Supreme Court of New Jersey - 109 N.J. 396
In the landmark family law case of Baby M (1988), the New Jersey Supreme Court considered if a surrogacy contract was valid and enforceable. The case involved a custody dispute over a child born to a surrogate. William and Elizabeth Stern (plaintiffs), a couple unable to have children due to Elizabeth's multiple sclerosis, contracted with Mary Beth Whitehead (defendant) for her to carry their child. The contract stipulated that Whitehead would receive $10,000 and relinquish her parental rights after giving birth. However, Whitehead changed her mind, leading to a legal battle over the child's custody and parentage.
The trial court sided with the Sterns, ruling the surrogacy contract was valid and enforceable. Whitehead appealed, and the Supreme Court reversed the decision, finding the contract invalid and unenforceable. They applied a "best interests of the child" standard and determined the contract violated public policy by treating children as commodities and undermining family relationships. The court recognized Whitehead's parental rights, noting her emotional bond with the child.
The case was remanded to determine custody based on the child's best interests, possibly through joint custody or visitation rights for both parents. The damages against Whitehead were also vacated. This case was significant as the first state supreme court case challenging surrogacy contract legality, sparking national debate on the ethical, social, and legal implications of surrogacy.
The court declared a surrogacy contract illegal and voided it due to the fee for surrendering parental rights. The natural mother's parental rights were restored, and the adoption by the wife/stepparent was nullified. The surrogacy contract was unenforceable due to its primary purpose of achieving private adoption, which is disfavored in New Jersey, and the use of money to obtain an adoption, which is illegal and potentially criminal. The court found that the lower court may have erred in not considering the adequacy of legal advice provided to Mary Beth Whitehead, the potential conflict of interest and lack of transparency on the part of the Infertility Center, and the best interests of the child and the natural mother's rights. The court ruled that termination of a natural parent's rights cannot be based solely on the child's welfare, and surrender and consent to adoption through private placement are insufficient grounds for termination. The appellate court found the trial court's ex parte order transferring custody to the father in a surrogacy dispute to be erroneous due to the unenforceability and illegality of the surrogacy contract. The judgment is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. The trial court must determine the type of visitation, whether it will have conditions, and when it should start, considering the best interests of the child and the parents' interests. The Legislature has the power to regulate surrogacy subject to constitutional constraints.
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