American Contract Law for a Global Age, 2017a

purpose—and we have no doubt whatsoever that the money is being paid to obtain
an adoption and not, as the Sterns argue, for the personal services of Mary Beth
Whitehead—is illegal and perhaps criminal. N.J. Stat. Ann. § 9:3-54. 4 In addition to
the inducement of money, there is the coercion of contract: the natural mother's
irrevocable agreement, prior to birth, even prior to conception, to surrender the child
to the adoptive couple. Such an agreement is totally unenforceable in private
placement adoption.
Integral to these invalid provisions of the surrogacy contract is the related
agreement, equally invalid, on the part of the natural mother to cooperate with, and
not to contest, proceedings to terminate her parental rights, as well as her contractual
concession, in aid of the adoption, that the child's best interests would be served by
awarding custody to the natural father and his wife—all of this before she has even
conceived, and, in some cases, before she has the slightest idea of what the natural
father and adoptive mother are like.
The surrogacy contract conflicts with: (1) laws prohibiting the use of money in
connection with adoptions; (2) laws requiring proof of parental unfitness or
abandonment before termination of parental rights is ordered or an adoption is
granted; and (3) laws that make surrender of custody and consent to adoption
revocable in private placement adoptions.
(1) Our law prohibits paying or accepting money in connection with any
placement of a child for adoption. Violation is a high misdemeanor. Excepted are fees
of an approved agency (which must be a non-profit entity) and certain expenses in
connection with childbirth.
Considerable care was taken in this case to structure the surrogacy
arrangement so as not to violate this prohibition. The arrangement was structured
as follows: the adopting parent, Mrs. Stern, was not a party to the surrogacy contract;
the money paid to Mrs. Whitehead was stated to be for her services—not for the
4
[By the court] N.J. STAT. ANN. § 9:3-54 reads as follows:
a. No person, firm, partnership, corporation, association or agency shall make,
offer to make or assist or participate in any placement for adoption and in connection
therewith
(1) Pay, give or agree to give any money or any valuable consideration,
or assume or discharge any financial obligation; or
(2) Take, receive, accept or agree to accept any money or any valuable
consideration.
b. The prohibition of subsection a. shall not apply to the fees or services of any
approved agency in connection with a placement for adoption, nor shall such
prohibition apply to the payment or reimbursement of medical, hospital or other
similar expenses incurred in connection with the birth or any illness of the child, or to
the acceptance of such reimbursement by a parent of the child.
c. Any person, firm, partnership, corporation, association or agency violating
this section shall be guilty of a high misdemeanor.
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UNIT 2: THINKING LIKE A CONTRACT LITIGATOR 29