American family law, prior to the 1980s, prohibited the sale or transfer of parental rights and provided no legal framework for paid surrogacy agreements to avoid the appearance of “baby-selling.” This was in response to past abuse in the Tennessee Children’s Home Society in the 1920s, where children were illegally taken from poor families and sold to wealthy adoptive parents. Courts focused on the child’s best interests, but this framework could not address the complexities of surrogacy arrangements.
In re Baby M:
How the Surrogacy Access Revolution Prompted Reaction and Reform in Family Law
Revolution in Reproduction
"She treated children like commodities and made them marketable. She commercialized adoption. And the other thing is, she was the first to issue false birth certificates for adopted children, a practice that became standard throughout the United States. She didn't do it to protect the children, though. She did it to cover her tracks so no one would know that the children had been stolen."
- Barbara Bisantz Raymond, Author, 25 September 2007, Author Spent 16 Years Delving Into The Power Georgia Tann Wielded and The Victims She Left
"While the subject of "brave new world" reproductive techniques has certainly captured the media's attention and aroused public awareness, state legislators have been slow to respond to the recommendation of legal and medical practitioners in this field to produce the type of comprehensive legislation which will eliminate the legal limbo in which the participants in the new reproductive technologies have been mired."
- Shereen Taylor, Author, Spring 1987, NYLS Journal of Human Rights
As IVF rose, regulation became increasingly difficult, 30 January 1987, The Age
Revolutionary reproductive technologies began reshaping family formation in the late 1970s, particularly after the first successful In-Vitro Fertilization (IVF) birth in 1978. IVF, where an egg is fertilized outside of the body, expanded reproductive possibilities beyond traditional biological methods. After IVF became widely available in the United States, new reproductive possibilities emerged beyond traditional biological conception. Surrogacy, in which a woman carries a child for intended parents who plan to raise it, became a viable option within these technological changes. However, existing adoption and custody laws were not designed to regulate these emerging contract-based reproductive arrangements.
By the late 1970s and early 1980s, early surrogacy arrangements began to emerge, but they were legally unstable and largely unenforceable under traditional family law principles.
By the late 1970s and early 1980s, early surrogacy arrangements began to emerge, but they were legally unstable and largely unenforceable under traditional family law principles.
"I had always believed that we were in this world to help other people. I thought that this was something I could do to improve the lives of an infertile couple and at the same time help my own family economically."
- Mary Beth Whitehead, Biological Mother to Baby M, 1 February 1989, A Mother's Story
Surrogate mother wanted ad, 24 March 1984, Asbury Park Press
The four people involved in the Baby M case, 1 April 1987, The Palm Beach Post
In 1984, Mary Beth Whitehead entered into a paid surrogacy agreement with Bill and Elizabeth Stern after responding to a newspaper advertisement. The arrangement assumed she would relinquish the child after birth, but existing law provided no clear framework for enforcing such a contract, setting the stage for legal conflict over whether reproduction could be governed by private agreement.