder; one testified
to the adverse impact of separation on Mrs. Whitehead; one testified about
the evils of adoption and, to him, the probable analogous evils of surrogacy;
one spoke only on the question of whether Mrs. Whitehead's consent in the
surrogacy agreement was "informed consent"; and one spelled out
the strong bond between mother and child. None of them unequivocally stated,
or even necessarily implied, an opinion that custody in the Whiteheads was
in the best interests of Melissa -- the ultimate issue. The Sterns' experts,
[109 NJ Page 462]
both well qualified -- as were the Whiteheads' -- concluded that the best
interests of Melissa required custody in Mr. Stern. Most convincingly, the
three experts chosen by the court-appointed guardian ad litem of Baby M,
each clearly free of all bias and interest, unanimously and persuasively
recommended custody in the Sterns.
|||Some comment is required on the initial ex parte order awarding custody
pendente lite to the Sterns (and the continuation of that order after a
plenary hearing). The issue, although irrelevant to our disposition of this
case, may recur; and when it does, it can be of crucial importance. When
father and mother are separated and disagree, at birth, on custody, only
in an extreme, truly rare, case should the child be taken from its mother
pendente lite, i.e., only in the most unusual case should the child be taken
from its mother before the dispute is finally determined by the court on
its merits. The probable bond between mother and child, and the child's
need, not just the mother's, to strengthen that bond, along with the likelihood,
in most cases, of a significantly lesser, if any, bond with the father --
all counsel against temporary custody in the father. A substantial showing
that the mother's continued custody would threaten the child's health or
welfare would seem to be required.
|||In this case, the trial court, believing that the surrogacy contract might
be valid, and faced with the probable flight from the jurisdiction by Mrs.
Whitehead and the baby if anynotice were served, ordered, ex parte, an immediate
transfer of possession of the child, i.e., it ordered that custody be transferred
immediately to Mr. Stern, rather than order Mrs. Whitehead not to leave
the State. We have ruled, however, that the surrogacy contract is unenforceable
and illegal. It provides no basis for either an ex parte, a plenary, an
interlocutory, or a final order requiring a mother to surrender custody
to a father. Any application by the natural father in a surrogacy dispute
for custody pending the outcome of the litigation will henceforth
[109 NJ Page 463]
require proof of unfitness, of danger to the child, or the like, of so high
a quality and persuasiveness as to make it unlikely that such application
will succeed. Absent the required showing, all that a court should do is
list the matter for argument on notice to the mother. Even her threats to
flee should not suffice to warrant any other relief unless her unfitness
is clearly shown. At most, it should result in an order enjoining such flight.
The erroneous transfer of custody, as we view it, represents a greater risk
to the child than removal to a foreign jurisdiction, unless parental unfitness
is clearly proved. Furthermore, we deem it likely that, advised of the law
and knowing that her custody cannot seriously be challenged at this stage
of the litigation, surrogate mothers will obey any court order to remain
in the jurisdiction.
|||The trial court's decision to terminate Mrs. Whitehead's parental rights
precluded it from making any determination on visitation. 217 N.J. Super.
at 399, 408. Our reversal of the trial court's order, however, requires
delineation of Mrs. Whitehead's rights to visitation. It is apparent to
us that this factually sensitive issue, which was never addressed below,
should not be determined de novo by this Court. We therefore remand the
visitation issue to the trial court for an abbreviated hearing and determination
as set forth below.*fn19
[109 NJ Page 464]
For the benefit of all concerned, especially the child, we would prefer
to end these proceedings now, once and for all. It is clear to us, however,
that it would be unjust to do so and contrary to precedent.
|||The fact that the trial court did not address visitation is only one reason
for remand. The ultimate question is whether, despite the absence of the
trial court's guidance, the record before us is sufficient to allow an appellate
court to make this essentially factual determination. We can think of no
issue that is more dependent on a trial court's factual findings and evaluation
|||When we examine the record on visitation, the only testimony explicitly
dealing with the issue came from the guardian ad litem 's experts. Examination
of this testimony in light of the complete record, however, reveals that
it was an insignificant part of their opinions. The parties, those with
a real stake in the dispute, offered no testimony on the issue. The cause
for this insufficiency of guidance on the visitation issue was unquestionably
the parties' concentration on other, then seemingly much more important,
questions: custody, termination of parental rights, and the validity of
the surrogacy contract.
|||Even if we were willing to rely solely on the opinions of the guardian
ad litem 's experts, their testimony was not fully developed because the
issue was not the focus of the litigation. Moreover, the guardian's experts
concentrated on determining "best interests" as it related to
custody and to termination of parental rights. Their observations about
visitation, both in quality and quantity, were really derivative of their
views about custody and termination. The guardian's experts were concerned
that given Mrs. Whitehead's determination to have custody, visitation might
be used to undermine the Sterns' parental authority and thereby jeopardize
the stability and security so badly needed by this child. Two of the experts
recommended suspension of visitation for five years and the other suspension
for an undefined period. None of them fully considered the
[109 NJ Page 465]
factors that have led our courts ordinarily to grant visitation in other
contexts, with no suspension, even where the non-custodial parent was less
than a paragon of virtue. See, e.g., Wilke v. Culp, supra,
196 N.J. Super. at 496;
In re Adoption by J.J.P., supra,
175 N.J. Super. at 430.
Based on the opinions of her experts, the guardian ad litem recommended
suspension of Mrs. Whitehead's visitation rights for five years, with a
reevaluation at that time. The basis for that recommendation, whether one
regards it as the right or the wrong conclusion, was apparently bolstered
when it was learned that Mrs. Whitehead had become pregnant, divorced Richard
Whitehead, and then married the father of her new child-to-be. Without any
further expert testimony, the guardian ad litem revised her position. She
now argues that instead of five years, visitation should be suspended until
Melissa reaches majority. This radical change in the guardian ad litem 's
position reinforces our belief that further consideration must be given
to this issue.
|||The foregoing does not fully describe the extent to which this record
leaves us uninformed on the visitation issue. No one, with one exception,
included a word about visitation in the final briefs before the trial court.
The exception was Mrs. Whitehead's parents who argued for their own visitation.
This claim was denied by the trial court and is not now before us. The oral
summations of counsel before the trial court were almost equally bereft
of even a reference to the visitation issue. Mrs. Whitehead's counsel did
not mention visitation. The Sterns' counsel referred to the guardian ad
litem 's expert testimony about visitation, not to argue for or against
visitation but only to support his argument in favor of termination of Mrs.
