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In the end, the New Jersey Supreme Court ruled, in 1988, that the surrogacy contract was invalid because it violated the state’s public policy.
The Old Testament tells of Abraham, whose wife’s handmaid bore a child for him. This situation involved what we would today call “traditional surrogacy,” where one woman conceives a child with her own egg and carries that child with the intent that someone else will raise it.With such an approach, the state legislature provides some certainty that parties will be held to their bargain, but only if they comply with rules designed to minimize the harm and risks that surrogacy may pose.As other states moved toward a more permissive approach to surrogacy, however, New Jersey stuck to its guns.Ruling in favor of Mary Beth Whitehead, the New Jersey Supreme Court concluded broadly that surrogacy contracts are “illegal and unenforceable.” The court saw danger for everyone involved if the contracts were to be upheld: The long-term effects of surrogacy contracts are not known, but feared—the impact on the child who learns her life was bought, that she is the offspring of someone who gave birth to her only to obtain money; the impact on the natural mother as the full weight of her isolation is felt along with the full reality of the sale of her body and her child; the impact on the natural father and adoptive mother once they realize the consequences of their conduct.
was the subject of tremendous, and contentious, public debate.As law professor Carol Sanger observed, the case “provoked philosophical debate, political organizing, and legislative action as ethicists, feminists, theologians, lawmakers, and local men and women weighed in on surrogacy’s moral, legal, and practical significance.”The legal parents of Baby M, the court ruled, were her biological mother—the surrogate—and her biological father—the intended father.The intended mother was a legal stranger to Baby M.From that starting point, states have staked out positions across a broad legal spectrum. Some, like New York, not only refuse to enforce surrogacy contracts, but criminalize the behavior.