Baby M will turn 1 year old this month, and Harvey R. Sorkow is scheduled to give her an unprecedented first-birthday present. In the most publicized custody case since the battle over little Gloria Vanderbilt 53 years ago, Sorkow, a New Jersey superior court judge in Hackensack, will decide which of the baby’s parents will take her home. On one side is Mary Beth Whitehead, 29, a local housewife who, after the child’s birth, reneged on her contract as a surrogate mother, refused to give up the baby and fled to Florida. On the other side is William Stern, 41, a biochemist and Baby M’s natural father, who initiated the expensive, two-month trial in an effort to maintain sole custody of the child. Judge Sorkow’s decision will affect not only the future of Baby M, but also—at least until states pass clarifying legislation—the future of surrogate-parenting arrangements, which have already provided babies to ,more than 500 childless U.S. couples.
Neither side contests that in 1985 Whitehead agreed, for a fee of $10,000, payable on completion of the contract, to be artificially inseminated with sperm from Stern, to turn the baby over to him after birth and to give up any future claim to the child. The two sides vehemently disagree over whether such a contract can be legally enforced. “It either is or it ain’t a valid agreement,” says Gary Skoloff, attorney for Stern and his wife, Elizabeth, 41, a pediatrician. “If it is, surrogate mothering in this country will continue. If it is not, there will be no more surrogate parents.” Skoloff sees the latter possibility as a tragedy. Adoption, he points out, can take years, and surrogate parenting has the additional benefit of allowing the would-be father to pass on his genes. Stern, whose parents emigrated to the U.S. from Germany shortly after World War II, says that this second benefit is especially important to him because most of his family was killed during the Holocaust.
In Whitehead’s defense, her lawyers point out that she refused to accept the $10,000 after the child was born and that the surrogate paperwork also included a document, signed by the Sterns, warning that the contract might not be enforceable in court. Whitehead’s lawyers also argue that the contract should be ruled invalid because the agency that arranged the agreement, the Infertility Center of New York, did so despite a psychologist’s report, prepared for the center, that expressed reservations about Whitehead’s ability to give up a child born under a surrogate contract. (Both the Whiteheads and the Sterns have said they knew nothing about such a report until after Baby M was born.) “I’m confident our public policy must allow a woman who chooses to retain custody of her child to have the right to make that choice,” says Harold Cassidy, Whitehead’s attorney. “The issue is whether as a state and as a society we’re going to endorse a practice of taking a child over the mother’s objections and pleas of compassion where there is no showing of abuse or neglect of the child.” Whitehead has said that, if granted custody, she would allow the Sterns visitation rights; Stern testified that he opposes shared custody or visitation rights for Mary Beth.
The judge elected not to decide about the validity of the contract until he had held a hearing to determine the “best interests” of the child. As a result, the battle over Baby M—called Melissa by the Sterns and Sara by the Whiteheads—has come to resemble a common, if vitriolic, custody fight between divorced parents. Skoloff, a veteran divorce and custody attorney, remarked months ago that if the case veered toward “standard custody litigation…oh, would I get into that!”—and he has. During questioning and cross-examination he has shown that Mary Beth’s husband, Richard, 37, a sanitation worker, is a recovering alcoholic; that the couple filed for bankruptcy in 1983; that they were separated for about six months in 1978; that during that period Mary Beth supplemented her income by working as a dancer at a bar owned by her sister; that one of her other two children lived with her parents for a year in 1985; and that Mary Beth, in a dramatic telephone conversation taped by Stern and played in court, appeared to threaten to kill herself and the baby rather than give the child up.
Whitehead’s lawyers have not counterattacked in kind, except to insist that Elizabeth Stern’s decision not to try to become pregnant—she claims a mild case of multiple sclerosis made her fear for her health—had less to do with medical considerations than with a desire not to interrupt her career. As for other criticisms, “We never planned to sling mud and we wouldn’t,” says Cassidy. “When this case is over the Whiteheads are going to know that they tried the case with dignity.”