Whitehead's parental rights. The guardian ad litem did argue the visitation
issue, devoting a minimal portion of her summation to it. Only the grandparents
dealt with visitation, but with their visitation, not with the issue of
Mrs. Whitehead's visitation. Finally, on appeal before this Court the record
on visitation is inadequate -- especially when compared to the treatment
of other issues.
[109 NJ Page 466]
We join those who want this litigation to end for the benefit of this child.
To spare this two-year-old another sixty to ninety days of litigation, however,
at the risk of wrongly deciding this matter, which has life-long consequences
for the child and the parties, would be unwise.
|||We also note the following for the trial court's consideration: First,
this is not a divorce case where visitation is almost invariably granted
to the non-custodial spouse. To some extent the facts here resemble cases
where the non-custodial spouse has had practically no relationship with
the child, see Wilke v. Culp, supra,
196 N.J. Super. 487;
but it only "resembles" those cases. In the instant case, Mrs.
Whitehead spent the first four months of this child's life as her mother
and has regularly visited the child since then. Second, she is not only
the natural mother, but also the legal mother, and is not to be penalized
one iota because of the surrogacy contract. Mrs. Whitehead, as the mother
(indeed, as a mother who nurtured her child for its first four months --
unquestionably a relevant consideration), is entitled to have her own interest
in visitation considered. Visitation cannot be determined without considering
the parents' interests along with those of the child.
|||In all of this, the trial court should recall the touchstones of visitation:
that it is desirable for the child to have contact with both parents; that
besides the child's interests, the parents' interests also must be considered;
but that when all is said and done, the best interests of the child are
|||We have decided that Mrs. Whitehead is entitled to visitation at some
point, and that question is not open to the trial court on this remand.
The trial court will determine what kind of visitation shall be granted
to her, with or without conditions, and when and under what circumstances
it should commence. It also should be noted that the guardian's recommendation
of a five-year delay is most unusual -- one might argue that it begins to
border on termination. Nevertheless, if the circumstances as further developed
by appropriate proofs
[109 NJ Page 467]
or as reconsidered on remand clearly call for that suspension under applicable
legal principles of visitation, it should be so ordered.
|||In order that the matter be determined as expeditiously as possible, we
grant to the trial court the broadest powers to reach its determination.
A decision shall be rendered in no more than ninety days from the date of
|||The trial court shall, after reviewing the transcripts and other material,
determine in its discretion whether further evidence is needed and through
what witnesses it shall be presented. The trial court should consider limiting
the witnesses to the experts who testified and to Mr. and Mrs. Stern and
Mr. and Mrs. Whitehead, using its own judgment in deciding which of them,
if any, shall be called on to give further evidence. The trial court, in
its discretion, may either hear testimony or receive verified written submissions,
relaxing the Rules of Evidence to the extent compatible with reliable factfinding
and desirable for an expeditious decision.*fn20
Many significant facts bearing on visitation have already been adduced.
Although additional evidence may be important, we believe that fairness
does not necessarily require that it be produced with all of the procedural
safeguards implicit in the Evidence Rules. When it comes to custody matters,
application of rules, including those concerning evidence, must on some
occasions be flexible, New Jersey Div. of Youth & Family Servs. v. S.S.,
185 N.J. Super. 3
(App.Div.), certif. den., 91 N.J. 572 (1982), especially in view of the
child's interests in this unique situation.
[109 NJ Page 468]
Any party wishing to appeal from the trial court's judgment on visitation
shall file a notice of appeal within ten days thereafter, the Court hereby
reducing the ordinary time to appeal pursuant to Rule 2:12-2. Any such appeal
is hereby certified to this Court.
|||Any further proceedings in this matter, or related thereto, if made by
application to the trial court shall be made to the judge to whom the matter
is assigned on remand. That direction applies to applications related to
this matter in any way: whether made before, during, or after proceedings
on remand, and regardless of the nature of the application. Any applications
for appellate review shall be made directly to this Court.
|||We would expect that after the visitation issue is determined the trial
court, in connection with any other applications in the future, will attempt
to assure that this case is treated like any other so that this child may
be spared any further damaging publicity.
|||While probably unlikely, we do not deem it unthinkable that, the major
issues having been resolved, the parties' undoubted love for this child
might result in a good faith attempt to work out the visitation themselves,
in the best interests of their child.
|||This case affords some insight into a new reproductive arrangement: the
artificial insemination of a surrogate mother. 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. Although
surrogacy has apparently provided positive results for some infertile couples,
it can also, as this case demonstrates, cause suffering to participants,
here essentially innocent and well-intended.
|||We have found that our present laws do not permit the surrogacy contract
used in this case. Nowhere, however, do
[109 NJ Page 469]
we find any legal prohibition against surrogacy when the surrogate mother
volunteers, without any payment, to act as a surrogate and is given the
right to change her mind and to assert her parental rights. Moreover, the
Legislature remains free to deal with this most sensitive issue as it sees
fit, subject only to constitutional constraints.
|||If the Legislature decides to address surrogacy, consideration of this
case will highlight many of its potential harms. We do not underestimate
the difficulties of legislating on this subject. In addition to the inevitable
confrontation with the ethical and moral issues involved, there is the question
of the wisdom and effectiveness of regulating a matter so private, yet of
such public interest. Legislative consideration of surrogacy may also provide
the opportunity to begin to focus on the overall implications of the new
reproductive biotechnology -- in vitro fertilization, preservation of sperm
and eggs, embryo implantation and the like. The problem is how to enjoy
the benefits of the technology -- especially for infertile couples -- while
minimizing the risk of abuse. The problem can be addressed only when society
decides what its values and objectives are in this troubling, yet promising,
|||The judgment is affirmed in part, reversed in part, and remanded for further
proceedings consistent with this opinion.
