537 A.2d 1227 (N.J. 1988), Matter of Baby M

Citation:537 A.2d 1227, 109 N.J. 396
Opinion Judge:[30] Wilentz
Party Name:In the Matter of BABY M, a pseudonym for an actual person.
Attorney:[7] Harold J. Cassidy and Alan J. Karcher argued the cause for appellants, Mary Beth and Richard Whitehead (Cassidy, Foss & San Filippo, attorneys; Harold J. Cassidy, Alan J. Karcher, Robert W. Ruggieri, Randolph H. Wolf, and Louis N. Rainone, on the briefs).
Case Date:February 03, 1988
Court:Supreme Court of New Jersey
 
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537 A.2d 1227 (N.J. 1988)

109 N.J. 396

In the Matter of BABY M, a pseudonym for an actual person.

Supreme Court of New Jersey.

February 3, 1988

Argued Sept. 14, 1987.

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[109 N.J. 407] Harold J. Cassidy, Red Bank, and Alan J. Karcher, Sayreville, for appellants, Mary Beth and Richard Whitehead (Cassidy, Foss & San Filippo, attorneys; Harold J. Cassidy, Red Bank, Alan J. Karcher, Sayreville, Robert W. Ruggieri, Somerville, Randolph H. Wolf, Red Bank, and Louis N. Rainone, Sayreville, on the briefs).

Gary N. Skoloff, Livingston, for respondents, William and Elizabeth Stern (Skoloff & Wolfe, attorneys; Gary N. Skoloff, Francis W. Donahue, and Edward J. O'Donnell, on the brief).

Lorraine A. Abraham, Hackensack, Guardian ad litem, pro se (Lorraine A. Abraham, attorney; Lorraine A. Abraham and Steven T. Kearns, on the brief).

Annette M. Tobia, Lawrenceville, submitted a brief on behalf of amicus curiae Dr. Betsy P. Aigen, (Spivak & Tobia, attorneys).

George B. Gelman, Hackensack, submitted a brief on behalf of amicus curiae American Adoption Congress (Gelman & McNish, attorneys).

Steven N. Taieb, Mount Laurel, and Steven F. McDowell, Milwaukee, Wis., a member of the Wisconsin bar, submitted a brief on behalf of amicus curiae Catholic League for Religious and Civil Rights.

Steven P. Weissman submitted a brief on behalf of amicus curiae Communications Workers of America, AFL-CIO.

John R. Holsinger, Merrill O'Brien, Roseland, Mary Sue Henifin, and John H. Hall, and Terry E. Thornton, New York City, members of the New York bar, submitted a brief on behalf of amicus curiae Concerned United Birthparents, Inc. (Ellenport & Holsinger, Roseland, attorneys).

David H. Dugan, III, Moorestown, and Joy R. Jowdy, a member of the Texas bar, submitted a brief on behalf of amici curiae Concerned Women for America, Eagle Forum, National Legal Foundation, Family Research Council of America, United Families Foundation, and Judicial Reform Project. [109 N.J. 408]

Alfred F. Russo, Woodbridge, and Andrew C. Kimbrell, a member of the Pennsylvania bar, and Edward Lee Rogers, Washington, D.C., a member of the District of Columbia bar, submitted a brief on behalf of amici curiae The Foundation on Economic Trends, Jeremy Rifkin, Betty Friedan, Gloria Steinem, Gena Corea, Barbara Katz-Rothman, Lois Gould, Marilyn French, Hazel Henderson, Grace Paley, Evelyn Fox Keller, Shelly Mindin, Rita Arditti, Dr. Janice Raymond, Dr. Michelle Harrison, Dr. W.D. White, Sybil Shainwald, Mary Daly, Cathleen Lahay, Karen Malpede, Phylis Chesler, Kristen Golden, Letty Cottin Pogrebin, and Ynestra King (Russo & Casey, Woodbridge, attorneys).

Louis E. Della Torre, Jr., Jersey City, submitted a brief on behalf of amicus curiae The Gruter Institute for Law and Behavioral Research, Inc. (Schumann, Hession, Kennelly & Dorment, attorneys).

Kathleen E. Kitson, Hoboken, Sharon F. Liebhaber, Teaneck, and Myra Sun, a member of the Washington bar, submitted a brief on behalf of amici curiae Hudson County Legal Services Corporation and National Center on Women and Family Law, Inc. (Timothy K. Madden, Director, Hudson County Legal Services Corporation, Jersey City, attorney).

Priscilla Read Chenoweth, Newark, submitted a brief on behalf of amici curiae Committee for Mother and Child Rights, Inc. and Origins.

Herbert D. Hinkle, Lawrenceville, submitted a brief on behalf of amicus curiae National Ass'n of Surrogate Mothers.

Joseph M. Nardi, Jr., Haddonfield, and Edward F. Canfield, Washington, D.C., a

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member of the District of Columbia bar, submitted a brief on behalf of amicus curiae The National Committee for Adoption, Inc. (Lario, Nardi & Gleaner, Haddonfield, attorneys).