Outside the sedate, 57-seat oval courtroom, Whitehead sometimes plays to the gallery. She has allowed herself to be photographed holding a baby who wore a sign saying, “Not For Sale.” At another point in the trial Whitehead supporters gathered around an empty crib outside the courthouse to read a letter from Mary Beth’s 11-year-old daughter, Tuesday, to Baby M, who, for now, is in custody of the Sterns. “We were meant to be together,” the letter said. “Your crib is in my room. I like it there. It keeps me going. It has all your toys and memories.” Whitehead’s critics call such actions manipulative; her supporters say they are the desperate acts of a loving mother who will do anything to keep her child. Says Phyllis Silverman, a psychiatric social worker who testified on Mary Beth’s behalf: “She’s grieving, bereft, pushed to the wall and her coping mechanisms are very taxed. [She’s being] crucified for caring too much about her child.”
Whitehead’s lawyer is also quick to note that the revelations about her life may be moot. If the judge rules that the contract cannot be enforced, Cassidy says the only way for Stern to gain sole custody is for him to prove that she is an unfit mother. Skoloff has never argued that Mary Beth is an unfit mother; he has claimed only that the Sterns can provide a better home environment than the Whiteheads. The fact that the Sterns are upper middle-class and well-to-do, while the Whiteheads are working class and financially troubled, has raised discomforting questions about how courts, and society in general, determine the “best interests” of a child. As the New York Times lamented in a pro-White-head editorial, “often, failing proven physical or emotional abuse, we’re talking money and class when we talk about a child’s ‘best interests.’ ”
A decision is not due until later this month, but the consensus among reporters and “Baby M junkies” who have sat through the trial is that Judge Sorkow is sympathetic to the Sterns and will grant them sole custody. Mary Beth doesn’t disagree. “I know I won’t be getting Sara back at the end of this trial,” she told a reporter last month. “The cards have been stacked against me in the court. But I believe I will get my daughter when I appeal to a higher court. I really believe that.”
That such appeals may take years underscores the principal lesson of the Baby M case: Until states enact laws clarifying the legal status of surrogate parents, everyone involved in such a transaction risks litigation and heartache. At least 25 states are considering such legislation, which may turn out to be Baby M’s most important legacy. Says Nadine Taub, a Rutgers University law professor who has been following the Baby M case: “No matter how it comes out, it’s going to be bad. The important thing is that it doesn’t happen again.”
Bitter Battles Over Kids in the Middle
Baby M isn’t the only child caught up in a legal or bureaucratic quagmire. Herewith, four perplexing cases
A clash of cultures
Dan and Pat Carter were devastated eight years ago when they learned they were unable to have children. “Being Mormon,” explains Dan, 35, a plumber, “we were raised to think that having a family was the most important thing in life.” They were elated, therefore, when in 1980 they were able to begin adoption proceedings for a 3-year-old Navaho boy, Jeremiah Holloway, whose mother, unmarried and unemployed, had decided he would be better off with another family. The child, renamed Michael by the Carters, has been living in their Spanish Fork, Utah home ever since.
Five years ago, the Navaho tribe challenged the adoption by invoking the Indian Child Welfare Act of 1978, which gives the tribal council the ultimate right to decide the fate of Navaho children. Studies had shown that as a result of social and economic problems, 25 to 35 percent of all Indian children were being separated from their families through foster care or adoption and, like Michael, placed mostly in white homes. The tribe, in an attempt to stem that exodus, wanted Michael returned to the reservation.
“We have to make sure that Indians have the civil rights to grow up as Indians,” argues Craig Dorsay, the Portland, Ore. attorney representing the tribe. He says Michael’s mother is able to care for her son. The Carters, incredulous that the boy, now 9, could be taken from them after so many years, fear Michael will be ostracized if sent back to a society he is no longer a part of and a mother he does not remember. “Governments should forget about culture and heritage and law,” says Dan, “and think about the child above everything else.”
The Carters lost an important legal round last December when the Utah Supreme Court upheld the Act. Their case—the first of a handful of similar disputes—will go before the Navaho tribal court in April. In the meantime, Michael has come to his own defense. “I do not want to go back to the reservation,” he wrote in a plea to the Governor of Utah last December. “I don’t know anybody…. I don’t even know the language they use. Please help me.”
A daughter disappears
At first Anthony Prisco thought there was just “some sort of mix-up” when he showed up for his weekly visit with daughter Lauren and found no one home. That was in August 1983. It would take two and a half months and the help of a private investigator before the 33-year-old South Philadelphian learned the fate of his 3-year-old daughter and the ex-wife who had been given custody of her. The former Mrs. Prisco, he was told, had married a confessed mobster-turned-government informant and, along with her new husband and the child, had entered a witness protection program and moved to a different city under a new identity.
