Judge Awards Father Full Custody of Baby M : Surrogate Mother Loses Parental Rights in Landmark Case

A state judge awarded full custody of Baby M to her father Tuesday, stripping the surrogate mother of all legal parental rights in the emotional landmark custody case.

Ruling that the surrogacy contract was “valid and enforceable,” Superior Court Judge Harvey R. Sorkow arranged for the father’s wife immediately to adopt the healthy, blue-eyed, 1-year-old infant in his chambers.

Nationwide Implications

The judge’s decision is the nation’s first on the legality of surrogate parenting contracts and will have implications in state legislatures, courtrooms, churches and bedrooms across the country. Lawyers for the surrogate mother, Mary Beth Whitehead, said they were filing an immediate appeal.

The ruling makes no provision for Whitehead or her parents, who had also asked for visitation rights, ever to see the child again. Sorkow called his 121-page decision “an extraordinary judicial remedy” and took more than three hours to read it to the tense, packed courtroom.

“Parental rights of defendant Mary Beth Whitehead are terminated,” Sorkow said, as a slight gasp went up in the court.

Sorkow awarded “sole custody” of the infant to the father, William Stern, a 41-year-old biochemist from Tenafly, N.J. Stern and his wife, Elizabeth, a 41-year-old pediatrician, had agreed to pay Whitehead $10,000 to be artificially inseminated with Stern’s sperm and bear a child.

Whitehead refused the money after the child was born on March 27, 1986, and later refused to surrender the infant, whom she called Sara and whom the Sterns called Melissa.

The surrogate mother testified that she realized during the baby’s birth that she could not give her up. She later fled with the infant to Florida, and hid the child with relatives for 87 days. The Sterns were granted temporary custody of the infant last August after police found the Whiteheads moving from relative to relative.

Sorkow ordered Stern to pay Whitehead the $10,000 agreed to in the contract, money that had been held in escrow since the contract was signed. He also ordered that the child’s name be changed on the birth certificate from Sara to Melissa.

Criticizes Whitehead

Sorkow had harsh words for Whitehead, a 29-year-old Brick Township high-school dropout and mother of two children by her marriage to Richard Whitehead, a 37-year-old sanitation worker. He said she had selectively omitted information or had lied during her testimony.

“The court is satisfied that Mrs. Whitehead is manipulative, impulsive and exploitive,” Sorkow said. “She is a woman without empathy.”

Sorkow said Whitehead had “an emotional overinvestment in motherhood.” He noted that the Whiteheads have moved at least 12 times, have separated at least once, and that Richard Whitehead has suffered episodic bouts of alcoholism.

“Mrs. Whitehead seems not to have found the time for family therapy sessions while making herself and her children available to the media,” Sorkow added.

By contrast, Sorkow said, “the Sterns have a private, quiet, unremarkable life.” He noted that they both have doctorate degrees, are financially secure, and possess “an ability to make rational decisions in the most trying of circumstances.”

“Melissa needs stability and peace,” Sorkow said.

Display No Expression

The Sterns sat without expression during the hearing, but kept their hands clasped tightly together. When Sorkow announced custody, however, Elizabeth Stern’s eyes reddened and a thin smile crossed her face. Her husband leaned over and whispered to her.

Sorkow summoned the Sterns and their chief lawyer, Gary N. Skoloff, into his chambers after the ruling. He then surprised them by saying he would sign papers so Mrs. Stern could adopt the baby on the spot.

“I still cannot believe what happened,” Elizabeth Stern said later at an emotional news conference. “I was not expecting that at all . . . I thanked him.”

Randolph Wolf, one of Whitehead’s lawyers, said the defense lawyers were “naturally disappointed.” He charged that “surrogate parenting is the ultimate in exploitation of women.”

Whitehead awaited the ruling at her home. She had visited with the baby for two hours earlier in the day, and stopped at a local church to light a devotional candle. She could not be reached after the ruling.

To Avoid Publicity

Stern said at the news conference he and his wife had discussed moving away, but decided against it. He said he hopes “a great big wall will be built” to protect the child from further publicity or any harassment.

Asked how he felt towards Whitehead, Stern paused and then replied: “I wish I were not standing here right now. I wish the things that came out about Mary Beth didn’t come out in court. I wish it had never happened.”

Mrs. Stern said she had “empathy” for the surrogate mother, adding, “Despite all the bad feelings . . . she gave us a beautiful daughter.”

The bitter, three-month, non-jury trial involved testimony from 38 witnesses. The case stirred worldwide debate over surrogate parenting. Opponents said the practice amounts to baby selling and exploits women, while supporters say surrogacy offers childless couples the opportunity to have children.

In his ruling, Sorkow said he supported surrogate parenting. He called it “a viable form of conception, as much as adoption.” Childbirth, he said, should not depend on “luck in the natural lottery.”

Sorkow’s ruling outlined the legal concept of parens patriae, under which the court acts on behalf of a child. He traced the concept in detail from ancient Greece to early English common law. “The court will seek to achieve justice for the child,” Sorkow said.

Lawmakers Must Decide

But Sorkow said he had “defined a new rule of law” in this case because of the absence of either strict legal precedent or any state legislation on surrogate parenting. He said lawmakers ultimately must decide whether or not to allow the politically sensitive and emotionally charged practice.

“Many questions must be answered,” he said. “The answers must come from legislation.”

More than 500 couples nationwide have paid for a surrogate mother in the last decade. No state has yet passed comprehensive legislation to regulate the practice. Bills are pending in 12 state legislatures, including California, New Jersey, New York and Pennsylvania.

Skoloff said the case would have “an extraordinary impact” on other states. “You will see legislation in the next two years in all 50 states,” he said.

The ruling came as a surprise to many observers. The baby’s court appointed attorney and guardian, Lorraine A. Abraham, had recommended to the judge during closing arguments that he withhold Whitehead’s visitation rights but not terminate her parental rights.

“This has been six months of excruciating emotional agony for every person involved in this case, and I’m sure that includes the judge,” Abraham told reporters.

“I think we’re all relieved,” she said, “but it’s not over.”

Elizabeth Mehren reported from Hackensack, N.J., and Bob Drogin from New York.