Baby M (1988)

Those who remember the 80s almost have to remember Baby M.  Granted, there were a lot of babies to get through.  There was Baby Jessica, who fell down a well and was there for what seemed like days while we held our collective breaths.  There was poor tragic Baby Faye who was given no chance to live upon birth and was implanted with the heart of a baboon, which unfortunately still did not save her.

There were others, but Baby M is understandably the most famous because of what she represented.  The Baby M case actually led to court rulings on parental surrogacy.  A fascinating story with a great many twists and turns, it is juicy fodder for a miniseries and this one is literally “ripped from the headlines.”  The  case was only being settled in 1988, when Baby M was just two years old.

As a miniseries, “Baby M” does not exactly fit neatly into any of our big three categories of romance, miniseries or history, at least not at the time it first aired.  In hindsight, of course it’s historical, but at the time it was capitalization on a gigantic news story, one that went on and on, though at the time no one knew just how historic the court decisions regarding the case would be.

There are only two ways to do something like this circa 1988, as trash (Betty Broderick) or as documentary.  Luckily, “Baby M” plays it fair and turns out to be a very sensitive retelling of a heart wrenching and difficult story.  Granted, not all of the true life people handled the situation sensitively, which gives the miniseries its sweeping emotional moments (none as cheap as Betty Broderick, mind you), but it’s true to the story and very fair.  And naturally, what beats a courtroom showdown on TV?

In 1979, a brief scene at a doctor’s office shows that something is wrong physically with Elizabeth Stern (Robin Strasser), given support by her loyal husband Bill (John Shea).

Three years later, Marybeth Whitehead (JoBeth Williams) is watching TV and hears about surrogacy for the first time.

In 1983, Bill’s mother dies, leaving him the last person in his family.  “I never wanted to be the end of my family.  I wanted to be the beginning,” he says to his wife.  “I wish I could give you one,” she replies.  Both of them want children.  “We’ll find a way to have a family,” she promises.  At the same time, Marybeth informs her friends that she offered to be a surrogate for some friends, but they decided against it.

By 1984, Marybeth has seen an ad in the paper looking for a surrogate, but her husband Rick (Bruce Weitz) is against Marybeth doing it.  “You’re always going off and doing something for somebody else,” he rather caustically tells her.  The offer comes with $10K, which is attractive, though Rick is worried he won’t get laid for nine months!  Some sweet talk overcomes that hurdle and then Marybeth goes through physical and psychological tests to make sure she’s “surrogate material.”  The psychologist can’t make the final decision, but she tells Marybeth, “let’s just say summer is coming, but I wouldn’t be buying bikinis if I were you.”

Okay, that sounds like a really awful groaner, but it’s important to remember just how casual this whole situation was at the time.  The issue of surrogacy was not a typical occurrence and even the medical profession wasn’t fully prepared.  The psychologist notes in her tape recorder that she has some reservations about Marybeth, who has a tendency to “hide feelings” who could have attachment issues, but recommends her anyway.

Bill and Betsy Stern go to an infertility clinic, agree to all the terms and the fees while Marybeth is having trouble getting pregnant for another couple, as it’s been over a decade since her last pregnancy.  The Sterns review every file the clinic has over the course of three months and pick three candidates.  None turn out to be right, but coincidentally, Marybeth’s application has just arrived as the couple she was helping had a low sperm count.

In January 1985, the Sterns and the Whiteheads finally meet for dinner in New Jersey.  The initial meeting is up and down.  Marybeth is thrilled to hear that Betsy is a Pediatrician, but disappointed to know that after only a few weeks of maternity leave, she would be going back to work.  “If you think we’re going to come knocking at your doorstep after that baby is born, you can stop worrying,” Marybeth blithely says after asking the Sterns what they would tell the child about his or her history, where they note at age 18, they would allow the child to know the full story.  “All I’d want is a year photograph and a letter, something like that,” Marybeth adds before asking the Sterns, “do you want me?”  They do.

Bill and Marybeth go to the clinic together to donate their sperm and eggs for the first time in February, but it doesn’t take the first time.  Marybeth is so comfortable with the process that she involves her daughter (and her daughter’s Cabbage Patch Kid) and invites the Sterns to be a part of the Whiteheads lives, which everyone does eagerly.  Betsy is a bit uncomfortable with Marybeth’s friskiness and some of the Whitehead family dynamics, but all of that disappears by August when Marybeth finally becomes pregnant.

