The Children of Baby M.

• Author: J. Herbie DiFonzo & Ruth C. Stern
• Position: Senior Associate Dean for Academic Affairs and Professor of Law, Hofstra University Law School - J.D., M.S.W., independent researcher and writer
• Pages: 345-411

THE CHILDREN OF BABY M.

J. HERBIE DIFONZO & RUTH C. STERN*

I. INTRODUCTION

If ―all new technology creates a lacuna in social thought,‖ legal

thought is even less adept at navigating novelty‘s pitfalls.1 Because the

law is not in the habit of anticipating social and technological changes, it

approaches them with caution and skepticism. Courts proceed by carving

out easements in the unfamiliar terrain. Eventually, the law evolves a set

of principles for analyzing and accommodating new scientific and social

practices. Often, by the time this occurs, society has embraced, rejected, or

become inured to the innovation and moved on to the next one.2

We have come to expect that technology will outpace the law‘s ability

to comprehend it and regulate it. This lag time is not necessarily harmful;

it allows new trends to take root in the culture, to reveal how they operate,

and to expose their benefits and limitations, as well as areas needing

further study. As Elizabeth Scott noted, the making of law and policy in a

climate of controversy and ―intense political pressure will seldom promote

society‘s long-term interests.‖3 At the same time, an awareness of

innovation and its influence on cultural norms is what keeps the judicial

and legislative processes relevant and vital. We do not ask courts to

sanction every new idea that comes along; we ask only that when novel

Copyright © 2011, J. Herbie DiFonzo & Ruth C. Stern.

* J. Herbie DiFonzo, Senior Associate Dean for Academic Affairs and Professor of

Law, Ho fstra University Law School, lawjhd@hofstra.edu; Ruth C. Stern, J.D., M.S.W.,

independent researcher and writer, branwell226@msn.com. We thank Patricia Kasting for

her skill in locating every source we n eeded, and we thank Joanna Grossman for the id ea

that it is high time that Baby M. be reconsidered. An e mbryonic version of this article was

presented at the Sixth Annual Wells Conference on Adoption Law, Capital University, in

March 2010.

1 Bernard E. Rollin, Telos, Value, and Genetic Engineering, in IS HUMAN NATURE

OBSOLETE? GENETICS, BIOENGINEERING, AND THE FUTURE O F THE HUMAN CONDITION 317,

335 (Harold W. Baillie & Timothy K. Casey eds., 2005).

2 See Elizabeth Scott, Surrogacy and the Politics of Commodification, 72 LAW &

CONTEMP. PROBS. 109, 110–11 (2009) (showing that this has occurred with surrogacy

arrangements because both politicians and the judiciary realized that these arrangements are

here to stay).

3 Id. at 145.

346 CAPITAL UNIVERSITY LAW REVIEW [39:345

issues do arise, they not take refuge in unproven assumptions and outdated

precedent.

Twenty-one years—the span of a near generation—separate the New

Jersey court cases of In re Baby M.,4 decided by the state‘s supreme court

in 1988, and A.G.R. v. D.R.H. and S.H.,5 a trial court decision from 2009.

Both cases roundly repudiated surrogacy contracts as void and

unenforceable.6 In Baby M., William Stern contracted with a surrogate,

Mary Beth Whitehead, to be artificially inseminated with his sperm and to

bear a child for him and his wife Elizabeth.7 Whitehead further agreed to

surrender the child to the Sterns for adoption.8 Finding it impossible to

comply with the contract, Whitehead suffered an emotional crisis and

absconded with the baby, Melissa, returning her to the Sterns only by court

order and after arrest.9 The New Jersey Supreme Court reversed the trial

court‘s validation of the contract and authorization of Melissa‘s adoption

by the Sterns.10 In doing so, the supreme court not only declared the

contract invalid but also pronounced it evil:

It guarantees the separation of a child from its mother; it

looks to adoption, regardless of suitability; it totally

ignores the child; it takes the child from the mother

regardless of her wishes and her maternal fitness; and it

does all of this, it accomplishes all of its goals, through the

use of money.11

Numerous amici curiae joined in support of Whitehead, several

prominent feminists among them.12 Confronting a divisive issue and a

relatively uncommon reproductive practice, Baby M. was very much a

creature of its time.13 The decision deplored the commodification of

children, the treatment of women‘s bodies as ―childbearing factories,‖14

4 537 A.2d 1227 (N.J. 1988).

