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. Violation is a high misdemeanor. Excepted
are fees of an approved agency (which must be a non-profit entity), and
certain expenses in connection with childbirth.
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 “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.
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 strains
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
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.
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. Furthermore, the adoptive
parents may not be fully informed of the natural parents’ medical history.
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, fails to comply 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, or where there has
been a showing of parental abandonment or unfitness.
Such an action, whether or not in conjunction with a pending adoption, may
proceed on proof of written surrender, “forsaken parental obligation,” or other
specific grounds such as death or insanity. 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.”
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
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.
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.