[109 NJ Page 470]
|||SURROGATE PARENTING AGREEMENT
|||THIS AGREEMENT is made this 6th day of February, 1985, by and between
MARY BETH WHITEHEAD, a married woman (herein referred to as "Surrogate),
RICHARD WHITEHEAD, her husband (herein referred to a "Husband"),
and WILLIAM STERN, (herein referred to as "Natural Father").
|||THIS AGREEMENT is made with reference to the following facts:
|||(1) WILLIAM STERN, Natural Father, is an individual over the age of eighteen
(18) years who is desirous of entering into this Agreement.
|||(2) The sole purpose of this Agreement is to enable WILLIAM STERN and
his infertile wife to have a child which is biologically related to WILLIAM
|||(3) MARY BETH WHITEHEAD, Surrogate, and RICHARD WHITEHEAD, her husband,
are over the age of eighteen (18) years and desirous of entering into this
Agreement in consideration of the following:
|||NOW THEREFORE, in consideration of the mutual promises contained Herein
and the intentions of being legally bound hereby, the parties agree as follows:
|||1. MARY BETH WHITEHEAD, Surrogate, represents that she is capable of conceiving
children. MARY BETH WHITEHEAD understands and agrees that in the best interest
of the child, she will not form or attempt to form a parent-child relationship
with any child or children she may conceive, carry to term and give birth
to, pursuant to the provisions of this Agreement, and shall freely surrender
custody to WILLIAM STERN, Natural Father, immediately upon birth of the
child; and terminate all parental rights to said child pursuant to this
|||2. MARY BETH WHITEHEAD, Surrogate, and RICHARD WHITEHEAD, her husband,
have been married since 12/2/73, and RICHARD WHITEHEAD is in agreement with
the purposes, intents and provisions of this Agreement and acknowledges
that his wife, MARY BETH WHITEHEAD, Surrogate, shall be artificially inseminated
pursuant to the provisions of this Agreement. RICHARD WHITEHEAD agrees that
in the best interest of the child, he will not form or attempt to form a
parent-child relationship with any child or children MARY BETH WHITEHEAD,
Surrogate, may conceive by artificial insemination as described herein,
and agrees to freely and readily surrender immediate custody of the child
to WILLIAM STERN, Natural Father; and terminate his parental rights; RICHARD
WHITEHEAD further acknowledges he will do all acts necessary to rebut the
presumption of paternity of any offspring conceived and born pursuant to
aforementioned agreement as provided by law, including blood testing and/or
|||3. WILLIAM STERN, Natural Father, does hereby enter into this written
contractual Agreement with MARY BETH WHITEHEAD, Surrogate, where MARY BETH
WHITEHEAD shall be artificially inseminated with the semen of WILLIAM STERN
by a physician. MARY BETH WHITEHEAD, Surrogate, upon becoming pregnant,
acknowledges that she will carry said embryo/fetus(s) until delivery. MARY
BETH WHITEHEAD, Surrogate, and RICHARD WHITEHEAD, her husband, agree that
they will cooperate with any background investigation into the
[109 NJ Page 471]
Surrogate's medical, family and personal history and warrants the information
to be accurate to the best of their knowledge. MARY BETH WHITEHEAD, Surrogate,
and RICHARD WHITEHEAD, her husband, agree to surrender custody of the child
to WILLIAM STERN, Natural Father, immediately upon birth, acknowledging
that it is the intent of this Agreement in the best interests of the child
to do so; as well as institute and cooperate in proceedings to terminate
their respective parental rights to said child, and sign any and all necessary
affidavits, documents, and the like, in order to further the intent and
purposes of this Agreement. It is understood by MARY BETH WHITEHEAD, and
RICHARD WHITEHEAD, that the child to be conceived is being done so for the
sole purpose of giving said child to WILLIAM STERN, its natural and biological
father. MARY BETH WHITEHEAD and RICHARD WHITEHEAD agree to sign all necessary
affidavits prior to and after the birth of the child and voluntarily participate
in any paternity proceedings necessary to have WILLIAM STERN'S name entered
on said child's birth certificate as the natural or biological father.
|||4. That the consideration for this Agreement, which is compensation for
services and expenses, and in no way is to be construed as a fee for termination
of parental rights or a payment in exchange for a consent to surrender the
child for adoption, in addition to other provisions contained herein, shall
be as follows:
|||(A) $10,000 shall be paid to MARY BETH WHITEHEAD, Surrogate, upon surrender
of custody to WILLIAM STERN, the natural and biological father of the child
born pursuant to the provisions of this Agreement for surrogate services
and expenses in carrying out her obligations under this Agreement;
|||(B) The consideration to be paid to MARY BETH WHITEHEAD, Surrogate, shall
be deposited with the Infertility Center of New York (hereinafter ICNY),
the representative of WILLIAM STERN, at the time of the signing of this
Agreement, and held in escrow until completion of the duties and obligations
of MARY BETH WHITEHEAD, Surrogate, (see Exhibit "A" for a copy
of the Escrow Agreement), as herein described.
|||(C) WILLIAM STERN, Natural Father, shall pay the expenses incurred by
MARY BETH WHITEHEAD, Surrogate, pursuant to her pregnancy, more specifically
defined as follows:
|||(1) All medical, hospitalization, and pharmaceutical, laboratory and therapy
expenses incurred as a result of MARY BETH WHITEHEAD'S pregnancy, not covered
or allowed by her present health and major medical insurance, including
all extraordinary medical expenses and all reasonable expenses for treatment
of any emotional or mental conditions or problems related to said pregnancy,
but in no case shall any such expenses be paid or reimbursed after a period
of six (6) months have elapsed since the date of the termination of the
pregnancy, and this Agreement specifically excludes any expenses for lost
wages or other non-itemized incidentals (see Exhibit "B") related
to said pregnancy.
|||(2) WILLIAM STERN, Natural Father, shall not be responsible for any latent
medical expenses occurring six (6) weeks subsequent to the birth of the
child, unless the medical problem or abnormality incident thereto was known
and treated by a physician prior to the expiration of said six (6) week
period and in written notice of the same sent to ICNY, as representative
of WILLIAM STERN by certified mail, return receipt requested, advising of
|||(3) WILLIAM STERN, Natural Father, shall be responsible for the total
costs of all peternity testing. Such paternity testing may, at the option
of WILLIAM STERN, Natural Father, be required prior to release of the surrogate
fee from escrow. In the event WILLIAM STERN, Natural Father, is conclusively
determined not to be the biological father of the child as a result of an
HLA test, this Agreement will be deemed breached and MARY BETH
[109 NJ Page 472]
WHITEHEAD, Surrogate, shall not be entitled to any fee. WILLIAM STERN, Natural
Father, shall be entitled to reimbursement of all medical and related expenses
from MARY BETH WHITEHEAD, Surrogate, and RICHARD WHITEHEAD, her husband.
|||(4) MARY BETH WHITEHEAD'S reasonable travel expenses incurred at the request
of WILLIAM STERN, pursuant to this Agreement.
|||5. MARY BETH WHITEHEAD, Surrogate, and RICHARD WHITEHEAD, her husband,
understand and agree to assume all risks, including the risk of death, which
are incidental to conception, pregnancy, childbirth, including but not limited
to, postpartum complications. A copy of said possible risks and/or complications
is attached hereto and made a part hereof (see Exhibit "C").