There are some awkward moments that could have been telling.  For instance, when Marybeth tells the Sterns, “it’s a shame you don’t live closer, maybe I could babysit once in a while,” the color drains from Bill’s face.  Betsy, being a doctor, had certain conditions written into the contract, like an amnio, but Marybeth is not thrilled to be doing it.  Marybeth and her doctor are both annoyed with Betsy’s constant calling to check in.  “Did you ever hear of doctor-patient confidentiality?” Marybeth snaps. “We’re not in court,” Betsy replies, “we’re just two people who want the same thing.”  It gets even worse as Marybeth nears delivery, and her demands are worrisome, such as not allowing Betsy in the delivery room and not handing over the baby in the hospital.  Plus, Rick has delayed signing an affidavit of paternity, which says Bill is the father and this leads to an argument where a drunken Rick and Marybeth are at each other’s throats.

Baby M is born on March 27, 1986.  The hospital does not know about the surrogacy and treat Marybeth and Rick like they were any normal new parents.  “I love her so much,” Marybeth cries, “I don’t think I can go through with it,” and Rick agrees.  Betsy and Bill are besides themselves with excitement.

March 30 is supposed to be the handover date, but it’s clear the Whiteheads, including their children, are already deeply attached to the baby.  “You knew this was going to be hard, Marybeth,” Rick says as he, Marybeth and even their daughter are crying.  Betsy says they have decided to name her Melissa Elizabeth, with the middle name representing both Betsy and Marybeth.  “I don’t feel like living anymore,” Marybeth whines, and the Sterns have to walk a fine line with a very depressed Marybeth, who wants visitation, vacations and such.

All Marybeth can think of is getting the baby back.  “She’s my flesh and blood, she’s part of us, she’s my baby!” Marybeth wails until Rick finally says, “then go get her.”  Meanwhile, the Sterns are rapturously happy with their baby…until Marybeth pays a visit.  Once she picks up the baby, it looks like she’s never going to put her down.  Betsy and everyone chalk it up to hormonal changes, or even “mourning” as her sister calls it.  A desperate Marybeth begs to have the baby for one week “and I’ll be out of your lives forever.”  Bill suggests Marybeth stay with them for a week, but Marybeth demands to have the baby for a week.  Unfortunately, Bill feels bad for Marybeth and agrees, the worst thing possible.  “Please reconsider,” he asks as she’s leaving the house with the baby.

Marybeth decides to take the baby to visit her family in Florida and even Rick can see that’s not a great idea.  “I’m her mother, do you think I’m gonna let anything happen to her?” she notes.  “What about the Sterns?” he asks.  “I don’t know…I only know I’m never giving the baby away again.  It’s my baby.”

Bill calls the infertility clinic looking for Marybeth’s psychological profile and reads that the doctor warned of this situation.  The clinic had misplaced this report when they saw her file, but refuse to take any responsibility, even going so far as to offer another surrogacy and “I’d waive the $7500 fee,” the head of the place tells Bill.  Ouch!

Marybeth delays and delays and since the Sterns don’t know she’s in Florida, they can’t exactly go get the baby.  When she returns and the Sterns visit, they still defy logic and let Marybeth keep her, always worried about Marybeth’s suicidal threats.  With the baby in her arms, Marybeth announces she will not give the baby back.  Legally, she’s in breech of contract, but Betsy warns of what a court fight will cost, financially and emotionally.  When Marybeth threatens to call the police, the Sterns finally have to go.  “You knew you were taking a risk and you lost,” Marybeth tells them after faking a fainting spell.

The Whiteheads get a new birth certificate to call the baby Sara and Marybeth isn’t afraid to spew venom about the Sterns.  The Sterns hire lawyer Gary Skoloff, who by the first week in May has the case in front of a judge.  The judge orders the baby be given to the Sterns and they show up at the Whiteheads with the police.  Rick produces their birth certificate, saying they know no baby Melissa Stern, only Sara Whitehead.  As the police dither, Rick sneaks the baby away.

Even Marybeth’s parents think she’s wrong.  While they hide out in Florida, the judge (Dakin Matthews) orders the Whitehead assets frozen.  “They want to destroy us, all because I changed my mind, because I don’t want to play God.  What right do they have?” Marybeth rails.  The Sterns track down the Whiteheads, so the Whiteheads leave their kids in Florida and “drive…just anywhere.”  The miniseries jumps the tracks a little with a very 80s montage of the exhausted Whiteheads driving endlessly and the Sterns wait out the weeks, all while the popular tune “Sara” plays.

