Background Details
Mary Beth Whitehead responded to an ad placed by the Infertility Center of New York in the Asbury Park Press seeking women willing to help infertile couples have children. She was a high school drop-out who had married a waste collector, with whom she had two children Ryan and Tuesday.
Elizabeth "Betsy" Stern was not technically infertile, but had multiple sclerosis and was concerned about the potential health implications of pregnancy, including temporary paralysis.
William "Bill" Stern and Mary Beth Whitehead entered into a "surrogacy contract," according to which Mary Beth would be inseminated with Bill's sperm, bring the pregnancy to term, and relinquish her parental rights in favor of Bill's wife, Betsy. The Sterns reportedly based their choice simply by looking at her picture.
(According to later terminology, Mary Beth would be considered a traditional surrogate, as opposed to a gestational surrogate, because she was the genetic mother of the child. At the time, the technology for gestational surrogacy was not yet in common use).
On March 27, 1986, Mary Beth gave birth to a daughter, whom she named Sara Elizabeth Whitehead. However, within 24 hours of transferring physical custody to the Sterns, Mary Beth went to them and demanded that the baby to be given back to her, allegedly threatening suicide. Mary Beth subsequently refused to return the baby to the Sterns and left New Jersey, taking the infant with her. The Sterns had the Whitehead family's bank accounts frozen and sought warrants for their arrest.
In 1987, New Jersey Superior Court Judge Harvey R. Sorkow formally validated the surrogacy contract and awarded custody of Baby M to the Sterns under a "best interest of the child analysis".
On February 3, 1988, however, the Supreme Court of New Jersey, led by Chief Justice Robert Wilentz, invalidated surrogacy contracts as against public policy but in dicta affirmed the trial court's use of a "best interest of the child" analysis and remanded the case to family court. On remand, the lower court awarded the Sterns custody and Whitehead was given visitation rights.
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