Babies for sale - New Birth Technologies call for rethinking the definition of family and individual

Public Interest, Spring, 1993 by Robin Fox

Skolof's next tactic was to present a picture of the Sterns as an upright, middle-class, well-educated professional couple who could give an excellent home to to the baby (including trips to Bloomingdale's), as against the working-class, impoverished, unreliable Whiteheads who could not. In particular, the calm, serious, and capable Mrs. Stern (pediatrician), was to be contrasted with the whimsical, manipulative, dishonest, overprotective, and undereducated Mrs. Whitehead (ex-GoGo dancer). Harold Cassidy, the Whitehead's pro bono lawyer, refused to meet Skolof on his own terms. He would not indulge in "expert" mud-slinging against the Sterns; instead, he tried to build up a good picture of Mrs. Whitehead as a wife, mother, and neighbor, with his experts doing their best to counter the accusations of the Sterns' (and the guardian's) highly paid witnesses. The result of this mismatch was a foregone conclusion, and it is to that result we must now turn.

Parens patriae super

Judge Harvey Sorkow rendered his judgment on March 31, 1987, after a three month trial of unprecedented media attention and world-wide publicity. He set the tone from the start:

The primary issue to be determined by this litigation is what are the best interests of a child until now called "Baby M." All other concerns raised by counsel constitute commentary.

This attitude was to determine the whole judgment. Most of the legal issues discussed at length earlier were dismissed by Judge Sorkow as "non-issues." As Skolof had wanted, the trial became a custody battle and the judgment a custody judgment. There can be no equitable justice for the adult parties in the case, said the judge, and in any case it wasn't his place to find it. "The court will seek to achieve justice for the child." It will do this on the basis of the doctrine of parens patriae, roughly, "the country as parent."

One must remember that Sorkow was essentially a family court judge, not a contract lawyer or a constitutional expert. He saw his business therefore as the subordination of any other consideration to the "best interests of the child," this being the traditional matter of family court disputes. His dismissal of contract and constitutional issues as "mere commentary" reflected this stance.

|A~ll should listen again to the plea of the infant as voiced so poignantly by several of the professional witnesses, statements with which this court agrees to such an extent that it will use its total authority if required to accomplish these ends.

Thus dominated by the notion of parens patriae, and clearly of the opinion that the Whiteheads were unsuitable parents while the Sterns were exemplary, he proceeded to validate the contract, terminate Mrs. Whitehead's parental rights, order the adoption by Mrs. Stern of Baby M, and grant sole custody to the Sterns with no rights of visitation for the Whiteheads. Everything was premised on the "best interests of the child." For example, on the issue of "specific performance" the judge ruled: