In the Matter of Baby M, 525 A.2d 1128 (N.J. Super. Ct. Ch. Div. 1987)

It was the early 1980s, and Drs. William and Elizabeth Stern wanted to have children. They were barely middle-aged, but Elizabeth had multiple sclerosis and feared complications from a pregnancy. The Sterns found Mary Beth Whitehead, a 29-year-old from New Jersey, through a Manhattan surrogate agency. Whitehead agreed to a fee of $10,000 to bear Mr. Stern’s child via insemination and yield her parental rights. On March 27, 1986, Whitehead gave birth to a girl. A week later, Mary Beth begged the Sterns to give the child back. The Sterns assented to a temporary visit, but Whitehead wouldn’t return the infant until compelled by police officers.

New Jersey had no laws governing surrogacy agreements. Neither did any other state. Judge Harvey Sorkow defined the matter as a basic custody case, with the best interest of the girl—known in court documents as Baby M—governing his decision. During the haphazard proceedings, the Sterns’ counsel supplied a recorded phone call Whitehead placed to William Stern’s office while she had possession of the baby, in which she stated, “I gave her life, I can take her life away.” On April 1, 1987, Sorkow granted custody to the Sterns and terminated Whitehead’s rights as the baby’s mother. The following February, the Supreme Court of New Jersey reversed Sorkow’s verdict. Whitehead got visitation rights, but the Sterns kept custody.

To this day, there is no national regulation of surrogacy agreements, and eight states operate without a statute.