## Facts

- William Stern and Mary Beth Whitehead entered a 1985 agreement under which Whitehead would be inseminated with Stern’s sperm, give birth, surrender the child, and terminate her parental rights so Stern’s wife, Elizabeth Stern, could adopt.
- The agreement conditioned a $10,000 payment to Whitehead on the child’s birth and delivery to Stern; additional fees were paid to the facilitating entity.
- Whitehead’s husband, Richard Whitehead, signed to rebut any presumption of his paternity.
- After the child’s birth in March 1986, Whitehead initially turned the child over to the Sterns but immediately sought the child’s return and then refused to give the child back.
- Whitehead fled with the child to Florida; law enforcement returned the child to the Sterns pursuant to New Jersey orders.

## Issues

1. Whether a paid “traditional surrogacy” contract requiring the birth mother to surrender the child and terminate parental rights is valid and enforceable under New Jersey adoption and child-welfare law and public policy.
2. Whether termination of the birth mother’s parental rights and an adoption order may be granted based solely on such a contract, absent statutory grounds.
3. How custody should be determined when the surrogacy contract is invalid, including whether the child’s best interests warrant custody with the genetic father.
4. What visitation, if any, should be afforded to the birth mother whose parental status is restored.

## Decision

- The Supreme Court of New Jersey affirmed in part, reversed in part, and remanded.
- The surrogacy contract was held invalid and unenforceable because it conflicted with statutes restricting payments connected to adoption and with statutory requirements governing termination of parental rights and adoption.
- The termination of Whitehead’s parental rights and the order permitting Elizabeth Stern to adopt were reversed because they rested on the invalid contract and lacked statutory support.
- Custody was awarded to William Stern based on the child’s best interests, while Whitehead’s legal status as the child’s mother was restored.
- The case was remanded for the trial court to determine appropriate visitation for Whitehead due to an inadequate record on that issue.

## Legal Principles

- Agreements that condition payment on a child’s delivery and a parent’s surrender of rights are unenforceable when they conflict with adoption statutes, limits on compensation, and statutory procedures for termination and adoption.
- Parental rights may not be terminated, and adoption may not be ordered, by private contract; statutory grounds and procedures control.
- Constitutional interests in procreation and family formation do not entitle parties to enforce arrangements that violate state adoption and child-welfare law.
- When a surrogacy agreement is invalid, custody must be decided independently under the child’s best interests, not by enforcing adult expectations created by the contract.
- A legal parent whose rights were improperly terminated remains entitled to consideration of visitation consistent with the child’s welfare.

## Conclusion

The court invalidated a paid traditional surrogacy contract and reversed termination and adoption orders premised on that contract, but nonetheless awarded custody to the genetic father under the best-interests standard while restoring the birth mother’s parental status and remanding to set visitation.


In re Baby M, 109 N.J. 396, 537 A.2d 1227 (N.J. 1988)