Charlotte Rosin, pro se, submitted a letter in lieu of brief on behalf of amicus curiae National Infertility Network Exchange.

William F. Bolan, Jr., Trenton, submitted a brief on behalf of amicus curiae New Jersey Catholic Conference. [109 N.J. 409]

Paul J. McCurrie, Kearny, and Cyril C. Means, Jr., a member of the Michigan bar, with whom Priscilla Read Chenoweth and Cathleen M. Halko were on the brief, submitted a brief on behalf of amici curiae Odyssey Institute International, Inc., Odyssey Institute of Connecticut, Inc., Florence Fisher, Judianne Densen-Gerber, Senator Connie Binsfeld, and Angela Holder.

Merrilee A. Scilla, pro se, submitted a letter in lieu of brief on behalf of amicus curiae RESOLVE of Central New Jersey.

Jerrold N. Kaminsky, North Brunswick, submitted a brief on behalf of amicus curiae RESOLVE, Inc.

Richard J. Traynor, Morristown, and John W. Whitehead, Manassas, Va., a member of the Virginia bar, and David A. French, Ann Arbor, Mich., a member of the Michigan bar, submitted a brief on behalf of amicus curiae The Rutherford Institute (Traynor and Hogan, Morristown, attorneys).

Nadine Taub, Newark, submitted a brief on behalf of amici curiae Women's Rights Litigation Clinic at Rutgers Law School, The New York State Coalition on Women's Legislative Issues, and the National Emergency Civil Liberties Committee.

Table of Contents Introduction 410 I. Facts 411 II. Invalidity and Unenforceability of Surrogacy Contract 421 A. Conflict with Statutory Provisions 423 B. Public Policy Considerations 434 III. Termination 444 IV. Constitutional Issues 447 V. Custody 452 VI. Visitation 463 Conclusion 468

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[109 N.J. 410] The opinion of the Court was delivered by

WILENTZ, C.J.

In this matter the Court is asked to determine the validity of a contract that purports to provide a new way of bringing children into a family. For a fee of $10,000, a woman agrees to be artificially inseminated with the semen of another woman's husband; she is to conceive a child, carry it to term, and after its birth surrender it to the natural father and his wife. The intent of the contract is that the child's natural mother will thereafter be forever separated from her child. The wife is to adopt the child, and she and the natural father are to be [109 N.J. 411] regarded as its parents for all purposes. The contract providing for this is called a "surrogacy contract," the natural mother inappropriately called the "surrogate mother."

We invalidate the surrogacy contract because it conflicts with the law and public policy of this State. While we recognize the depth of the yearning of infertile couples to have their own children, we find the payment of money to a "surrogate" mother illegal, perhaps criminal, and potentially degrading to women. Although in this case we grant custody to the natural father, the evidence having clearly proved such custody to be in the best interests of the infant, we void both the termination of the surrogate mother's parental rights and the adoption of the child by the wife/stepparent. We thus restore the "surrogate" as the mother of the child. We remand the issue

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of the natural mother's visitation rights to the trial court, since that issue was not reached below and the record before us is not sufficient to permit us to decide it de novo.

We find no offense to our present laws where a woman voluntarily and without payment agrees to act as a "surrogate" mother, provided that she is not subject to a binding agreement to surrender her child. Moreover, our holding today does not preclude the Legislature from altering the current statutory scheme, within constitutional limits, so as to permit surrogacy contracts. Under current law, however, the surrogacy agreement before us is illegal and invalid.

I.

FACTS

In February 1985, William Stern and Mary Beth Whitehead entered into a surrogacy contract. It recited that Stern's wife, Elizabeth, was infertile, that they wanted a child, and that Mrs. Whitehead was willing to provide that child as the mother with Mr. Stern as the father. [109 N.J. 412]

The contract provided that through artificial insemination using Mr. Stern's sperm, Mrs. Whitehead would become pregnant, carry the child to term, bear it, deliver it to the Sterns, and thereafter do whatever was necessary to terminate her maternal rights so that Mrs. Stern could thereafter adopt the child. Mrs. Whitehead's husband, Richard, 1 was also a party to the contract; Mrs. Stern was not. Mr. Whitehead promised to do all acts necessary to rebut the presumption of paternity under the Parentage Act. N.J.S.A. 9:17-43a(1), -44a. Although Mrs. Stern was not a party to the surrogacy agreement, the contract gave her sole custody of the child in the event of Mr. Stern's death. Mrs. Stern's status as a nonparty to the surrogate parenting agreement presumably was to avoid the application of the baby-selling statute to this arrangement. N.J.S.A. 9:3-54.

Mr. Stern, on his part, agreed to attempt the artificial insemination and to pay Mrs. Whitehead $10,000 after the child's birth, on its delivery to him. In a separate contract, Mr. Stern agreed to pay $7,500 to the Infertility Center of New York ("ICNY"). The Center's advertising campaigns solicit surrogate mothers and encourage infertile couples to consider surrogacy. ICNY arranged for the surrogacy contract by bringing the parties together, explaining the process to...

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