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Solomon Would Weep: A Comment on In the Matter of Baby M and the Limits of Judicial Authority

Published online by Cambridge University Press:  28 April 2021

Randall P. Bezanson
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Extract

In commenting on the New Jersey Supreme Court's decision in the Baby M case, I will focus on the result of the court's decision and what it implies about the limits of judicial power, not on the court's opinion. The reason is that, excepting the court's basic premises, I can find little in the opinion to criticize. My difficulty, instead, is with the premises from which the court approached the case, and what they imply about the capacity of courts to construct legal doctrine on the basis of largely, if not wholly, unexplored social and cultural values. The result reached in the Baby M caw-that Mr. Stem is Baby M's legal father and Ms. Whitehead her legal mother—is, in my judgment, surely the worst result possible. That it was indisputably the logical, reasoned, and straight forward result of existing legal concepts of parenthood, adoption, baby-selling, and the like, as the New Jersey court so well opined, is hardly reassuring.

Type
Case Review Essay
Information
Law, Medicine and Healthcare , Volume 16 , Issue 1-2 , Spring 1988 , pp. 126 - 130
Copyright
Copyright © American Society of Law, Medicine and Ethics 1988

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References

See supra, note 2.Google Scholar
I am using the term “biologically” in a loose sense, but I intend by it to indicate that both Ms. A, a generic parent, and Ms. B, who carried the child in her womb and provided it sustenance, protection, and much more, are physically related to the child in dear and unbreakable ways.Google Scholar
See Olmstead v. United States, 277 U.S. 438, 478 (Brandeis, J., dissenting); Thornburgh v. American College of Obstetricians & Gynecologists, 106 S. Ct. 2169, 2187 (Stevens, J., concurring); Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973).Google Scholar
Uniform Parentage Act sec. 4, 9A Unif. Laws Ann. 587 (1979). The presumption of paternity under the Uniform Act is strong and difficult to overcome. See id., comment to sec. 4; sec. 6–7.Google Scholar
Indeed, in cases of assisted reproduction, the paternity of a husband who is known not to be the genetic father is conclusive if he consented to paternity at the time of an insemination. Uniform Parentage Act, sec. 5, 9A Uniform Laws Ann. 587 (1979).Google Scholar
See Foster, Henry, A “Bill of Rights” for Children (Springfield, Ill.: Thomas, 1974); Fredericksen, Hazel Mulligan, R.A., The Child and His Welfare (San Francisco: Freeman, 1972).Google Scholar
See Griswold v. Connecticut, 381 U.S. 479 (1965); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Roe v. Wade, 410 U.S. 113 (1973); Village of Belle Terre v. Boraas, 416 U.S. 1 (1974).Google Scholar
See cases cited supra, note 10.Google Scholar
See, e.g., Matter of Conroy, 98 N.J. 321, 486 A.2d 1209 (1986); Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973).Google Scholar