Baby M, In re

Supreme Court of New Jersey · 1988 · Contracts

surrogacypublic policyvoid contractsparentageadoptiontermination of parental rightscustodyvisitation

Facts

William Stern and Mary Beth Whitehead entered a contract under which Whitehead would be artificially inseminated with Stern's sperm, carry the child, surrender the baby after birth, terminate her parental rights, and receive $10,000. After Baby M was born, Whitehead initially turned the child over but quickly sought the baby's return and refused to relinquish her permanently. Stern sued to enforce the contract, and the trial court eventually upheld the contract, terminated Whitehead's parental rights, granted custody to Stern, and permitted Stern's wife to adopt. Whitehead was not found unfit, and the trial court expressly found she was a good mother to her other children.

Issue

Whether a paid surrogacy contract requiring the natural mother, before conception and birth, to surrender the child and cooperate in termination of her parental rights is valid and enforceable under New Jersey law. If not, whether the natural mother's parental rights could nevertheless be terminated and who should receive custody of the child.

Rule

A surrogacy contract is invalid and unenforceable when it uses money in connection with adoption, requires a pre-birth irrevocable surrender of custody, and seeks termination of the natural mother's parental rights outside the statutory framework. Under New Jersey law, parental rights cannot be terminated by contract; absent a valid surrender to an approved agency or DYFS, termination requires the applicable statutory showing of abandonment, neglect, unfitness, or equivalent grounds, and a best-interests finding alone is insufficient. In a custody dispute between the natural parents, the mother's and father's claims are equal and custody is determined by the child's best interests.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Newark, Jonah Ellis and his wife sign an agreement with Cara Moreno under which Cara will be inseminated with Jonah's sperm, carry the child, surrender the baby at birth, and accept $18,000 after delivery. When the child is born, Cara refuses to relinquish the baby and Jonah sues to enforce the agreement.

How should a New Jersey court most likely rule on Jonah's claim for enforcement?

Explanation. The majority held that a surrogacy contract is invalid when it combines payment, prebirth surrender, and contractual termination of the natural mother's rights. The money is treated as payment in connection with obtaining adoption, not merely payment for services. A best-interests finding cannot save the contract, and ordinary contract defenses are not the exclusive basis for invalidity.