New York is one of a handful of states that bans surrogate pregnancies, thanks to a nasty 1980s court battle that pitted a baby's biological father against the surrogate who decided she wanted to keep that baby after all.
In a New York Times article on Thursday, gay male couples who wanted children in the Empire State bemoaned the fact that they couldn't hire women to bear their children in their home state. New York's unusual 1992 law barring commercial surrogacy contracts is a legacy of the so-called "Baby M" case, The Times notes.
The "Baby M" drama actually took place in New Jersey, and that state's highest court ultimately ruled in 1988 that paying women to bear children was illegal and "potentially degrading to women." While the case was in the Garden State, New Yorkers became obsessed with it, too. It eventually helped spur the Empire State to ban paid surrogacy altogether.
The case centered around a surrogate named Mary Beth Whitehead, who agreed to bear a child for a biochemist named William Stern and his wife, a pediatrician named Elizabeth. Elizabeth had a mild form of multiple sclerosis and worried that a pregnancy could paralyze her, the Times previously reported.
Whitehead agreed to a $10,000 payment and was artificially inseminated with William Stern's sperm. (Whitehead's own egg was used.) Whitehead changed her mind and refused to sign away her parental rights. A drawn-out and emotional custody fight ensued.
William Stern testified in January 1987 that Whitehead had seemed like a "perfect" surrogate. But a week after the child's birth, Whitehead went to the couple's house "sobbing openly" and saying she wanted the baby back, according to the biological father's testimony.
"Everything had gone wrong," Stern said, according to The Times.
While New Jersey's Supreme Court ultimately ruled that the surrogacy contract was illegal and restored the parental rights of Whitehead, the court granted custody to Stern.
''I'm really happy,'' Whitehead told The New York Times after the state high court's ruling. ''It's one step, and that's all I asked for. I just love the Supreme Court.''
As the legal parent, Whitehead was allowed to seek visitation with the child — a privilege the Sterns tried to revoke.
''She hates my guts,'' Stern reportedly said, at a tense visitation hearing after the New Jersey Supreme Court's ruling. "The one thing I've learned is I can't trust Mary Beth. Mary Beth lies.''
These days, surrogacy agreements are probably less emotionally fraught than they were in the 1980s. That's mainly because most people seeking surrogates — often infertile couples and gay men — will take an egg from one woman, fertilize it, and implant it in another woman. While the surrogate might get attached to the baby she's carrying, that child is not biologically hers.
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