American Contract Law for a Global Age, 2017a

no stated public policy on surrogacy. There is no reason
why this court should not order specific performance.
Specific performance is a discretionary remedy. It
should only be exercised in accordance with principles of
equity. In each case the evaluation of the equities must
be left to the judgment and good conscience of the trial
court. Stehr v. Sawyer, 40 N.J. 352 (1963). This means
that the court must adjudge and weigh whether the
parties’ conduct was fair and reasonable. Will the relief
The judgment, contained in the
numbered item list at this point,
is the substantive final result of
the trial court’s reasoning stated
up until this point. A final
judgment is often the first point
at which a trial court’s decision
may be appealed to a higher
court based on specific alleged
errors.
afforded by the remedy be unreasonable? If specific performance is ordered, the result
will be just what the parties bargained for and the contract contemplated. Mr. Stern
wanted progeny, a child. Mrs. Whitehead wanted to give the child she would bear to
a childless couple. His sperm fertilized her egg. A child was born. Until the child was
placed in his home he never knew the stress and bliss, the responsibilities and
rewards of a child. The Whiteheads have two children. They did not want any more.
Theirs was the perfect family, Mr. Whitehead testified. The Whiteheads agreed that
Mr. Whitehead should get a vasectomy to prevent further conception. It is suggested
that Mrs. Whitehead wanted a baby, now that she is older than when her first two
children were born, to experience and fulfill herself again as a woman. She found the
opportunity in a newspaper advertisement. She received her fulfillment. Mr. Stern
did not.
At this point the court would enter its order for specific performance, but an
additional inquiry is necessary. Since we here deal with a human life of only one year,
since we treat with, as the guardian ad litem has said “the most precious and unique
thing on this earth, a small vulnerable and lovable child,” inquiry must be made to
determine if the result of such an order for specific performance would be in the child’s
best interest. This court holds that whether there will be specific performance of this
surrogacy contract depends on whether doing so is in the child’s best interest. . . .
[The court extensively reviews the evidence and concludes that the child’s best
interest is to be with the Sterns.]
This court enters judgment in favor of plaintiffs as follows:
(1) The surrogate parenting agreement of February 6, 1985, will be specifically
enforced.
(2) The prior order of the court giving temporary custody to Mr. Stern is
herewith made permanent. Prior orders of visitation are vacated.
(3) The parental rights of defendant Mary Beth Whitehead are terminated.
(4) Mr. Stern is formally adjudged the father of Melissa Stern.
(5) The New Jersey Department of Health, Bureau of Vital Statistics and its
ancillary and/or subordinate state or county agencies are directed to amend all
records of birth to reflect the paternity and name of the child to be Melissa Stern.
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26 CHAPTER I: INTRODUCTION TO CONTRACT LAW