The Baby M story rocked America in 1986. Mary Beth Whitehead, a traditional surrogate mother for Bill and Betsy Stern, changed her mind and decided she wanted to keep her biological daughter at birth. This case, which eventually made it to the New Jersey Supreme Court, raised many surrogacy issues and caused public outcry against surrogacy.
So what really happened in this case? The most important thing to understand about the Baby M case is that it should never have happened.
Mary Beth Whitehead should never have become a traditional surrogate mother; Noel Keane of the Infertility Center should never have approved Mary Beth to become a traditional surrogate; and Bill and Betsy Stern should never have chosen her as their surrogate mother.
But, as often is the case, many mistakes are made by many people, and a situation turns ugly and gets out of control.
In the end, the best – and really, the only- decision was made for Baby M, but the pain and suffering two families went through to get there was not a road anyone should have to take.
What Happened in the Baby M Case
In 1984, Mary Beth Whitehead answered an ad in the newspaper looking for women willing to help infertile couples have children. Mary Beth was a stay at home mom of two, and she absolutely lived for her children. Her life was keeping her home immaculate, fixing grand dinners, and taking care of her husband’s and children’s every need.
She had dropped out of high school, gotten married at age sixteen, and rarely had a job outside of the home. She did work briefly as a go-go dancer in a family member’s bar at one point, when she and her husband were temporarily separated and she needed income to support her children. She did not strip or dance nude.
During this time in the early 80’s, several breakthroughs were made in modern infertility medicine and surrogacy. The first test tube baby, Louise Joy Brown, had just been born in 1978. The first paid traditional surrogate mother, Elizabeth Kane, had given birth in 1980.
The country was buzzing with new hopes in the futures of those who were unable to have their own children. When Mary Beth answered the advertisement from Noel Keane’s Infertility Center, she went in with an open heart and some personal association with infertility; her sister was having trouble conceiving.
Mary Beth, being helpful by nature, decided that she would love to help another couple birth their child.
The Baby M case was a traditional surrogacy. This means that Mary Beth donated her own eggs, and the baby born was her biological child. Looking back, Mary Beth Whitehead says that she was confused when she started surrogacy, claiming that she thought that the baby would be the biological child of Bill and Betsy Stern.
How could this be? Is it realistic to assume that Mary Beth was that confused and uninformed? That this confusion was one of the main surrogacy issues surrounding the case of Baby M?
Well, actually, it might not be that much of a stretch. Think about this: its the early 80’s. The media is talking about surrogacy and test tube babies. There is no internet, no huge support community, and Mary Beth has never met another surrogate mother. She does not have a strong education, and she is being told by the Infertility Center that she will be helping to birth “another couple’s baby”.
And then there is the Infertility Center themselves. They gave Mary Beth a psychological evaluation long before she was chosen by the Sterns to be Baby M’s biological mother.
The results? The clinic’s psychologist, Joan Einwohner, stated that she felt Mary Beth would have “strong feelings about giving up the baby” and that she should be counseled further before proceeding. The Infertility Center, however, approved her immediately as a surrogate mother.
Bill and Betsy Stern had decided to use a traditional surrogate mother because Betsy was concerned about becoming pregnant. She was a pediatrician and had had a scare 15 years prior that made her believe she might have multiple sclerosis. She had not been diagnosed with MS.
Afraid that becoming pregnant might risk her life, they decided it would be better if she did not become pregnant. (At the trial, it was demonstrated that even if Mrs. Stern had the form of MS she was self-diagnosing, she would have had no additional risks in becoming pregnant on her own. )
The Sterns chose Mary Beth based on her photograph. They met her briefly before signing contracts and beginning artificial insemination, and if they did look further into her file and discovered that she might have issues with giving up her baby, they ignored it.
Baby M was born on March 27, 1986. Mary Beth instantly bonded with her, and realized that she could not give her to the Sterns. She named her Sara Elizabeth Whitehead, and her husband, Rick Whitehead was listed on her birth certificate as her father.
(In the United States, when a woman who is married gives birth to a child, her husband immediately becomes the legal father of the child regardless of if it is suspected that he is not the biological father. Surrogate arrangements are no different.)
Mary Beth was supposed to receive payment of $10,000 for the birth of a healthy baby, which she did not take. She felt that she could not forgive herself if her biological daughter grew up with the knowledge that her mother had sold her. Mary Beth was keeping the baby.