5 No. FD -09-1838-07 (N.J. Super. Ct. Ch. Div. Dec. 23, 2009), available at http://

graphics8.nytimes.com/packages/pdf/national/20091231_SURROGATE.pdf.

6 Baby M., 537 A.2d at 1234; A.G.R., No. FD-09-1838-07, at *5–6.

7 Baby M., 537 A.2d at 1235.

8 Id.

9 Id. at 1236–37.

10 Id. at 1234.

11 Id. at 1250.

12 Scott, supra note 2, at 116.

13 Id. at 109.

14 Id. at 112.

2011] THE CHILDREN OF BABY M. 347

and the way in which surrogacy ―degraded the mother-child relationship by

paying women not to bond with their children.‖15

The later case, A.G.R. v. D.R.H. and S.H., concerned a gay male

couple, Donald and Sean Hollingsworth, who legally married in California

and registered their domestic partnership in New Jersey.16 The surrogate,

Angelia Robinson (Donald‘s sister), agreed to carry eggs from an

anonymous donor that were fertilized by Sean‘s sperm.17 After giving

birth to twins, Robinson claimed entitlement to the status of parent.18 In

voiding the surrogacy contract and granting parental status to Robinson,

the court relied almost exclusively on Baby M.19 The fact that Robinson,

unlike Whitehead, was genetically unrelated to the twins was, for the court,

―a distinction without a difference significant enough to take the instant

matter out of Baby M.‖20

The court in A.G.R. appeared oblivious to the revolution in

reproductive demographics that had occurred since Baby M.21 Many of

these changes were tied to the rise of a thriving industry in assisted

reproductive technology (ART).22 During the last decade of the twentieth

century, the number of gay and lesbian families more than tripled.23 The

birth rate increased for women aged 35 and over, doubled for women aged

40–44, and tripled for women aged 44–49.24 The number of children born

to women aged 50–54 rose from 117 in 1997 to 417 in 2005.25

15 Id.

16 A.G.R. v. D.R.H. & S.H., No. FD-09-1838-07, at *2 (N.J. Super. Ct. Ch. Div. Dec. 23,

2009).

17 Id.

18 Id. at 1–2.

19 Id. at 5–6.

20 Id. at 5.

21 See Janet L. Dolgin, An Emerging Consensus: Reproductive Technology and the Law,

23 VT. L. REV. 225, 225 (1998) (―The advent and swift expansion of reproductive

technology beginning in the late 1970s accelerated the transformation of the family by

undermining sacred assumptions about the reproductive process.‖).

22 See Crystal Phend, Rapid Incr ease Seen in Assisted Reproduction, MEDPAGE TODAY

(May 28, 2009), http://www.medpagetoday.com/OBGYN/Infertility/14405 (reportin g a

25.6% jump in the number of ART cycles performed worldwide from 2000 to 2002).

23 DAVID M. SMITH & GARY J. GATES, HUMAN RIGHTS CAMPAIGN, GAY AND LESBIAN

FAMILIES IN THE UNITED STATES: SAME-SEX UNMARRIED PARTNER HOUSEHOLDS 1 (2001),

available a t http://www.urban.org/UploadedPDF/1000491_gl_partner_households.pdf.

24 Joyce A. Martin et al., Births: Final Data for 2005, NATIONAL VITAL STATISTICS

REPORTS, Dec. 5, 2007, at 8, availa ble at http://www.cdc.gov/nchs/data/nvsr/nvsr56/

nvsr56_06.pdf.

25 Id.