Baby M

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Baby M (born March 27, 1986) was the pseudonym used in the case In re Baby M, 537 A.2d 1227, 109 N.J. 396 (N.J. 1988) for the infant whose legal parentage was in question.


In re Baby M was a custody case that became the first American court ruling on the validity of surrogacy. William Stern entered into a surrogacy agreement with Mary Beth Whitehead, whom he and his wife Elizabeth Stern found through a newspaper ad. According to the agreement, Mary Beth Whitehead would be inseminated with William Stern's sperm (making her a traditional, as opposed to gestational, surrogate), bring the pregnancy to term, and relinquish her parental rights in favor of William's wife, Elizabeth. After the birth, however, Mary Beth decided to keep the child. Mary Beth initially relinquished the child to the Sterns, but days later, she and her husband kidnapped the infant. William and Elizabeth Stern then sued to be recognized as the child's legal parents.


The New Jersey court ruled that the surrogacy contract was invalid according to public policy, recognized Mary Beth Whitehead as the child's legal mother, and ordered the Family Court to determine whether Whitehead, as mother, or Stern, as father, should have legal custody of the infant, using the conventional 'best interests of the child' analysis. Stern was awarded custody, with Whitehead having visitation rights.

At birth, Mary Beth Whitehead named Baby M. Sara Elizabeth Whitehead. She was later renamed Melissa Elizabeth Stern, after William Stern was awarded legal custody.

Background details[edit]

In March 1984, Mary Beth Whitehead responded to an ad placed by the Infertility Center of New York in the Asbury Park Press seeking women willing to help infertile couples have children. She was a high school drop-out who had married Richard Whitehead, a truck driver with whom she had two children, Ryan and Tuesday. At roughly the time of her pregnancy with Baby M, Richard was in an accident. He failed to notice that a trailer carrying a full-sized bulldozer had detached from the large dump truck he was driving, as he passed through South Jersey's largest traffic circle.[1][2][3]

Elizabeth Stern was not infertile, but had multiple sclerosis and she and her husband William Stern were worried about the potential health implications of pregnancy, including temporary paralysis,[4] and transmitting genes that might put a child who shared them at risk of developing the same illness.

The Sterns and Mary Beth Whitehead entered into a "surrogacy contract," according to which Whitehead would be artificially inseminated with Stern's sperm, and relinquish her parental rights in favor of the Sterns, in return for $10,000, and possibly expenses.

According to the initial decision, overruled, Whitehead would be considered a traditional surrogate, as opposed to a gestational surrogate, because she was the genetic mother of the child. The Sterns, both physicians, feared Elizabeth's eggs might carry genes making any child she bore vulnerable to developing MS.[clarification needed] While in vitro fertilization of harvested eggs, followed by implantation of a blastula/embryo was an available technology, Elizabeth Stern feared the then-totally-unknown genetic risk factors, the choice repeatedly subject of the Court's questions to Stern and his counsel.

On March 27, 1986, Whitehead gave birth to a daughter. She managed, initially, to get a birth certificate naming the infant Sara Elizabeth Whitehead.[5] Three days after the birth, the infant was handed to the Sterns, who renamed her Melissa Elizabeth Stern. However, within three days of transferring physical custody to the Sterns, Whitehead went to them and demanded that the baby be given back to her, allegedly threatening suicide. The Whiteheads, though claiming Mary Beth Whitehead was suffering a debilitating post-partum bladder infection at the time, kidnapped the infant, and left New Jersey, taking the infant with them. The Sterns’ counsel applied for, and the county prosecutor issued, warrants for their arrest.


