The Surrogate Mother Contract: In the Best Interests of Society?

On March 31, 1987, Judge Harvey R. Sorkow upheld, for the first time, the validity of a surrogate mother-contract in his decision, In the Matter of Baby M. In broad and sweeping language, the judge deemed the contract between the natural mother, Mary Beth Whitehead, (termed the surrogate, pursuant to the contract language) and the natural father, William Stern, specifically enforceable. Judge Sorkow thus terminated Whitehead\u27s parental rights to the child she bore and permanently denied her claims for future custody or future visitation. Creating new law, the judge held that baby selling and adoption laws do not pertain to surrogacy contracts and that such agreements are not in contravention of the public policy of New Jersey. Enforcing the surrogate contract, the judge utilized a hybrid standard incorporating traditional contract analysis (the two parties voluntarily entered the agreement and were to receive consideration involving $10,000 for Whitehead and the services of carrying and bearing a child for Stern) with a test determining the best interests of the child, the latter of which is routinely applied in traditional custody cases. The case arose when Whitehead decided to keep the baby at birth and refused the $10,000. Deciding Whitehead could not renege on the bargain, the judge found that Stern\u27s right to procreate noncoitally was protected under the fourteenth amendment\u27s guarantees of privacy and equal protection; Whitehead\u27s concomitant right to raise her child was denied