In The Best Interests of a Child

By Richard Lacayo

Just over a year ago, when Baby M. was delivered, not many people had given thought to the issues of surrogate birth. By last week, when the custody judgment was rendered, was there anyone still unschooled in its painful dilemmas? Even so, no one can have felt the lessons more deeply than the child's father, William Stern, a New Jersey biochemist who was awarded custody, or her mother, Mary Beth Whitehead, who lost the little girl she gave birth to as part of their surrogate agreement.

The 32-day nonjury trial put flesh on once abstract matters. It made plain the almost palpable tenderness of Stern and his wife Elizabeth, a pediatrician, both 41, and the no less compelling attachment of Whitehead, 29, and her husband Richard, 37, a sanitation worker. It savagely peered into problems of the Whitehead household -- his battle with alcoholism, their financial setbacks -- that raised doubts about whether surrogacy permits the more prosperous and sophisticated to exploit those who are less so. It offered the dismaying court spectacle of a mental-health expert disparaging Whitehead's skills as a mother because of how she played pat-a-cake.

While news teams from as far away as Sweden and the Soviet Union looked on, Judge Harvey Sorkow, 57, read his decision for three hours to a packed courtroom in Hackensack, N.J. Declaring the contract valid, he rejected arguments that it might violate public policy or laws against baby selling. A father cannot buy "what is already his," the judge said. He maintained that the surrogacy option was protected under constitutional privacy guarantees that include the right to procreate. In a crucial caveat, however, he said the contract was not automatically enforceable, because when conflicts arose the "best interests of the child" should prevail. Thus it was her best interests, and not the existence of a contract, that led him to award custody of Baby M. to Stern.

But Sorkow went further. He stripped Whitehead of her parental rights. Barring a reversal of his decision, she may never legally see her child again. Apparently anticipating defeat, Whitehead sat out the verdict at home, 50 miles away. Earlier that day, in a regular court-approved visit, she had spent two hours with her daughter in the neutral territory of a local youth center. The judge had shown exasperation with Whitehead's lead attorney at several points during the trial. Even so, the vehemence of his language in the ruling came as a shock to many. Perhaps with an eye to safeguarding the custody portion of his judgment from second-guessing in the appeals phase, he slashed at Whitehead's fitness as a mother, calling her "manipulative, impulsive and exploitive" as well as "untruthful" and charging that she was too possessive of her children.

Immediately after reading his decision, Sorkow called the Sterns into his chambers and to their surprise proceeded to the adoption by which Dr. Stern was named the baby's legal mother. Four days after her first birthday, Baby M. got the belated gift of a new name on her birth certificate: Melissa Elizabeth Stern. The jubilant father told reporters, "I'm so happy." Then he broke down in tears.

Though Sorkow's decision applies only to this case, it is sure to be studied by other trial judges. "It was everything one could hope for," crowed Noel Keane, the lawyer from Dearborn, Mich., who pioneered the surrogate-brokerage field eleven years ago and who helps run the New York City infertility center that arranged the contract between Whitehead and Stern. "Couples are going to feel more comfortable entering into this agreement," he observed. "It is important to remember that Mary Beth is just one case."

Keane's view is almost certainly too rosy. The ruling could not and did not settle all the difficulties. Inquiries from infertile couples have increased since the Baby M. publicity, and an estimated 500 surrogate births have already taken place. The great majority appear to have gone smoothly, but problems do arise. In one of Keane's cases, the contracting couple divorced after the start of the pregnancy and successfully pressed the surrogate to abort. Almost all such arrangements now involve fees (often a total of $25,000) paid to the surrogate and to those who manage the details. The Baby M. decision may encourage nonprofit clinics and adoption agencies to enter the field, predicts Lori Andrews, an American Bar Foundation expert on surrogacy. "Since it was so legally risky, the only groups willing to get involved before were entrepreneurs."

Sorkow's opinion urged legislatures to give much needed guidance. Though none have yet passed laws, about a dozen states, including New Jersey, are wrestling with proposals that include removing the profit motive or allowing a surrogate mother to change her mind up to a month after the birth. The likely result is a nationwide patchwork of laws in which some forbid the arrangement and others, by legalizing it, emerge as "surrogacy states."

While the states inch toward their separate conclusions, the contest over Baby M. now moves to the appeals courts. Attorneys for Whitehead seek to appeal directly to the state supreme court. But an appellate panel quickly ruled that, pending any such appeal, she should have no further visits with the child. Two days after Sorkow's ruling, the Whiteheads emerged for a press conference. Fighting back sobs, Mary Beth expressed confidence that the higher courts would return her daughter. Using the name she had chosen for the child, Whitehead promised, "Until Sara comes home, my fight will continue." Then she added that they will keep a crib ready for the baby's return.

With reporting by Roger Franklin/Hackensack and Elizabeth Taylor/Chicago