Master New Jersey's high court invalidated a paid surrogacy contract as against public policy but awarded custody to the biological father under the best-interests standard. with this comprehensive case brief.
In re Baby M is the seminal American case on traditional surrogacy. Decided by the New Jersey Supreme Court in 1988, it confronted, for the first time at a state supreme court level, a privately negotiated surrogacy agreement in which a woman agreed to be artificially inseminated with the intended father's sperm, carry the child to birth, and then surrender the child in exchange for money and a promise to terminate her parental rights so the father's wife could adopt. The case forced courts and legislatures to reckon with how far private ordering and contract law may structure the creation of legal parenthood when that private ordering conflicts with adoption statutes, the rights of birth parents, and the best interests of children.
The court's resolution drew a bright line between contract and family law: while parties may attempt to arrange their family lives by agreement, they cannot, by contract, terminate parental rights or commodify newborns in ways that contravene statutory safeguards. Yet the court also made clear that voiding an unlawful surrogacy contract does not predetermine custody; between two legal parents, custody turns on the child's best interests. Baby M therefore anchors modern discussions of surrogacy, adoption, and reproductive technology, and it spurred a wave of legislative reforms—some embracing regulated gestational surrogacy, others restricting or prohibiting paid arrangements.
In re Baby M, 109 N.J. 396, 537 A.2d 1227 (N.J. 1988)
William and Elizabeth Stern, a New Jersey couple, entered into a written agreement in 1985 with Mary Beth Whitehead (married to Richard Whitehead) pursuant to which Whitehead agreed to be artificially inseminated with William Stern's sperm, to carry the pregnancy to term, and, upon birth, to surrender the child to William so that Elizabeth could adopt. The agreement, brokered by a surrogacy agency, provided for a $10,000 payment to Whitehead, contingent on her relinquishing the child and her parental rights, plus certain medical expenses. Whitehead became pregnant and gave birth in March 1986 to a child the Sterns called Melissa and the Whiteheads called Sara. Although Whitehead initially delivered the infant to the Sterns shortly after birth, she quickly changed her mind, reclaimed the baby, and fled to Florida with her family. After interstate proceedings, the child was recovered and placed with the Sterns pending trial. The New Jersey trial court upheld the surrogacy agreement, terminated Whitehead's parental rights, and awarded permanent custody to William Stern with the expectation that Elizabeth would adopt. Whitehead appealed. The New Jersey Supreme Court granted review to determine the validity and enforceability of the surrogacy contract and to resolve issues of custody and adoption.
Are paid traditional surrogacy contracts that require a birth mother to surrender her child and terminate her parental rights enforceable under New Jersey law, and, if not, how should custody be determined between the child's two legal parents?
Private agreements cannot terminate or transfer parental rights in contravention of New Jersey's adoption and parentage statutes. Consideration paid to a birth parent in connection with the surrender of a child or consent to adoption is prohibited as against public policy. A mother's pre-birth or immediate post-birth consent to surrender a child is not binding absent statutory compliance with safeguards designed to ensure voluntariness and judicial oversight. When custody is contested between two legal parents, courts apply the best-interests-of-the-child standard without presumption in favor of either parent and without enforcing unlawful contractual terms.
The surrogacy contract was void and unenforceable as against New Jersey statutes and public policy; the termination of Mary Beth Whitehead's parental rights and the adoption by Elizabeth Stern were reversed. Applying the best-interests standard, the Court nevertheless awarded custody to the biological father, William Stern, and recognized Whitehead's status as the child's legal mother with visitation rights.