On March 31, 1987, New Jersey Superior Court Judge Harvey R. Sorkow formally validated the surrogacy contract and awarded custody of Melissa to the Sterns under a "best interest of the child analysis." During about a year of visits ordered previously by the Family Court, and visits allowed under the final decision, Whitehead took several actions either to claim the child, or incite the Sterns, including returning her wearing a hand-lettered shirt saying "I have a brother and sister."[6]

On February 3, 1988, however, the Supreme Court of New Jersey, led by Chief Justice Robert Wilentz, invalidated surrogacy contracts as against public policy but in dicta affirmed the trial court's use of a "best interest of the child" analysis and remanded the case to family court. On remand, the lower court awarded custody to the Sterns and Whitehead was given visitation rights.[7][8]

Legal significance[edit]

The case attracted much attention as it demonstrated that the possibilities of third party reproduction raise novel legal and social questions about the meaning of parenthood and the possibility of contracting around issues of pregnancy and childbirth. Among other points of contention, feminists argued about whether a woman's basic human right to make decisions about her own body implied the ability to contract away parental rights to a child born to her, or whether recognizing such a right would entail too great risks of exploitation.[9]

The New Jersey court's finding that no contract can alter the legal position of a woman who bears a child as that child's mother seemed to settle the question of the status of surrogacy contracts in America, at least until technological advances permitting gestational surrogacy—in which a woman can bear and birth a child to whom she has no genetic relation—reopened the question in many jurisdictions.[10]

At least in New Jersey, however, the Baby M. ruling continues as precedent. In 2009, New Jersey Superior Court ruled that In re Baby M applies to gestational surrogacy as well as traditional surrogacy cases, in A.G.R. v. D.R.H & S.H.. The intended parents were a homosexual male couple. They created an embryo using an anonymous donor ovum and the sperm of one of the husbands. The sister of the other husband carried the embryo to term and originally delivered the child to her brother and his husband, but a year later asserted her own parental rights even though she was not genetically related to the child. Judge Francis Schultz relied on In re Baby M to recognize the gestational mother as the child's legal mother. However, a later ruling in 2011 awarded full custody to the biological father.[11]


After reaching the age of maturity in March 2004, Melissa Stern legally terminated Mary Beth's parental rights and formalized Elizabeth's maternity through adoption proceedings. When the controversy died down, Whitehead divorced her husband, remarried to Dean Gould, and had two more children, Austin and Morgan.[2]

"I love my family very much and am very happy to be with them," Melissa told a reporter for the New Jersey Monthly in 2007, referring to the Sterns. "I'm very happy I ended up with them. I love them, they're my best friends in the whole world, and that's all I have to say about it."[2]

The biological mother, Mary Beth Whitehead, wrote a book about her experience in 1989.[12]

In popular culture[edit]

An ABC Network miniseries, simply titled Baby M, was broadcast in May 1988. The miniseries starred JoBeth Williams as Mary Beth Whitehead, John Shea as William, Bruce Weitz as Mary Beth's husband Rick, Robin Strasser as Elizabeth and Dabney Coleman as Gary Skoloff. The miniseries received seven Emmy nominations,[13] including Outstanding Miniseries,[14] which it did not win. Williams, Shea, Weitz, and Coleman all received nominations for their performances, but only Shea won. Williams also was nominated for a Golden Globe for her performance.[15]

In 1989, Mary Beth Whitehead published her own book about her experiences, A Mother's Story: The Truth About the Baby M Case.[16]

In 1988, artist Martha Rosler made the video "Born to be Sold: Martha Rosler Reads the Strange Case of Baby M".[17]

Mary Beth Whitehead is referenced in the Seinfeld episode "The Bottle Deposit," when Jerry's mechanic (played by Brad Garrett) steals Jerry's car after he feels that Jerry isn't caring for it properly.[18]


