This past Saturday, Judge Birger M. Sween, the judge in the infamous “Baby M” case died at age 86. As many will recall, the Baby M case in New Jersey was the first surrogacy dispute case that captured the nation’s attention and resulted in many of the laws that are still on the books today regarding the practice.
In 1986, Mary Beth Whitehead gave birth to Melissa Stern—a child she contracted to carry for William and Elizabeth Stern. Melissa was the biological child of William and Mary Beth. After giving birth, Mary Beth Whitehead refused to surrender the child. The rest, as they say, is history.
This surrogacy tug-of-war eventually ended up in Judge Sween’s court where he ruled to grant Whitehead visitation privileges with Melissa and also ruled that she could speak out about her experience as a surrogate. In reflecting on his passing, his daughter commented that Judge Sween “had strong feelings about the rights of mothers” and “he felt that children were more important than contracts.”
Thirty years later it’s remarkable to survey the surrogacy landscape in the United States where the rights of surrogate mothers are completely downplayed and any recognition of the importance of maternal child bonding is cast aside. While the legacy of the Baby M case is a mixed one, it reminds us that at heart of surrogacy is a child who is created that suffers undue legal, psychological, health, and emotional turmoil in a system that does very little to protect his or her interests.
When the Baby M case reached New Jersey’s Supreme Court, Chief Justice Robert Wilentz, in his unanimous opinion, wrote:
There are, in a civilized society, some things that money cannot buy. In America, we decided long ago that merely because conduct purchased by money was “voluntary” did not mean that it was good or beyond regulation and prohibition . . . There are, in short, values that society deems more important than granting to wealth whatever it can buy, be it labor, love, or life.
Given our current state of affairs, one has to wonder just how civilized we are today, as we’ve turned reproduction into a commercial market that can’t be criticized without backlash.