|||6. MARY BETH WHITEHEAD, Surrogate, and RICHARD WHITEHEAD, her husband,
hereby agree to undergo psychiatric evaluation by JOAN EINWOHNER, a psychiatrist
as designated by WILLIAM STERN or an agent thereof. WILLIAM STERN shall
pay for the cost of said psychiatric evaluation. MARY BETH WHITEHEAD and
RICHARD WHITEHEAD shall sign, prior to their evaluations, a medical release
permitting dissemination of the report prepared as a result of said psychiatric
evaluations to ICNY or WILLIAM STERN and his wife.
|||7. MARY BETH WHITEHEAD, Surrogate, and RICHARD WHITEHEAD, her husband,
hereby agree that it is the exclusive and sole right of WILLIAM STERN, Natural
Father, to name said child.
|||8. "Child" as referred to in this Agreement shall include all
children born simultaneously pursuant to the inseminations contemplated
|||9. In the event of the death of WILLIAM STERN, prior or subsequent to
the birth of said child, it is hereby understood and agreed by MARY BETH
WHITEHEAD, Surrogate, and RICHARD WHITEHEAD, her husband, that the child
will be placed in the custody of WILLIAM STERN'S wife.
|||10. In the event that the child is miscarried prior to the fifth (5th)
month of pregnancy, no compensation, as enumerated in paragraph 4(A), shall
be paid to MARY BETH WHITEHEAD, Surrogate. However, the expenses enumerated
in paragraph 4(C) shall be paid or reimbursed to MARY BETH WHITEHEAD, Surrogate.
In the event the child is miscarried, dies or is stillborn subsequent to
the fourth (4th) month of pregnancy and said child does not survive, the
Surrogate shall receive $1,000.00 in lieu of the compensation enumerated
in paragraph 4(A). In the event of a miscarriage or stillbirth as described
above, this Agreement shall terminate and neither MARY BETH WHITEHEAD, Surrogate,
nor WILLIAM STERN, Natural Father, shall be under any further obligation
under this Agreement.
|||11. MARY BETH WHITEHEAD, Surrogate, and WILLIAM STERN, Natural Father,
shall have undergone complete physical and genetic evaluation, under the
direction and supervision of a licensed physician, to determine whether
the physical health and well-being of each is satisfactory. Said physical
examination shall include testing for venereal diseases, specifically including
but not limited to, syphilis, herpes and gonorrhea. Said venereal diseases
testing shall be done prior to, but not limited to, each series of inseminations.
|||12. In the event that pregnancy has not occurred within a reasonable time,
in the opinion of WILLIAM STERN, Natural Father, this Agreement shall terminate
by written notice to MARY BETH WHITEHEAD, Surrogate, at the residence provided
to the ICNY by the Surrogate, from ICNY, as representative of WILLIAM STERN,
[109 NJ Page 473]
13. MARY BETH WHITEHEAD, Surrogate, agrees that she will not abort the children
conceived except, if in the professional medical opinion of the inseminating
physician, such action is necessary for the physical health of MARY BETH
WHITEHEAD or the child has been determined by said physician to be physiologically
abnormal. MARY BETH WHITEHEAD further agrees, upon the request of said physician
to undergo amniocentesis (see Exhibit "D") or similar tests to
detect genetic and congenital defects. In the event said test reveals that
the fetus is genetically or congenitally abnormal, MARY BETH WHITEHEAD,
Surrogate, agrees to abort the fetus upon demand of WILLIAM STERN, Natural
Father, in which event, the fee paid to the Surrogate will be in accordance
to Paragraph 10. If MARY BETH WHITEHEAD refuses to abort the fetus upon
demand of WILLIAM STERN, his obligations as stated in this Agreement shall
cease forthwith, except as to obligation of paternity imposed by statute.
|||14. Despite the provisions of Paragraph 13, WILLIAM STERN, Natural Father,
recognizes that some genetic and congenital abnormalities may not be detected
by amniocentesis or other tests, and therefore, if proven to be the biological
father of the child, assumes the legal responsibility for any child who
may possess genetic or congenital abnormalities. (See Exhibits "E"
|||15. MARY BETH WHITEHEAD, Surrogate, further agrees to adhere to all medical
instructions given to her by the inseminating physician as well as her independent
obstetrician. MARY BETH WHITEHEAD also agrees not to smoke cigarettes, drink
alcoholic beverages, use illegal drugs, or take non-prescription medications
or prescribed medications without written consent from her physician. MARY
BETH WHITEHEAD agrees to follow a prenatal medical examination schedule
to consist of no fewer visits than: one visit per month during the first
seven (7) months of pregnancy, two visits (each to occur at two-week intervals)
during the eighth and ninth month of pregnancy.
|||16. MARY BETH WHITEHEAD, Surrogate, agrees to cause RICHARD WHITEHEAD,
her husband, to execute a refusal of consent form as annexed hereto as Exhibit
|||17. Each party acknowledges that he or she fully understands this Agreement
and its legal effect, and that they are signing the same freely and voluntarily
and that neither party has any reason to believe that the other(s) did not
freely and voluntarily execute said Agreement.
|||18. In the event any of the provisions of this Agreement are deemed to
be invalid or unenforceable, the same shall be deemed severable from the
remainder of this Agreement and shall not cause the invalidity or unenforceability
of the remainder of this Agreement. If such provision shall be deemed invalid
due to its scope or breadth, then said provision shall be deemed valid to
the extent of the scope or breadth permitted by law.
[109 NJ Page 474]
19. The original of this Agreement, upon execution, shall be retained by
the Infertility Center of New York, with photocopies being distributed to
MARY BETH WHITEHEAD, Surrogate and WILLIAM STERN, Natural Father, having
the same legal effect as the original.
|||WILLIAM STERN, Natural Father
|||STATE OF NEW YORK
|||COUNTY OF NEW YORK
|||On the 6th day of February, 1985, before me personally came WILLIAM STERN,
known to me, and to me known, to be the individual described in the foregoing
instrument and he acknowledged to me that he executed the same as his free
and voluntary act.
[109 NJ Page 475]
|||We have read the foregoing five pages of this Agreement, and it is our
collective intention by affixing our signatures below, to enter into a binding
|||MARY BETH WHITEHEAD, Surrogate
|||RICHARD WHITEHEAD, Surrogate's Husband
|||STATE OF NEW YORK
|||COUNTY OF NEW YORK
|||On the 6th day of February, 1985, before as personally came MARY BETH
WHITEHEAD, known to me, and to me known to be the individual described in
the foregoing instrument and she acknowledged to me that she executed the
same as her free and voluntary act.
|||STATE OF NEW YORK
|||COUNTY OF NEW YORK
|||On the 6th day of February, 1985, before as personally came RICHARD WHITEHEAD,
known to me, and to me known to be the individual described in the foregoing
instrument and he acknowledged to me that he executed the same me his free
and voluntary act.
