In re Baby M was the 1988 New Jersey Supreme Court decision that struck down a commercial surrogacy contract as illegal baby-selling, ruling that a mother cannot be bound by contract to surrender her child in exchange for money. Chief Justice Robert Wilentz, writing for a unanimous court, held that the $10,000 payment to the surrogate violated New Jersey’s adoption statutes and that her parental rights could not be terminated on the basis of the agreement.1Justia. Matter of Baby M. The court still placed the child with her biological father under the best-interests-of-the-child standard, but it restored the surrogate’s parental rights, voided the adoption the trial judge had rushed through, and sent visitation back to the trial court. The decision reshaped surrogacy law across the country.
The Contract and the Parties
William Stern and his wife Elizabeth wanted a child but believed pregnancy carried medical risk for Elizabeth, who had been told she likely had a mild case of multiple sclerosis. They contacted the Infertility Center of New York, a for-profit Manhattan agency, which matched them with Mary Beth Whitehead. Whitehead agreed to be artificially inseminated with William Stern’s sperm, carry the pregnancy to term, and surrender the baby so Elizabeth Stern could adopt her. In exchange, the contract promised Whitehead $10,000 upon delivery, plus reimbursement of medical expenses.1Justia. Matter of Baby M.
The safeguards around the agreement were thin. Whitehead’s lawyer was referred by the Infertility Center itself and spent roughly an hour reviewing the contract with her. A psychologist evaluated Whitehead and warned that she might have difficulty giving up the child, but the center never acted on the finding, and the Sterns never asked to see it.2Louisiana State University Law Center. In re Baby M Both sides signed the contract before insemination.
The Baby’s Birth and the Flight to Florida
Whitehead gave birth to a daughter on March 27, 1986. She handed the infant to the Sterns three days later. The next day she came back and asked for the baby, saying she could not go through with the surrender. When the Sterns sought a court order enforcing the contract, Whitehead and her husband took the baby and fled to Florida. They remained in hiding for roughly 87 days. Authorities eventually located them, and the child was returned to New Jersey, where the Sterns held temporary custody through trial.
The Trial Court’s Decision
Judge Harvey Sorkow ruled that the surrogacy contract was valid and enforceable, treating it as an ordinary agreement between consenting adults. He terminated Whitehead’s parental rights, then called the Sterns into his chambers and completed Elizabeth Stern’s adoption of the child the same afternoon. Whitehead appealed.
What the New Jersey Supreme Court Held
The Supreme Court reversed almost everything except the placement of the child with the Sterns. Wilentz’s opinion identified several independent reasons the contract could not stand.
The Payment Was Baby-Selling
New Jersey law barred paying money in connection with an adoption, with a narrow exception for medical expenses. The court found that the $10,000 was not compensation for pregnancy services but payment for Whitehead’s surrender of parental rights: had she kept the baby, she would have been paid nothing. That made the arrangement functionally identical to buying a child, conduct the statute classified as a high misdemeanor.1Justia. Matter of Baby M. The court called the contract “illegal, perhaps criminal, and potentially degrading to women.”
The Consent Was Not Valid
New Jersey adoption law allowed a birth mother to revoke her consent to surrender. The surrogacy contract attempted to make Whitehead’s consent irrevocable before she was even pregnant. The court held that consent given before birth was uninformed in the way that mattered most, and consent given after birth under the pressure of a signed contract and the threat of suit was not fully voluntary either.2Louisiana State University Law Center. In re Baby M
The Agency’s Conduct Undermined the Process
The court criticized the Infertility Center of New York, which collected a $7,500 brokerage fee. The center referred Whitehead to the lawyer who gave her an hour of counsel, and it disregarded the psychologist’s warning about her. The profit motive, the court concluded, had overwhelmed whatever protective function the process was meant to serve.
Custody, Parental Rights, and Visitation
Invalidating the contract did not decide who would raise the child. The court separated those questions and applied the best-interests-of-the-child standard used in any custody dispute. Weighing household stability, parental fitness, and the child’s existing ties, it affirmed placement with William and Elizabeth Stern, where the child had been living throughout the litigation.1Justia. Matter of Baby M.
The court then reversed the termination of Whitehead’s parental rights, finding no basis for termination under the standards that normally apply, which require proof of parental unfitness or abandonment. Elizabeth Stern’s adoption was voided.2Louisiana State University Law Center. In re Baby M Visitation was sent back to the trial court, which later granted Whitehead unsupervised, liberal visitation. The result was a split arrangement no one had contracted for: the child lived with the Sterns, and Whitehead remained her legal mother with regular access.
Traditional Surrogacy vs. Gestational Surrogacy
One detail shaped every legal question in the case. Whitehead provided the egg and was artificially inseminated, so she was the child’s biological mother. That is called traditional surrogacy, and it triggers the full weight of a birth mother’s parental rights.
Modern surrogacy overwhelmingly uses gestational surrogacy, in which an embryo created through in vitro fertilization is transferred to a carrier who has no genetic connection to the child. Because the carrier shares no DNA with the baby, the legal framework is different. Courts in most states will issue a pre-birth parentage order naming the intended parents, often without an adoption proceeding at all. Traditional surrogacy of the kind at issue in Baby M is rare today, and most agencies and clinics will not facilitate it. The Baby M ruling still directly governs traditional arrangements in New Jersey; the state’s later surrogacy statute reaches only gestational carriers.
How Baby M Changed Surrogacy Law
The decision forced state legislatures across the country to confront whether commercial surrogacy should be legal and under what conditions. Several states responded by banning or heavily restricting paid surrogacy. Over the past two decades the trend has shifted toward permitting gestational surrogacy with safeguards that directly answer the failures the Baby M court identified.
New Jersey’s Own Response
New Jersey did not pass surrogacy legislation until 2018, three decades after the ruling. The New Jersey Gestational Carrier Agreement Act permits gestational surrogacy contracts and imposes specific requirements. The carrier and each intended parent must have separate, independent legal representation, and each attorney must file an affidavit confirming it. Both sides must complete medical and psychological screenings before signing, and the agreement must be executed before any embryo transfer.3Justia. New Jersey Revised Statutes Title 9 Section 9-17-65 – Requirements for a Gestational Carrier Agreement An agreement meeting these requirements is presumed enforceable. The statute applies only to gestational surrogacy.
The National Picture
The legal treatment of surrogacy now varies widely. A large majority of states permit gestational surrogacy in some form. Some grant pre-birth parentage orders to all intended parents without restriction; others impose conditions based on marital status, residency, or genetic connection. A handful still declare surrogacy contracts void or unenforceable by statute, and one state effectively prohibits compensated surrogacy through case law.
The 2017 revision of the Uniform Parentage Act sets out a model framework: the carrier must be at least 21 and have previously given birth, both sides must complete medical and mental health evaluations, independent counsel is mandatory, the intended parents pay for the carrier’s attorney, and the written agreement must be signed and witnessed or notarized before any medical procedures begin. Several states have adopted portions of that framework.
Each of these safeguards answers a specific failing the Baby M court identified: a surrogate whose lawyer was picked by the agency, psychological warnings that were ignored, and a contract designed to lock in her consent before she could understand what she was agreeing to. The reforms exist because one case showed, in unusual detail, how the process could go wrong.