Mary Beth Whitehead looked pale and shaken. Minutes before, New Jersey Family Court Judge Harvey Sorkow had denied her request to regain temporary custody of her five-month-old daughter. Surrounded by reporters and cameramen in the courthouse lobby in Hackensack last week, she told them in a trembling voice, "I have three children, and two of them cannot see their sister. I don't think that's fair."
The father, William Stern, was all smiles. He happily accepted the court decision to leave the infant in his care at least until November, and promised to abide by the order to allow Whitehead to visit the baby twice a week. Fatherhood, he had learned, was a wonderful experience. "I am the father," Stern declared, "and I want my daughter back."
Stern and Whitehead are not a divorced couple arguing over custody; they hardly know each other. Their daughter, "Baby M.," is at the center of a fierce and highly publicized dispute over surrogate birth that began when Whitehead decided to keep the child she had agreed to carry for Stern. The case has touched off widespread debate: Is the womb a rentable space? Should the use of a surrogate mother be a legitimate option for couples who cannot have children? Or is it an odious trade in babies? While the Baby M. case is not the first surrogate-parent dispute to end up in the courts, Judge Sorkow's eventual ruling is expected to set a precedent governing the enforceability of such contracts.
Whitehead, 30, a New Jersey housewife, volunteered her services to the Infertility Center of New York last year because, she said, she wanted to help a childless couple. After psychological testing and legal counseling, she agreed to be artificially inseminated by William Stern, 40, whose wife Elizabeth, a 40-year-old pediatrician, says she cannot have children. In return, the Sterns promised to pay Whitehead $10,000 and the same amount to the center, as well as to cover about $5,000 in other expenses.
After the child was born in late March, Whitehead began to have misgivings about handing over the girl she named Sara Elizabeth and the Sterns named Melissa Elizabeth. She refused the agreed-upon payment from the Sterns, so the money was put in an escrow account. A few days later the Sterns agreed to let Whitehead keep the baby for a short time. When the child was not returned after several weeks, the tug-of-war began.
In May, to elude police who came to her house to retrieve the baby, Whitehead passed the infant out a back window to her husband Richard, who spirited the child to Florida. After a three-month search by police, the FBI and private detectives, the Whiteheads were located, and the baby was returned to the Sterns. Baby M. will stay with them at least until Judge Sorkow resolves the dispute.
Sorkow must decide whether the case involves a contract or child custody. If he invalidates the contract -- possibly on the ground that paying to adopt a child is illegal in New Jersey as well as 23 other states -- the Baby M. case becomes a "simple" custody battle. Though model laws are being developed by several groups, including the American Bar Association, no state has passed legislation to regulate surrogate parenting. Says Lori Andrews of the American Bar Foundation: "We have Model T laws catching up with space- age technology."