The Court found multiple, irreconcilable conflicts between the surrogacy contract and New Jersey law. First, the agreement conditioned a $10,000 payment on the surrender of the child and termination of the mother's parental rights, conduct that New Jersey's adoption statutes prohibit because they forbid the exchange of money for the placement of a child or for a parent's consent to adoption. Such payments, the Court emphasized, risk turning children into commodities and undermine statutory procedures designed to ensure that adoption decisions are voluntary, informed, and subject to judicial review. Second, the contract attempted to accomplish, by private ordering, what the law reserves to the courts and agencies under detailed statutory standards—namely, the termination of parental rights and the creation of adoptive relationships. The statutory scheme carefully regulates when and how a birth parent may surrender rights (typically only after birth and with procedural protections), and it demands a judicial determination that termination or adoption serves the child's welfare. A pre-birth promise to relinquish a newborn is inherently suspect because a mother cannot meaningfully assess her decision before experiencing childbirth and forming a bond with the child. Enforcing such a promise would effectively compel specific performance of maternal surrender, a remedy the law does not permit. Third, the Court rejected the trial court's conclusion that Whitehead was unfit. While acknowledging troubling conduct during the post-birth dispute, the Court held that unfitness, abandonment, or other statutory grounds for termination had not been proven by the requisite standards. With both William Stern and Mary Beth Whitehead remaining legal parents, the custody question had to be resolved under the best-interests-of-the-child standard. Based on the record—which reflected the child's then-current placement, the stability and parenting resources available in the Stern household, and expert testimony—the Court concluded that the child's best interests were served by awarding custody to the father while preserving the mother's parental status through visitation. The result respected the statutory scheme (by voiding the unlawful contract and reversing the adoption) and the child's welfare (by making a forward-looking custody determination). Finally, the Court noted that broader policy choices about surrogacy's permissibility and regulation were for the Legislature, not the judiciary.
Baby M is the foundational case distinguishing family-law limits on private ordering from contract enforcement in the surrogacy context. It teaches that paid traditional surrogacy agreements are unenforceable where they contravene adoption statutes and public policy, and that parental rights cannot be signed away by contract. At the same time, it clarifies that custody between two legal parents turns on the child's best interests, not on enforcing an invalid agreement. The decision catalyzed legislative responses nationwide, including statutes that later authorize and regulate gestational (non-genetic) surrogacy while continuing to bar baby-selling and pre-birth surrenders.
No. The Court invalidated the paid traditional surrogacy contract before it and held that payments tied to surrender or consent to adoption violate New Jersey law. It also made clear that a pre-birth agreement to terminate parental rights is unenforceable. The Court left broader policy questions to the Legislature, signaling that different, properly regulated arrangements (e.g., without impermissible payments and with statutory safeguards) might be treated differently.
In traditional surrogacy, the surrogate is inseminated with the intended father's sperm and is the child's genetic and birth mother. In gestational surrogacy, the carrier has no genetic tie to the child; she carries an embryo created from the intended parents' or donors' gametes. Baby M involved traditional surrogacy, which directly implicated the surrogate's parental rights. Many jurisdictions later adopted statutes that regulate or permit gestational surrogacy subject to strict safeguards, distinguishing it from the traditional model considered in Baby M.
Voidness of the contract eliminated any contractual basis to terminate the mother's rights or compel surrender, but it did not resolve custody between two legal parents. The Court applied the standard family-law test—the best interests of the child—and, on that record, found the child's welfare was better served by awarding custody to the biological father while preserving the mother's status and visitation.
The Court held that consideration paid to a birth mother in exchange for surrender of a child or consent to adoption is unlawful. Reimbursement of reasonable pregnancy-related expenses under proper statutory procedures is distinct from a fee contingent on surrender and consent. After Baby M, New Jersey—and many other states—revisited their laws; for example, New Jersey later enacted a statute allowing enforceable gestational carrier agreements under strict conditions, while still prohibiting baby-selling.
Not via the surrogacy contract. The Court reversed the termination of the birth mother's parental rights and, consequently, the adoption could not proceed. Any future adoption would require compliance with adoption statutes, including valid termination or surrender of the birth mother's rights under proper legal standards and court approval, not a private contract.
In re Baby M set the template for analyzing surrogacy disputes by reaffirming that family law's statutory protections and the child's best interests cannot be displaced by private agreements. The decision invalidated payment-driven traditional surrogacy contracts and rejected attempts to privatize the termination of parental rights, thereby guarding against the commodification of children and protecting vulnerable decision points surrounding birth.
At the same time, the case recognized that custody determinations are prospective and child-centered. Even as the Court voided the agreement and restored the birth mother's legal status, it awarded custody to the biological father after a best-interests analysis. The dual messages of Baby M—limits on contract in matters of parentage and primacy of the child's welfare—continue to guide courts and inform legislatures regulating modern assisted reproduction.
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