  1. ^ Mary Beth Whitehead, A Mother’s Story (with Lotetta Schwartz-Noel)
  2. ^ a b c "Now It's Melissa's Time". New Jersey Monthly. 2007. Archived from the original on May 26, 2007. Retrieved March 6, 2007. Twenty years ago, Melissa was known as Baby M. She was the subject of an infamous custody battle between the Sterns and Mary Beth Gould (then Mary Beth Whitehead, of Bricktown). Whitehead had responded to an ad in the Asbury Park Press seeking women willing to help infertile couples have children. The Infertility Center of New York, which had placed the ad, matched her with William and Elizabeth Stern of Tenafly. Whitehead signed a surrogacy contract, agreeing to be inseminated with William Stern’s sperm, carry the baby, and then give it up.
  3. ^ Salkin, Allen (March 21, 1999). "She's Come A Long Way, Baby!: Gifted Child Born Amid a Two-Family Uproar Thrives". New York Post.
  4. ^ Steinbock, Bonnie (Spring–Summer 1988). "Surrogate Motherhood as Prenatal Adoption". Law, Medicine & Health Care. 16 (1–2): 44–50. doi:10.1111/j.1748-720X.1988.tb01049.x. PMID 3205040. S2CID 38689494.
  5. ^ photo, first page of plates following p92 of Whitehead‘s book,1st ed HC St Martin’s Press 1st ed, 1st printing released Mar. 14, 1989.
  6. ^ Peterson, Iver (April 5, 1987). "Baby M's Future". The New York Times. Retrieved March 18, 2019. Last week, in a decision that created law in the legislative vacuum surrounding surrogate motherhood, Judge Harvey R. Sorkow of New Jersey Superior Court awarded custody of one-year-old Baby M to William Stern, the child's natural father, and his wife, Elizabeth. He stripped Mary Beth Whitehead, the surrogate mother, of all parental rights, and ruled that the contract she had signed with the Sterns - and reneged on - was legal.
  7. ^ "Justice for All in the Baby M Case". The New York Times. February 4, 1988. Retrieved March 18, 2019. At a stroke, New Jersey's Supreme Court brought clarity and justice to the Baby M case, which so tormented the nation last spring: Mary Beth Whitehead-Gould retains her rights as a parent. William Stern and his wife retain the right to raise his child. New Jersey acquires a convincing judgment that a 'surrogate parent' contract for money amounts to an illegal bill of sale for a baby.
  8. ^ "In the Case of Baby M". 2007. Archived from the original on 11 April 2008. Retrieved March 18, 2019.
  9. ^ Mehren, Elizabeth. "Feminists Fight Court Ruling in Baby M Decision: Steinem, Friedan, Chesler, French Among Supporters," Los Angeles Times, retrieved from, 15 June 2018.
  10. ^ See also surrogacy:legal issues and surrogacy laws by country:United States
  11. ^ Sherman, Ted. "N.J. gay couple fight for custody of twin 5-year-old girls," The Star-Ledger, retrieved from, 25 December 2011.
  12. ^ Whitehead MB, and L. Schwartz. A Mother's Story: The Truth About the Baby M Case. Publisher: St Martins Press; 1st ed. edition (February 1989) ISBN 0-312-02614-5
  13. ^ Television Academy
  14. ^ Television Academy
  15. ^ Golden Globes
  16. ^ Whitehead MB, and L. Schwartz. A Mother's Story: The Truth About the Baby M Case. Publisher: St Martins Pr; 1st ed. edition (February 1989) ISBN 0-312-02614-5
  17. ^ "Born to be Sold: Martha Rosler Reads the Strange Case of Baby M - Video Data Bank". Archived from the original on 4 March 2016. Retrieved 14 September 2014.
  18. ^ "The Bottle Deposit". Seinfeld Scripts. 2 May 2006. Archived from the original on 15 September 2015. Retrieved 12 November 2015.

Further reading[edit]

  • Chesler, Phyllis. Sacred bond: The legacy of Baby M. (Vintage, 1989)
  • McDonald, Christie. "Changing the Facts of Life: The Case of Baby M." [SubStance (1991): 31–48. in JSTOR
  • Sanger, Carol. "Developing markets in baby-making: in the matter of baby M." Harvard. Journal of Law & Gender 30 (2007): 67+ online
  • Whitehead, Mary Beth, and Loretta Schwartz-Nobel. A mother's story: the truth about the Baby M Case (St. Martin's Press, 1989), Memoir by the mother

External links[edit]