American Contract Law for a Global Age, 2017a

The sixth and final argument suggests that an elite upper economic group of
people will use the lower economic group of woman to “make their babies.” This
argument is insensitive and offensive to the intense drive to procreate naturally and
when that is impossible, to use what lawful means are possible to gain a child. This
intense desire to propagate the species is fundamental. It is within the soul of all men
and women regardless of economic status.
During the course of the testimony offered by the principals to this writing, the
court was told on several occasions that a writing was executed by them. Indeed, that
writing was marked into evidence. The court was further told by the parties that they
all understood their obligations under the contract. Specifically, it was understood by
all that Mr. Stern’s sperm would be used to artificially inseminate Mrs. Whitehead.
Upon conception, Mrs. Whitehead would carry the child and when she gave birth, she
would then surrender the infant to the biological father and his wife. Mrs. Whitehead
would also voluntarily renounce her parental rights to permit Mrs. Stern to adopt the
infant. Mrs. Stern, it must be noted, is not a party to the contract. This was to avoid
any possible inference that there is a violation of N.J. STAT. ANN. § 9:3-54 (which
prohibits giving a consideration to obtain an adoptable child). Mr. Whitehead signed
a certification pursuant to Id. § 9:17-44 establishing his non-paternity. Mr. Stern
agreed to pay Mrs. Whitehead $10,000 for conceiving and bearing his child.
Fundamentally, when there were no time constraints, when Mrs. Whitehead
was not pregnant, when each party had the opportunity to obtain advice (legal,
medical and/or psychological), the parties expressed their respective offers and
acceptances to each other and reduced their understanding to a writing. If the mutual
promises were not sufficient to establish a valid consideration, then certainly there
was consideration when there was conception. The male gave his sperm; the female
gave her egg in their pre-planned effort to create a child—thus, thus, a contract.
For the past year, there has been a child in being. She is alive and well. She is
tangible proof of that which the Whiteheads and Mr. Stern in concert agreed to do.
The child was conceived with a mutual understanding by the parties of her future
life. Except now, Mrs. Whitehead has failed to perform one of her last promises, which
was to surrender the child and renounce parental rights. She has otherwise
performed the personal service that she had undertaken—conception and carrying
the child to term. The terms of the contract have been executed but for the surrender.
A person who has promised is entitled to rely on the concomitant promise of
the other promisor. This court holds therefore that in New Jersey, although the
surrogacy contract is signed, the surrogate may nevertheless renounce and terminate
the contract until the time of conception. She may be subject then for such monetary
damages as may be proven. Specific performance to compel the promised conception,
gestation, and birth shall not be available to the male promisor. However, once
conception has occurred the parties’ rights are fixed, the terms of the contract are
firm and performance will be anticipated with the joy that only a newborn can bring.
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22 CHAPTER I: INTRODUCTION TO CONTRACT LAW