When Prisco demanded access to his daughter, federal officials agreed to a cloak-and-dagger visitation arrangement. At a federal marshal’s office in Philadelphia he was searched, then escorted to the airport where he was put aboard the first of two plane flights under two different aliases. At his final destination he was taken to a hotel where, under constant watch, he and his daughter were reunited. All conversations between the two were monitored, and marshals even accompanied the pair on a ride at an amusement park lest Prisco try to learn the girl’s new name or address.
Prisco went through the ritual twice, then stopped because he felt the process harmed the relationship more than it helped. “Emotionally, it’s devastating,” he says. “She sees me in strange places with all these strange people who are carrying guns. We’re talking about a little child, not someone who can understand this kind of situation. I’m the one who’s made to look like a criminal.”
Although he has filed suit in a Philadelphia Common Pleas Court for custody of his daughter, Prisco’s case is still in a pool awaiting the assignment of a judge. He has no knowledge of his daughter’s current whereabouts. “When I meet people and they ask me if I have any children, I don’t know how to answer,” he says. “How can I even begin to explain my situation to strangers when I barely understand it myself?”
More than an ocean stands between Harald Johnstad, 45, and ex-wife Brit Wallem, 43. Six years of bitter infighting, the conflicting laws of two nations and a pair of abductions has made for a sea of trouble as well. In 1978 the Norwegian nationals and their two children moved to Batavia, Ill., where Johnstad, a physicist, joined the Fermi National Accelerator Laboratory. Two years later, Johnstad’s wife returned to Norway, filed for divorce and custody of the couple’s son, Tore, then 4, and daughter Elizabeth, 10. Although a Norwegian appellate court eventually awarded the son to Wallem and the daughter to Johnstad, the latter managed to spirit both children out of the country on the day the court’s ruling was issued.
With no international treaties governing child-custody cases, Wallem could only return to the U.S. and take up her battle in the Illinois courts. Or so it seemed. With help from a private investigator, she managed to take Tore from his bed one night while he and his sister were staying with her under a part-time custody arrangement, and to flee the country before Illinois police could stop her.
Johnstad, who has custody of his daughter, has been battling in Norwegian courts for visitation rights with his son, whom he hasn’t seen in five years. “I work, and I do this case. I don’t have much more. It’s a sad life,” he says, noting that he’s now $50,000 in debt. Despite the continuing legal maneuvers, he doesn’t expect to be able to visit his son until Tore turns 12 two years from now. That is the age, under Norwegian law, at which children can make their own wishes known to the court.
The littlest homeless
Allison—a pseudonym—was unwed and addicted to crack when she discovered she was pregnant last spring. She wanted the baby, but she also wanted her highs. Her son tested positive at birth for exposure to drugs and was held at New York City’s Lincoln Hospital after his mother went home.
Four months later Allison’s baby, though perfectly healthy, still lives at Lincoln, waiting for his mother to complete a drug rehabilitation program. He is one of a growing number of New York City’s “boarder babies,” children who languish for weeks or months in hospitals while waiting for their futures to be decided. Many eventually will live with relatives; some will be reunited with their parents; others await the approval of foster parents, a process that can take six months. Meanwhile the babies remain in hospital wards, receiving efficient care but little in the way of love and cuddling.
An estimated 300 such infants now crowd city and private hospitals, up from 30 listed by the city last April. Hospital officials blame the growing population of these children on a sharp increase in the use of cocaine and crack. Says one: “We have had an astonishing increase in the number of babies with cocaine in their urine.”
To ease the boarder babies’ plight, Mayor Edward Koch has called for speedier foster parent licensing and an end to rules that require racial matching of foster parents and children. Hospital staffers are trying to make nurseries more cheerful and are encouraging neighborhood volunteers to come in and play with the children. “We have one child who hadn’t smiled since she’d been here,” says Sister Mary Caulfield, who heads a volunteer program at Lincoln Hospital. “There was no response when you held her—it was just like holding a little vegetable. But once she started getting cuddled and loved by the volunteers, the real response began.”
Still, for children so young, as for anyone, there’s no place like a home.