[109 NJ Page 476]
|||THIS AGREEMENT is made this THIRD day of DECEMBER 1984, by and between
WILLIAM STERN hereinafter referred to as Natural Father, and the Primary
Research Associates of United States, Inc., d/b/a Infertility Center of
New York, (hereinafter referred to as "ICNY").
|||WHEREAS, Natural Father is desirous of taking part in the process of surrogate
parenting wherein he will attempt to conceive a child by artificial insemination
of a surrogate mother;
|||WHEREAS, ICNY is a corporation duly organized and existing under the laws
of the State of New York for the purpose interalia of engaging in research,
developmental work and design in the areas of surrogate parenting, ovum
transfer and in vitro fertilization with implementation in a surrogate;
and additionally providing administrative and supportive services for the
|||WHEREAS, Natural Father is desirous of contracting with ICNY for such
|||WHEREAS ICNY is desirous of contracting with the Natural Father to provide
|||NOW THEREFORE, in consideration of the mutual promises contained herein,
and with the intentions of being legally bound hereby, the parties mutually
agree as follows:
|||(1) Natural Father hereby contracts with ICNY for the services offered
by ICNY and ICNY agrees to contract with the Natural Father to use its best
effort to assist the Natural Father in the selection of a "surrogate
mother" as hereinafter defined, it being understood that the final
selection of the "surrogate mother" is solely within the discretion
of the Natural Father. In addition to assisting the Natural Father in the
selection of a "surrogate mother", ICNY shall also provide the
services set forth in Exhibit "A" annexed hereto and made a part
hereof and these services shall continue until the completion of the duties
and obligations of surrogate or until such time as the Natural Father decides
not to utilize ICNY's services, provided that the Natural Father is not
in breach of this Agreement.
|||(2) Natural Father agrees and understands that he must enter into an agreement
with the selected surrogate mother whereby Natural Father agrees to the
process of artificial insemination with the use of his semen for the purpose
of impregnating the surrogate mother. Thereafter, the surrogate mother shall
give birth to a child fathered by the Natural Father and voluntarily surrender
custody of said child to the Natural Father.
|||(3) Natural Father hereby agrees to pay ICNY as compensation for the services
provided by ICNY the sum of SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500.00)
incurred by ICNY on behalf of the Natural Father. The Natural Father understands
and agrees that said sum is non-refundable. A partial list of costs and
expenses is annexed hereto and made a part hereof as Exhibit "B".
ICNY shall on a periodic basis bill the Natural Father for the costs and
expenses incurred on behalf of the Natural Father.
|||The Natural Father agrees that ICNY shall act as escrow agent for the
fee to be paid by the Natural Father to the selected surrogate mother.
|||(4) The following list of definitions shall apply throughout this Agreement:
|||(a) "Child" is defined as all children born simultaneously as
a result of the Insemination contemplated by this Agreement.
[109 NJ Page 477]
(b) "Natural Father" is defined as the individual over the age
of eighteen (18) who has selected the surrogate mother and whose semen is
used in the insemination contemplated herein resulting in the birth of the
|||(c) "Surrogate mother" is defined as a woman over the age of
eighteen (18) selected by the Natural Father to be impregnated by the process
of artificial insemination with woman of the Natural Father for the purpose
of becoming pregnant and giving birth to a child and surrendering the child
to the Natural Father.
|||(5) ICNY agrees to provide the services detailed in Exhibit "A".
Said services including the offering, at the option of the Natural Father,
of legal representation of the Natural Father in his negotiations and agreement
with the surrogate mother. The Natural Father understands and acknowledges
that ICNY offers these legal services through the law firm retained by ICNY
but, ICNY makes no representations or warranties with respect to matters
of law or the legality of surrogate parenting and is not rendering legal
services on providing legal advice. However, the Natural Father has the
absolute right to seek legal counsel of his own selection in his negotiations
and agreement with the selected surrogate mother or her representative.
In the event the Natural Father utilizes the legal services of counsel other
than the law firm retained by ICNY, all legal fees and cost shall be borne
by the Natural Father and such fees and costs shall be in addition to the
fees and costs set forth in Paragraph 3 of this Agreement.
|||(6) Prior to signing this Agreement, each party has been given the opportunity
to consult with an attorney of his own choice concerning the terms and legal
significance of the Agreement, and the effect which it has upon any and
all interests of the parties. Each party acknowledges that he fully understands
the Agreement and its legal effect, and that he is signing the same freely
and voluntarily and that neither party has any reason to believe that the
other did not understand fully the terms and effects of this Agreement,
or that he did not freely and voluntarily execute this Agreement.
|||(7) Natural Father warrants and represents the following to ICNY:
|||(a) That the Natural Father's semen is of sufficient nature both quantitatively
and qualitatively to impregnate the selected surrogate mother.
|||(b) That the Natural Father is medically free from disease or other hereditary
medical problems which could cause injury, defect, or disease to the surrogate
mother or child.
|||(c) That the Natural Father will not make or attempt to make directly
or through a representative, a subsequent agreement with the selected surrogate
mother or any other surrogates introduced to the Natural Father by ICNY
before or at any time after the birth of his child. In the event of a further
arrangement with the surrogate for a child is made, the Natural Father agrees
to pay to ICNY a second fee in the amount specified in Paragraph 3 of this
|||(8) Natural Father agrees that breach of any of his warranties and representations
shall cause this Agreement to immediately terminate but in no way relieve
the Natural Father from his obligations under this Agreement. Further, the
Natural Father agrees that his warranties and representations shall survive
the termination of this Agreement.
|||(9) Natural Father hereby acknowledges that ICNY makes no representations
or warranties with respect to any agreement or understanding which may be
reached, or may have been reached, between himself and a prospective "surrogate
mother." Natural Father further acknowledges that the nature of any
such agreement or understanding as well as all ramifications, obligations
and enforcement matters relating thereto are subject which he must seek
advice from his attorney.
