Brief Baby M 1987, NJ Facts: Mr. and Mrs. Kern could not have kids. They looked into a surrogate mother agency that set up couples. The Kerns met and entered into a contractual agreement with Mrs. Whitehead . The Surrogacy contract was an agreement that the Mrs. Whitehead would be inseminated with Mr. Kerns semen and would carry the baby for the term of the pregnancy upon which she would give up her parental rights to the Kerns for Mrs. Kerns to adopt the child with Mr. Kerns as the father, thereby severing all ties with Mrs. Whitehead’s parental rights. For her services as a host, the Kerns would pay her 10,000$ and pay 7,500$ to the surrogacy service. Mrs. Whitehead was asked and signed her parental rights away in the surrogacy contract prior to giving birth to her child. After the delivery, Mrs. Whitehead gave the baby over to the Kerns, only to later go tp drastic measures to regain custody of her child. Mrs. Whitehead now contests for the custody and motherly rights of the child. Courts Decision: Court ruled in favor of the Kerns, upholding the surrogacy contract. Rules: NJ law states that termination of parental rights can only be done through and approved organization or DYFS (NJSA 9:2-16) In order for DYFS to terminate parental rights it must prove that, “the child’s health and development have been impaired…parents are unable or unwilling to eliminate harm….considered alternatives….do more harm than good. (p.7) Private Placement Adoption Statute – “intentional abandonment or a very substantial neglect of parental duties with reasonable expectation of a reversal of that conduct in the future.” Sees v. Barber – without proof that no parental obligations had been forsaken,, there would be no termination in a private placement setting. - They also held that in this case where there was a private placement adoption there was no legal barrier to retraction by the birth mother if she wanted the baby back. This is fundamentally different from this case. NJSA 9:2-14 and 9:2-26 [e]xcept as otherwise provided by law or by order or judgment of a court …no surrender of the custody of a child shall be valid in this state unless made to an approved agency pursuant to the provisions of this act… Issues: (1) Does paying for services for birthing a child constitute as “being in connection with and adoption? (2) Can a contract be binding for removing parental rights?
Reasoning: Because the state of NJ requires much stricter guidelines for the dismissal of parental rights and the surrogacy contracts bypasses all those tests, parental rights may not be given away by signing a contract.
Further: There are three ways of giving up parental rights: 1)AN action by an approved agency; 2) an action by DYFS; 3) an action in connection with a private placement. The only way that you can surrender your child voluntarily is to an approved agency or DYFS. Absent form these, strict guidelines must be followed to ensure that the proposed terminating parent is indeed unfit to be a parent. Arguments: The Kerns argue in favor of the Parentage Act that empowers the court to terminate the parental rights solely on the basis of the child’s best interests. (I think that this can only be done in the appellate court because they took away to rights in the trial court.) This argument did not fly because they were not arguing about the capacity of Mrs. Whitehead as a mother; they were discussing the validity of the contract being able to terminate parental rights.
Notes: Read these cases carefully Sometimes courts will say something without it being the real reason for the conclusion in the case. It violates the judges understanding or adoptive This case is about parental rights not about adoption. Discern what facts are critical and what facts are not to the conclusion or the issue of the case. The power of civ pro is very strong. It was a case about the enforcement of the case. Bad lawyering made this a case about money for adoption as opposed to who should retain custody of the child. One of the key things to this case is Paternalism. Contracts have to abide by the public policy of the state. Should society constantly police unfairness of contracts. Backdrop is the ability to make the agreements that we want to make or the freedom to enter into a binding agreement with another person. There are some contracts that are to administravily burdensome.
Utilitarianism says that there is a social utility when you make a promise and you must keep because of someone (i.e. police, courts) backing it up. This case is important for paternalism because it is dealing with societies best interest or saying that you cannot do something. Transaction over times. Contracts can be understood as transactions over time. In the early part it is whether there was a legimtae contract. In the later part it will be was it enforced or was it breeched. **Is there an enforceable contract? Is the promise the type that courts are willing to enforce? Did the parties both ascend to enforcement? Or was their consent on both sides? Are the specific procedural irregularities? When there is an enforceable contract, what obligation authorities do eth arties have. What did they agree to. What happens in the case of a breech.