American Contract Law for a Global Age, 2017a

Subsequent to entering into the surrogate parenting agreement of February 6,
1985, Mrs. Whitehead was inseminated with the seminal fluid of Mr. Stern nine
times. Finally, in July 1985 she conceived
[The court recounts at great length what became a tortuous story
sensationalized in the nation’s tabloids. Baby “M” was born on March 27, 1986. Both
before and after the birth, Mrs. Whitehead began to regret her decision. After the
birth, she and her husband took the child and fled with their family to Florida, later
defying a New Jersey court order. Baby “M” ultimately was taken into custody by
Florida authorities on July 31, and returned to New Jersey for the litigation.]
A total of 38 witnesses testified at this trial, 23 fact witnesses and 15 experts.
[The court extensively summarizes the expert testimony, most of which went
to the suitability of the parties as parents and the best interest of the child.]
This court is confronted with circumstances in
which on February 6, 1985, the parties to this litigation,
with great joy and expectation, entered into a surrogate
arrangement. It was an arrangement where both—the
prospective family and the surrogate mother—wanted
the child; albeit, for different purposes. Even though the
insemination is artificial, the parental attitude is real.
Roger Rosenblatt, The Baby in the Factory, TIME (February 14, 1983). The couple
sought to bring into existence a child by conscious pre-arrangement which, as far as
biologically possible, would be genetically their own. The surrogate consciously chose
to bear a child for another couple with the understanding that she would not contest
but would consent to their adoption of it.
Concerns have been expressed about the efficacy of surrogate arrangements.
They are: (1) that the child will not be protected; (2) the potential for exploitation of
the surrogate mother; (3) the alleged denigration of human dignity by recognizing
any agreement in which a child is produced for money; (4) surrogacy is invalid
because it is contrary to adoption statutes and other child benefit laws such as
statutes establishing standards for termination of
parental rights; (5) it will undermine traditional notions
of family; and (6) surrogacy allows an elite economic
group to use a poorer group of people to achieve their
purposes.
It is argued that the child will not be protected.
So long as there is no legislation and some court action
in surrogacy arrangements is required, the child born of
surrogacy will be protected in New Jersey. If there is
compliance with the contract terms, adoption will be
necessary; hence, court inquiry about best interests
must take place. If there is non-compliance with the
contract, as in this case, best interests is still litigated
Expert witnesses differ from fact
witnesses in that they do not
necessarily have personal
knowledge of facts. Instead,
their testimony consists of
opinion on technical matters to
aid the court.
Pay attention to the policy
concerns articulated in this
paragraph and set out in more
detail in the paragraphs
following. Although these
concerns are specific to the case
at hand, they are also
representative of broader
concerns about contract
enforceability we will deal with
in this course. At this point, the
court has slipped into analysis
leading to its legal conclusions.
You will observe several such
conclusions along the way.
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20 CHAPTER I: INTRODUCTION TO CONTRACT LAW