[109 NJ Page 478]
(10) It is expressly understood that ICNY does not guarantee or warrant
that the "surrogate mother" will in fact conceive a child fathered
by Natural Father; nor does ICNY guarantee or warrant that if a child is
conceived, it will be a healthy child, free from all defects; nor does ICNY
guarantee or warrant the "surrogate mother" (and her husband,
if applicable) will comply with the terms and provisions of the separate
agreement entered into between herself and Natural Father including but
not limited to, the "surrogate mother's" refusal to surrender
custody of the child upon birth.
|||(11) Natural Father hereby specifically releases ICNY and its officers,
employees agents and representatives from any and all liability and responsibility
of any nature whatsoever except willful and gross negligence, which may
result from complications, breaches, damages, losses, claims, actions, liabilities,
whether actual or asserted of any kind, and all other costs or detriments
of any kind, in any way related to or arising from any agreement or understanding
between himself and a "surrogate mother" located through the services
of ICNY. Moreover, the Natural Father understands the relationship between
ICNY and the relationship of the doctors used in connection with insemination,
monitoring and any other medical or psychiatric procedure or treatment of
the surrogate or of the child is that of an independent contractor and that
there is no other relationship between the parties.
|||(12) This Agreement is binding on each party's respective executors, heirs,
assigns and successors.
|||(13) This Agreement has been drafted, negotiated and executed in New York,
New York, and shall be governed by, continued and enforced in accordance
with the laws of the State of New York.
|||(14) In the event any of the provisions of this Agreement are deemed to
be invalid or unenforceable, the same shall be deemed severable from the
remainder of this Agreement and shall not cause the invalidity or unenforceability
of the remainder of this Agreement. If such provision(s) shall be deemed
invalid due to its scope or breadth, then said provision(s) shall be deemed
valid to the extent of the scope or breadth permitted by law.
|||*fn1 Subsequent to the trial court proceedings,
Mr. and Mrs. Whitehead were divorced, and soon thereafter Mrs. Whitehead
remarried. Nevertheless, in the course of this opinion we will make reference
almost exclusively to the facts as they existed at the time of trial, the
facts on which the decision we now review was reached. We note moreover
that Mr. Whitehead remains a party to this dispute. For these reasons, we
continue to refer to appellants as Mr. and Mrs. Whitehead.
|||*fn2 The Stern-Whitehead contract (the
"surrogacy contract") and the Stern-ICNY contract are reproduced
below as Appendices A and B respectively. Other ancillary agreements and
their attachments are omitted.
|||*fn3 Another argument advanced by Mrs.
Whitehead is that the surrogacy agreement violates state wage regulations,
N.J.S.A. 34:11-4.7, and the Minimum Wage Standard Act, N.J.S.A. 34:11-56a
to -56a30. Given our disposition of the matter, we need not reach those
|||*fn4 N.J.S.A. 9:3-54 reads as follows:
a. No person, firm, partnership, corporation, association or agency shall
make, offer to make or assist or participate in any placement for adoption
and in connection therewith (1) Pay, give or agree to give any money or
any valuable consideration, or assume or discharge any financial obligation;
or (2) Take, receive, accept or agree to accept any money or any valuable
consideration. b. The prohibition of subsection a. shall not apply to
the fees or services of any approved agency in connection with a placement
for adoption, nor shall such prohibition apply to the payment or reimbursement
of medical, hospital or other similar expenses incurred in connection
with the birth or any illness of the child, or to the acceptance of such
reimbursement by a parent of the child. c. Any person, firm, partnership,
corporation, association or agency violating this section shall be guilty
of a high misdemeanor.
|||*fn5 Of course, here there are no "adoptive
parents," but rather the natural father and his wife, the only adoptive
parent. As noted, however, many of the dangers of using money in connection
with adoption may exist in surrogacy situations.
|||*fn6 Counsel for the Sterns argues that
the Parentage Act empowers the court to terminate parental rights solely
on the basis of the child's best interests. He cites N.J.S.A. 9:17-53c,
which reads, in pertinent part, as follows:
The judgment or order may contain any other provision directed against
the appropriate party to the proceeding concerning the duty of support,
the custody and guardianship of the child, visitation privileges with
the child, the furnishing of bond or other security for the payment of
the judgment, the repayment of any public assistance grant, or any other
matter in the best interests of the child. [Emphasis supplied]. We do
not interpret this section as in any way altering or diluting the statutory
prerequisites to termination discussed above. Termination of parental
rights differs qualitatively from the matters to which this section is
expressly directed, and, in any event, we have no doubt that if the Legislature
had intended a substantive change in the standards governing an area of
such gravity, it would have said so explicitly.
|||*fn7 We conclude not only that the surrogacy
contract is an insufficient basis for termination, but that no statutory
or other basis for termination existed. See infra at 444-447.
|||*fn8 The surrogacy situation, of course,
differs from the situation in Sees, in that here there is no "adoptive
couple," but rather the natural father and the stepmother, who is the
would-be adoptive mother. This difference, however, does not go to the basis
of the Sees holding. In both cases, the determinative aspect is the vulnerability
of the natural mother who decides to surrender her child in the absence
of institutional safeguards.
|||*fn9 And the impact on the natural parents,
Mr. Stern and Mrs. Whitehead, is severe and dramatic. The depth of their
conflict about Baby M, about custody, visitation, about the goodness or
badness of each of them, comes through in their telephone conversations,
in which each tried to persuade the other to give up the child. The potential
adverse consequences of surrogacy are poignantly captured here -- Mrs. Whitehead
threatening to kill herself and the baby, Mr. Stern begging her not to,
each blaming the other. The dashed hopes of the Sterns, the agony of Mrs.
Whitehead, their suffering, their hatred -- all were caused by the unraveling
of this arrangement.
|||*fn10 We note the argument of the
Sterns that the sperm donor section of our Parentage Act, N.J.S.A. 9:17-38
to -59, implies a legislative policy that would lead to approval of this
surrogacy contract. Where a married woman is artificially inseminated by
another with her husband's consent, the Parentage Act creates a parent-child
relationship between the husband and the resulting child. N.J.S.A. 9:17-44.
The Parentage Act's silence, however, with respect to surrogacy, rather
than supporting, defeats any contention that surrogacy should receive treatment
parallel to the sperm donor artificial insemination situation. In the latter
case the statute expressly transfers parental rights from the biological
father, i.e., the sperm donor, to the mother's husband. Ibid. Our Legislature
could not possibly have intended any other arrangement to have the consequence
of transferring parental rights without legislative authorization when it
had concluded that legislation was necessary to accomplish that result in
the sperm donor artificial insemination context.