Nine weeks of this has Rick on edge.  After Marybeth insists they baptize the baby, he demands to know what her plan is.  She doesn’t know.  Finally, she calls Bill, who records the call.  Bill tries to be rational, but Marybeth is irrational, blaming Bill for her loss of her house, her kids, her car, even her dogs, “just because I changed my mind.”  Bill reminds her that the judge is the one who made all of that happen so as not to antagonize her further.  “What do we do, cut her in half?” Marybeth asks, trying to get him to agree to somehow share the baby with her.  “Why do you have to be so selfish?” she asks during the hysterical phone call (which, incidentally for those of us with eagle eyes, has a big problem–notice that Marybeth walks around the house with the phone, the cord of which isn’t attached to anything).  “Just forget that you have a daughter, because I would rather see me and her dead before you get her,” Marybeth threatens to the ever-sympathetic Bill, who has bent over backwards for her sanity.  Of course there’s the inevitable, “I gave her life, I can take her life away” part of the speech.  The conversation goes on endlessly as Marybeth switches emotions ferociously but ends with the killing business (which of course she never intended to carry out).

It’s increasingly difficult to have any sympathy for Marybeth Whitehead, but the miniseries does not completely rule her out.  In fact, by spending most of the time on her (and JoBeth Williams’ terrific performance), the Sterns are made to seem a bit distant, not as emotionally connected.  Certainly Marybeth was in the wrong for not only violating the agreement, but spiriting the baby around from hiding place to hiding place, but without actually saying so, the miniseries does show the degree to which a mother will go for her flesh and blood, no matter what documents may say.  There’s something powerful about that, even if it’s legally, morally and ethically wrong.

Marybeth calls Bill back another day, this time downright angry because no lawyer will touch her side of the case since there are “no laws on surrogacy.”  “I will be making history, do you understand?” she asks with a far less demented tone.

But, that soon changes with the moment where the facts are too strong against Marybeth to keep dangling much sympathy for her.  She tells Bill her daughter is ready to testify that Bill sexually abused her in the car.  Bill hangs up, now fully intent on fighting Marybeth rather than appeasing her.

The strain lands Marybeth in the hospital with a blood infection that nearly kills her.  It was proceeded by a fit where Marybeth thought her kids had been taken.  Rick’s bizarre reaction to it is that anyone who saw her crazed that much for her kids would never taken one away and Marybeth once again asserts that no one is laying a hand on any of her babies.

Famous last words.  The sheriff sneaks into Marybeth’s mother’s house where they are staying with a court order to take the baby.  With Mom, the kids and Rick all screaming, the sheriff takes the baby and brings her to the Sterns.  “I will never ever ever let you go again,” Bill says to the baby.  Marybeth counters with a press conference from her hospital bed.

A pretrial hearing denies the Whiteheads custody of the baby.  “We’ll win this one in the court of public opinion,” Marybeth’s lawyer says as Marybeth and her daughter turn into consummate actresses, able to turn on the waterworks just when the press are snapping pictures.  While the Sterns refuse to talk to the press, Marybeth is only too happy to indulge them, spinning yarns like “they were only looking to see what stock I came from, like they were buying a side of beef” and saying that the the Sterns are unemotional and don’t actually care.

The court assigns a lawyer just to the baby, Lorraine Abraham (Anne Jackson) and the judge agrees that Baby M will stay with the Sterns during the legal proceedings.  Marybeth gets visitation rights for a few hours a week, but the judge advises that he’s only doing what’s best for the baby “not for the adults.”  Naturally, Marybeth spins that quite differently to the press, where not only does Marybeth say that Bill is no more than “sperm donor” (she’s always agreed that he was the father), but that Betsy purposely delayed having children, so it’s her fault!  The thinking there is that if Betsy really is not infertile, somehow it invalidates the surrogacy, because “Marybeth agreed to help an infertile couple.”  That’s awfully shaky logic, but it made sense to a lot of people at the time.

The trial finally starts in January of 1987.  The Whitehead lawyer is also on shaky ground in his opening argument, saying “the issue here is motherhood and whether money can buy everything.”  No, money can’t, but a signed contract can.  He goes from there to say his clients are not educated (noting Rick’s time in Vietnam while “the Sterns were in college) and thus “the niceties of a contract were lost on them.”  After the two sides go at it, Lorraine makes the most impassioned and logical speech on behalf of the baby (of course, picking a great actress like Anne Jackson helps things along).  Her opinion is that a contract is binding.  “The terms of this contract are clear,” she says, adding “while performance is painful, it is not impossible.”

Bill is first to testify and we finally find out what the condition is that made Betsy incapable of carrying a child: multiple sclerosis.  Though this did not make her technically infertile, the risk that came with childbirth was very high and Bill says this is how it was explained to Marybeth.  Then it’s Betsy’s turn, who remains calm and great with facts, reminding everyone how willing the Whiteheads were to give up the baby upon agreement and manages to trounce the Whitehead lawyer with her professionalism.

When Rick testifies, the Stern lawyer makes sure he admits that the money in the contract was a great inducement.  They rehash the surrender of the baby and the issue of two names, where Rick has to admit he knew the court order was for the baby, despite the birth certificate they had drawn up.

