Baby M

Mary Beth Whitehead with Melissa Stern

I may have been vaguely aware of this case back in 1985 when it hit the news but it was not really of all that much interest to me at that time, I had not even met the man who is now my husband of 34 years. Mary Beth was both the egg donor and the gestational surrogate, who was artificially inseminated with William Stern’s sperm. She was paid $10,000 to carry the pregnancy to term and she waved her parental rights in exchange. Her did request occasional photos and letters to provide her with updates on the baby. Upon seeing the baby, Mary Beth started having doubts about giving her away. Mary Beth demanded the baby back and wanted to renege on the contract.

Ultimately, the court granted custody to the Sterns and upheld the contract after a chilling conversation between Whitehead and William Stern was revealed in which Mary Beth threatened to physically harm Baby M. Upon hearing this, Whitehead was granted no parental rights. Mary Beth appealed to the New Jersey Supreme Court. The appellate courts decided that it was in Baby M’s best interests to remain with the Sterns. However, they also completely voided the surrogacy contract and restored parental and visitation rights to Whitehead. In terms of paid surrogacy, the New Jersey Supreme Court ruled that it was “illegal, perhaps, criminal and potentially degrading to women.”

This story is back in the news because in 2021, New York’s Child-Parent Security Act (CPSA) went into effect. It is the most robust surrogacy law of its kind in the United States. The law legalized paid surrogacy in New York and also created a number of provisions meant to protect gestational carriers and intended parents (IPs) alike. A Surrogates’ Bill of Rights endows surrogates with a host of protections, including the right to choose their own doctors, consent to all medical procedures, and the right to health and life insurance all paid by the IPs. And the CPSA requires that New York’s Department of Health monitor and license surrogacy agencies — which act as middlemen screening candidates, matching IPs with surrogates, and facilitating compensation — something no other state in the US does. It also allows for nonbiological parents to be listed on a baby’s birth certificate in the hospital. The CPSA requires that a surrogate in New York state be at least 21 and a citizen or permanent resident of the United States, and she cannot use her own egg for the pregnancy. Under the CPSA, surrogates have the right to make all decisions regarding their bodies, including whether or not to terminate a pregnancy

Surrogacy is a polarizing issue. On the left are feminist critiques and concerns about commodifying a woman’s body. On the right, it triggers a panic over queer families and reproductive freedom. Some feminists, including Gloria Steinem who wrote in an open letter to former governor Andrew Cuomo, worry that women would be even more vulnerable to exploitation, trafficking, and further subordinated as second-class citizens in the United States for the sake of making a sale.

There is more to this story in these links – [1] LINK> The Cut, a story about three women who have carried pregnancies after the New York legalized paid surrogacy law passed last year and [2] LINK> Family Source Consultants, The First Contested Surrogacy Case: The Story of Baby M.

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