This sperm donor provision suggests an argument not raised by the parties,
namely, that the attempted creation of a parent-child relationship through
the surrogacy contract has been preempted by the Legislature. The Legislature
has explicitly recognized the parent-child relationship between a child
and its natural parents, married and unmarried, N.J.S.A. 9:17-38 to -59,
between adoptive parents and their adopted child, N.J.S.A. 9:3-37 to -56,
and between a husband and his wife's child pursuant to the sperm donor
provision, N.J.S.A. 9:17-44. It has not recognized any others -- specifically,
it has never legally equated the stepparent-stepchild relationship with
the parent-child relationship, and certainly it has never recognized any
concept of adoption by contract. It can be contended with some force that
the Legislature's statutory coverage of the creation of the parent-child
relationship evinces an intent to reserve to itself the power to define
what is and is not a parent-child relationship. We need not, and do not,
decide this question, however.
|||*fn11 Michigan courts have also found
that these arrangements conflict with various aspects of their law. See
Doe v. Kelley, 106 Mich.App. 169, 307 N.W. 2d 438 (1981), cert. den., 459
U.S. 1183, 103 S. Ct. 834, 74 L. Ed. 2d 1027 (1983) (application of sections
of Michigan Adoption Law prohibiting the exchange of money to surrogacy
is constitutional); Syrkowski v. Appleyard, 122 Mich.App. 506, 333 N.W.
2d 90 (1983) (court held it lacked jurisdiction to issue an "order
of filiation" because surrogacy arrangements were not governed by Michigan's
Paternity Act), rev'd, 420 Mich. 367, 362 N.W. 2d 211 (1985) (court decided
Paternity Act should be applied but did not reach the merits of the claim).
Most recently, a Michigan trial court in a matter similar to the case
at bar held that surrogacy contracts are void as contrary to public policy
and therefore are unenforceable. The court expressed concern for the potential
exploitation of children resulting from surrogacy arrangements that involve
the payment of money. The court also concluded that insofar as the surrogacy
contract may be characterized as one for personal services, the thirteenth
amendment should bar specific performance. Yates v. Keane, Nos. 9758,
9772, slip op. (Mich.Cir.Ct. Jan. 21, 1988). The Supreme Court of Kentucky
has taken a somewhat different approach to surrogate arrangements. In
Surrogate Parenting Assocs. v. Commonwealth ex. rel. Armstrong, 704 S.W.
2d 209 (Ky.1986), the court held that the "fundamental differences"
between surrogate arrangements and baby-selling placed the surrogate parenting
agreement beyond the reach of Kentucky's baby-selling statute. Id. at
211. The rationale for this determination was that unlike the normal adoption
situation, the surrogacy agreement is entered into before conception and
is not directed at avoiding the consequences of an unwanted pregnancy.
Id. at 211-12. Concomitant with this pro-surrogacy conclusion, however,
the court held that a "surrogate" mother has the right to void
the contract if she changes her mind during pregnancy or immediately after
birth. Id. at 212-13. The court relied on statutes providing that consent
to adoption or to the termination of parental rights prior to five days
after the birth of the child is invalid, and concluded that consent before
conception must also be unenforceable. Id. at 212-13. The adoption phase
of an uncontested surrogacy arrangement was analyzed in Matter of Adoption
of Baby Girl, L.J., 132 Misc. 2d 972, 505 N.Y.S. 2d 813 (Sur.1986). Although
the court expressed strong moral and ethical reservations about surrogacy
arrangements, it approved the adoption because it was in the best interests
of the child. Id. at 815. The court went on to find that surrogate parenting
agreements are not void, but are voidable if they are not in accordance
with the state's adoption statutes. Id. at 817. The court then upheld
the payment of money in connection with the surrogacy arrangement on the
ground that the New York Legislature did not contemplate surrogacy when
the baby-selling statute was passed. Id. at 818. Despite the court's ethical
and moral problems with surrogate arrangements, it concluded that the
Legislature was the appropriate forum to address the legality of surrogacy
arrangements. Ibid. In contrast to the law in the United States, the law
in the United Kingdom concerning surrogate parenting is fairly well-settled.
Parliament passed the Surrogacy Arrangements Act, 1985, ch. 49, which
made initiating or taking part in any negotiations with a view to making
or arranging a surrogacy contract a criminal offense. The criminal sanction,
however, does not apply to the "surrogate" mother or to the
natural father, but rather applies to other persons engaged in arranging
surrogacy contracts on a commercial basis. Since 1978, English courts
have held surrogacy agreements unenforceable as against public policy,
such agreements being deemed arrangements for the purchase and sale of
children. A. v. C.,  F.L.R. 445, 449 (Fam. & C.A.1978). It should
be noted, however, that certain surrogacy arrangements, i.e., those arranged
without brokers and revocable by the natural mother, are not prohibited
under current law in the United Kingdom.
|||*fn12 Opponents of surrogacy have
also put forth arguments based on the thirteenth amendment, as well as the
Peonage Act, 42 U.S.C. § 1994 (1982). We need not address these arguments
because we have already held the contract unenforceable on the basis of
|||*fn13 As a general rule, a person
should be accorded the right to make decisions affecting his or her own
body, health, and life, unless that choice adversely affects others. Thus,
the United States Supreme Court, while recognizing the right of women to
control their own bodies, has rejected the view that the federal constitution
vests a pregnant woman with an absolute right to terminate her pregnancy.
Instead, the Court declared that the right was "not absolute"
so that "at some point the state interests as to protection of health,
medical standards, and prenatal life, become dominant." Roe v. Wade,
supra, 410 U.S. at 155, 93 S. Ct. at 728, 35 L. Ed. 2d at 178. The balance
struck in Roe v. Wade recognizes increasing rights in the fetus and correlative
restrictions on the mother as the pregnancy progresses. Similarly, in the
termination-of-treatment cases, courts generally have viewed a patient's
right to terminate or refuse life-sustaining treatment as constrained by
other considerations including the rights of innocent third parties, such
as the patient's children. Matter of Farrell,
108 N.J. 335,
352 (1987); Matter of Conroy,
98 N.J. 321,
353 (1985). Consistent with that approach, this Court has directed a mother
to submit to a life-saving blood transfusion to protect the interests of
her unborn infant, even though the mother's religious scruples led her to
oppose the transfusion. Raleigh-Fitkin Paul Morgan Hosp. v. Anderson,
42 N.J. 421,
423 (1964); see also Application of President & Directors of Georgetown
College, 331 F.2d 1000, 1008 (D.C.Cir.), cert. den., 377 U.S. 978, 84 S.
Ct. 1883, 12 L. Ed. 2d 746 (1964) (ordering blood transfusion because of
mother's "responsibility to the community to care for her infant").