There were a few emotional confrontations between Mary Beth and the Sterns in the days and weeks that followed, and then something unexpected happened. The Sterns managed to get Judge Harvey Sorkow to issues an ex parte order, which is an order signed without notice to or representation by Mary Beth, to seize Baby M from her custody.
This sort of order really didn’t make sense in this, a custody, situation. These types of orders are usually reserved for situations where a child is in immediate and life-threatening danger.
The order, which was later found to be illegal by the New Jersey Supreme Court, was carried out on the evening of May 6, 1986. The police unexpectedly showed up, with the Sterns, at the Whitehead’s door, demanding “Melissa Elizabeth Stern”.
Mary Beth and Rick produced Sara’s birth certificate, and in the temporary confusion experienced by the police, Mary Beth managed to pass Baby M to Rick, who smuggled her away from the house.
Mary Beth and Rick then went on the run with Baby M. Their other two children were in the care of Mary Beth’s parents.
During this time, the judge had their bank accounts frozen. Rick lost his job due to desertion.
Mary Beth and Rick were desperately trying to obtain a lawyer. They could not find one. After four months, they finally secured one, putting $5,000 equity from their home down as a retainer.
As the Whiteheads were returning to face this legal battle, Mary Beth became extremely ill. She was rushed to the hospital and placed in intensive care, diagnosed with a severe kidney infection called toxic encephalopathy with pyelonephritis. She nearly died.
While she was in the hospital, the Sterns found and retrieved Baby M. She never lived with Mary Beth Whitehead again. What followed was a two year legal battle. Tried in Judge Harvey Sorkow’s court, Mary Beth was persecuted and treated like an abusive mother. They dragged her through the mud, claimed she was unstable, and said she couldn’t care for the baby.
They referenced her “incorrect” methods of playing patty-cake with Baby M as grounds for termination of parental rights. (Instead of clapping and repeating “patty-cake” when Baby M clapped, Mary Beth said, “hooray!” Apparently that made her a bad mother.)
They claimed she was unstable and selfish and had a personality disorder because she dyed her hair every month. The court proceeding was a mockery.
During her time on the run, Mary Beth Whitehead confronted Bill Stern on the phone, and asked him to stop it all. When he refused, in a moment of desperation she threatened him, claiming she would tell the court that he had sexually abused her older daughter (a lie) or that maybe she would just kill herself and Baby M and end the situation altogether.
Bill Stern had secretly tape recorded their phone call. This did not help her case.
At the end of Judge Harvey Sorkow’s circus act, he awarded full custody to the Sterns, terminated completely the parental rights of Mary Beth Whitehead, and performed an immediate adoption ceremony for Betsy Stern. Unsurprisingly, Mary Beth appealed the decision, and the case was brought to the New Jersey Supreme Court.
The entire decision was overturned, but because Baby M had now been with the Sterns for well over a year, they received custody of her, while Mary Beth received visitation. In the end, though the road was long, this was the only possible solution to this horrible series of events.
Who Was to Blame in the Baby M Case
The Baby M case happened more than 20 years ago, back when commercial surrogacy and surrogate mothers were still very new and the bugs had definitely not been worked out yet. As a modern outsider, it’s easy to point the finger at one or both of the parties involved, but without walking a mile in either Mary Beth Whitehead or Bill or Betsy Stern’s shoes we can’t blame any of them. They were all in some ways at fault and were all in some ways victims.
Mary Beth Whitehead
At the end of the day, the fact remains that Mary Beth signed a contract and breeched that contract. It was wrong of her to enter into a surrogacy agreement without understanding it completely, it was wrong of her to decide to keep the baby, and it was wrong of her to run from the law.
To her credit, she never accepted the payment for her surrogacy. The Baby M case was never about extortion or money (though the Sterns did offer her more to make it all go away).
Rick Whitehead, her husband
Rick Whitehead had a drinking problem, which was used to discredit him during the trial. But all-in-all, he was a pretty good guy. He stood by Mary Beth in her desire to keep a child that was not his biologically. He helped her run from the law, and supported her in every way.