In the present case, the parties' right to procreate by methods of their
own choosing cannot be enforced without consideration of the state's interest
in protecting the resulting child, just as the right to the companionship
of one's child cannot be enforced without consideration of that crucial
|||*fn14 This fundamental right is not
absolute. The parent-child biological relationship, by itself, does not
create a protected interest in the absence of a demonstrated commitment
to the responsibilities of parenthood; a natural parent who does not come
forward and seek a role in the child's life has no constitutionally protected
relationship. Lehr v. Robertson, supra, 463 U.S. at 258-62, 103 S. Ct. at
2991-93, 77 L. Ed. 2d at 624-27; Quilloin v. Walcott, supra, 434 U.S. at
254-55, 98 S. Ct. at 554, 54 L. Ed. 2d at 519-20. The right is not absolute
in another sense, for it is also well settled that if the state's interest
is sufficient the right may be regulated, restricted, and on occasion terminated.
See Santosky v. Kramer, supra, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed.
|||*fn15 Were we to find such a constitutional
determination necessary, we would be faced with the question of whether
it was state action -- essential in triggering the fourteenth amendment
-- that deprived her of that right i.e., whether the judicial decision enforcing
the surrogacy contract should be considered "state action" within
the scope of the fourteenth amendment. See Shelley v. Kraemer, 334 U.S.
1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948); Cherminsky, "Rethinking State
Action," 80 Nw.U.L.Rev. 503 (1985).
|||*fn16 If the Legislature were to enact
a statute providing for enforcement of surrogacy agreements, the validity
of such a statute might depend on the strength of the state interest in
making it more likely that infertile couples will be able to adopt children.
As a value, it is obvious that the interest is strong; but if, as plaintiffs
assert, ten to fifteen percent of all couples are infertile, the interest
is of enormous strength. This figure is given both by counsel for the Sterns
and by the trial court,
217 N.J. Super. at 331.
We have been unable to find reliable confirmation of this statistic, however,
and we are not confident of its accuracy. We note that at least one source
asserts that in 1982, the rate of married couples who were both childless
and infertile was only 5.8%. B. Wattenberg, The Birth Dearth 125 (1987).
On such quantitative differences, constitutional validity can depend,
where the statute in question is justified as serving a compelling state
interest. The quality of the interference with the parents' right of companionship
bears on these issues: if a statute, like the surrogacy contract before
us, made the consent given prior to conception irrevocable, it might be
regarded as a greater interference with the fundamental right than a statute
that gave that effect only to a consent executed, for instance, more than
six months after the child's birth. There is an entire spectrum of circumstances
that strengthen and weaken the fundamental right involved, and a similar
spectrum of state interests that justify or do not justify particular
restrictions on that right. We do not believe it would be wise for this
Court to attempt to identify various combinations of circumstances and
interests, and attempt to indicate which combinations might and which
might not constitutionally permit termination of parental rights. We will
say this much, however: a parent's fundamental right to the companionship
of one's child can be significantly eroded by that parent's consent to
the surrender of that child. That surrender, if voluntarily and knowingly
made, may reduce the strength of that fundamental right to the point where
a statute awarding custody and all parental rights to an adoptive couple,
especially one that includes a parent of the child, would be valid.
|||*fn17 At common law the rights of
women were so fragile that the husband generally had the paramount right
to the custody of children upon separation or divorce. State v. Baird, 21
N.J. Eq. 384, 388 (E. & A. 1869). In 1860 a statute concerning separation
provided that children "within the age of seven years" be placed
with the mother "unless said mother shall be of such character and
habits as to render her an improper guardian." L. 1860, c. 167. The
inequities of the common-law rule and the 1860 statute were redressed by
an 1871 statute, providing that "the rights of both parents, in the
absence of misconduct, shall be held to be equal." L. 1871, c. 48,
§ 6 (currently codified at N.J.S.A. 9:2-4). Under this statute the father's
superior right to the children was abolished and the mother's right to custody
of children of tender years was also eliminated. Under the 1871 statute,
"the happiness and welfare of the children" were to determine
custody, L. 1871, c. 48, § 6, a rule that remains law to this day. N.J.S.A.
Despite this statute, however, the "tender years" doctrine
persisted. See, e.g., Esposito v. Esposito,
41 N.J. 143,
145 (1963); Dixon v. Dixon, 71 N.J. Eq. 281, 282 (E. & A.1906); M.P.
169 N.J. Super. 425,
435 (App.Div.1979). This presumption persisted primarily because of the
prevailing view that a young child's best interests necessitated a mother's
care. Both the development of case law and the Parentage Act, N.J.S.A.
9:17-40, however, provide for equality in custody claims. In Beck v. Beck,
86 N.J. 480,
488 (1981), we stated that it would be inappropriate "to establish
a presumption . . . in favor of any particular custody determination,"
as any such presumption may "serve as a disincentive for the meticulous
fact-finding required in custody cases." This does not mean that
a mother who has had custody of her child for three, four, or five months
does not have a particularly strong claim arising out of the unquestionable
bond that exists at that point between the child and its mother; in other
words, equality does not mean that all of the considerations underlying
the "tender years" doctrine have been abolished.
|||*fn18 Subsequent to trial, and by
the time of oral argument, Mr. and Mrs. Whitehead had separated, and the
representation was that there was no likelihood of change. Thereafter Mrs.
Whitehead became pregnant by another man, divorced Mr. Whitehead, and remarried
the other man. Both children are living with Mrs. Whitehead and her new
husband. Both the former and present husband continue to assert the desire
to have whatever parental relationship with Melissa that the law allows,
Mrs. Whitehead continuing to maintain her claim for custody.
We refer to this development only because it suggests less stability
in the Whiteheads' lives. It does not necessarily suggest that Mrs. Whitehead's
conduct renders her any less a fit parent. In any event, this new development
has not affected our decision.
|||*fn19 As we have done in similar situations,
we order that this matter be referred on remand to a different trial judge
by the vicinage assignment judge. The original trial judge's potential "commitment
to its findings," New Jersey Div. of Youth & Family Servs. v. A.W.,
103 N.J. at 617,
and the extent to which a judge "has already engaged in weighing the
evidence," In re Guardianship of R.,
155 N.J. Super. 186,
195 (App.Div.1977), persuade us to make that change. On remand the trial
court will consider developments subsequent to the original trial court's
opinion, including Mrs. Whitehead's divorce, pregnancy, and remarriage.
|||*fn20 Ordinarily relaxation of the
Rules of Evidence depends on specific authority, either within the Rules
or in statutes. See N.J.Rules of Evidence, Comment 2 to Evid.R. 2(2), 72-76
(1987). There are numerous examples, however, of relaxation of these Rules
in judicial proceedings for reasons peculiar to the case at hand. We regard
the circumstances of the visitation aspect of this case as most unusual.
In addition to the ordinary risks to the stability of an infant caused by
prolonging this type of litigation, here there are risks from publicity
that we simply cannot quantify. We have no doubt that these circumstances
justify any sensible means of abbreviating the remand hearing.
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