Their marriage, however, did not survive the trial. They divorced while the Baby M case went to the New Jersey Supreme Court. Mary Beth met another man, and after their divorce was finalized, she married Dean Gould. Amazingly, Rick Whitehead continued to support her, and they remained close.
Bill and Betsy Stern
It is questionable as to whether the Sterns really needed a surrogate mother in the first place. But, irregardless, Baby M was Bill’s biological daughter. They did everything in their power to make Mary Beth the villain in this situation, in desperation over keeping their baby, much in the same way Mary Beth ran and threatened Bill. These people sacrificed so much for their daughter, and must have felt so scared and frustrated throughout this entire experience.
The biggest thing the Sterns did wrong was not doing their research properly on Mary Beth before proceeding. The fact that they were either unaware of or ignored the psychological evaluation done on her was their downfall.
Noel Keane of the Infertility Center
If one person could be blamed for the disastrous Baby M case, and one person only, I would have to go with Noel Kearne of the Infertility Center. In the days when most “baby brokers” would reject many potential surrogate mothers as unqualified, Noel Kearne accepted the majority (85-90% of applicants). Noel Kearne’s agency had a history of cases of surrogacy gone wrong:
- Surrogate mother Judy Stiver of Lansing, Michigan, sued him for impregnating her with the semen of a man who carried a herpes-related virus. She delivered a baby with a damaged brain because of it, which she was forced to keep.
- Surrogate mother Patty Nowakowski, of Michigan, gave birth to twins. The intended parents decided that they only wanted the girl, and left Patty with their baby boy. Patty eventually got custody of both children, not something she had ever intended to do, but something she felt she needed to do based on the coldness of the people raising her biological daughter.
- There were cases of surrogate mothers finding out after pregnant that their intended mother was actually a man, rumors of coercion regarding surrogacy applicants, and more.
Despite these cases, the fact of the matter is, Noel Kearne approved Mary Beth Whitehead as a surrogate mother when she did not pass a psychological evaluation. He was told she would have a difficult time giving up the baby, and he did not care.
Judge Harvey Sorkow
For some reason, Judge Harvey Sorkow (he’s the one who dubbed the case “Baby M”, by the way) was out to get Mary Beth Whitehead. It seemed as though his sole purpose in life was to punish her. He ordered the unprecedented ex parte order, he cut of her parental rights, and performed an on-the-spot adoption for Betsy Stern.
Why such venom? It is unclear why Judge Sorkow did the things he did, but it is clear that he simply complicated and prolonged the situation.
What We Can Learn from Baby M Case
Surrogacy in 1986 is nothing like it is today. In the 80’s, most surrogate mothers were traditional surrogate mothers. They were compensated $10,000 but only at birth, and only if they delivered a healthy, live child.
If the child was stillborn they would receive $1,000 compensation. If the child was born with a health or mental problem, they would receive no compensation and would have to keep the baby.
There was limited screening back then of either the surrogate mother or the intended parents, causing many surrogacy issues. There were no laws or regulations in the entire country. Intended parents and traditional surrogate mothers didn’t get to know one another; they met maybe once and signed contracts.
The women who became traditional surrogates were often taken advantage of, and were unprepared for the emotions surrounding delivery; both delivery of the baby to the world and delivery of the baby to her new parents.
No support systems existed for surrogacy issues, and there were few people in the nation to talk to. It was a brand new world, and a lot of mistakes were made industry wide.
The Baby M case caused New Jersey as well as Michigan to pass laws banning commercial surrogacy. It was thought at the time that all states would adopt such laws and surrogacy would be illegal in the United States. Luckily, that did not happen.
Now we do not “sell” babies. A gestational or traditional surrogate mother is not compensated for delivering a live child. She is compensated for being pregnant, regardless of the outcome of that pregnancy.
Now the baby is the legal child of the intended parents usually before she is born, regardless of her health or mental state. And most importantly, now we take the time to get to know one another better before jumping into the life-changing process that is surrogacy.
We don’t pick a surrogate mother or intended parents by a photo and say “they look nice”. We take our time to get it right.
Baby M, Melissa Elizabeth Stern, is all grown up now. I wonder what she thinks of the surrogacy issues and circumstances surrounding her birth, and if she feels the right decisions were made. At the end of the day, she’s the only person who ever mattered, and she had an awful lot of people who truly loved her.
What do you think of this famous case?