It’s not that the Sterns and their lawyer can’t use the press as well.  When asked if their money is the issue, Gary steps in to say that the Whiteheads have rolled out three times as many expert (paid) witnesses, right as they are arriving for court in a limousine, quite a stretch for the Whiteheads.

Of the four, last up is Marybeth to testify.  She claims she doesn’t remember the specifics of the first meeting with the Sterns.  Her testimony rings false, resting solely on the detail of infertility.  Even she has to admit that nothing in the agreement lets her keep the baby.  On top of that, Gary brings up a $1 million federal suit against the infertility suit she filed, which doesn’t help her.  Her credibility is pretty much shot.

Lorraine hires doctors to do evaluations and the show the Whiteheads put on is sheer desperation, dressing the kids up, buying large stuffed animals and such.  The Sterns don’t seem to be acting as they are grilled by the pros.  Plus, Bill has the best answer of all when asked what he would want in terms of visitation if the Whiteheads got her.  He says nothing, so as not to confuse her.

The first part of the court case, the contract phase, ends, and then comes the custody phase, which gives everyone the chance to testify again, this time with tears.  The Sterns both testify that they would not allow Marybeth any visitation rights if they won because of the way she has handled the press, her own children and the case by lying.  The tape of Marybeth’s threatening conversation to kill herself and the baby is played.  When she testifies, Marybeth claims she didn’t mean what she said.  No one, even her own lawyer, can make the tape sound beneficial to her case.  Marybeth claims if she were awarded custody, she would give the Sterns visitation rights, which sounds as hollow a promise as it is.  Marybeth even defends her husband’s love of drinking as having no effect on anyone in the family.  She has to admit to lying under oath in the deposition phase about a domestic incident at the house where the Whiteheads had “pushed” each other.  It was far more than that, in actuality a huge physical fight which reflects very badly on them.  The lies pile up and Marybeth is decimated not just by Gary’s performance, but her own stupidity.  It just gets worse and worse for Marybeth.  Frankly, the court phase of the miniseries needs only the exact testimony to devastate the Whitehead claim.  It could be delivered by puppets and make her sound ridiculous.

Lorraine gets to question Marybeth as well and her questions are not even intended to dismantle Marybeth, but Marybeth’s lies and evasions continue to hurt her.  The experts testify as they are supposed to, saying exactly what everyone expects them to say, though not too many are on Marybeth’s side completely.  Lorraine’s surprising advice is to give the Sterns custody, but to give Marybeth visitation rights.

Ultimately, the court finds for the Sterns, validating the contract and then blasts Marybeth for her bad behaviors.  She is not in court when the verdict is announced, instead entertaining the press on her lawn.

In the aftermath (meaning after the movie was finished), Marybeth appealed and though the New Jersey Supreme Court had some harsh words for the trial judge, it upheld the verdict, though granting Marybeth visitation rights.  Marybeth and Rick divorced and Marybeth had a child by another man.

In the nearly 25 years since the Baby M case, it seems almost impossible that such a case could have existed.  A contract is a contract and it’s unlikely that too much stock would be given to emotion, as was the case here.  However, none of that was clear at the time.  Surrogacy itself was entering the public conscience and it took an explosion like little Baby M to start the ball rolling on legislation.

However, none of that is the point of the movie either.  The movie is merely a retelling of the story, a very factual one at that, with initial sympathies divided.  By the trial phase, there is no doubt that Marybeth had been dishonest and shady, so the movie has no choice but to show that, but yet it ends with Marybeth questioning whether she will have visitation rights, so perhaps there was more to her than the disreputable character the court saw.

Categories: Historical Miniseries

9 Comments to “Baby M (1988)”

  1. creamnosugar 7 September 2014 at 12:10 pm #

    This review is a bit biased…come on ….

    • Bj Kirschner 19 October 2014 at 11:55 am #

      Biased by what? In favor of…? I am asking for honest feedback.

  2. creamnosugar 19 October 2014 at 12:29 pm #

    Biased in favor of the Stern’s point of view and the contract. As on example, the article above states that Mary Beth “whined” when she alluded to wanting to keep her daughter. She is the mother and Mr. Stern is father, that’s a fact regardless of a contract or whom one likes better . It would be only natural for any woman to feel that way. And the father too, actually.

    • Bj Kirschner 19 October 2014 at 1:42 pm #

      Ah, but I am not claiming to be a historian, journalist or expert in this case or any similar case. All I am doing is discussing this film version of the story. The film itself is definitely biased, sometimes in favor of one side or the other, but always to keep viewers enthralled. I agree with you 100% that the movie is a reflection of the time. I followed the case at the time very diligently as it unfolded and though it became clear that none of the parties were completely in the wrong or in the right legally or ethically, this was the case that the US focused on as if it were the only one of its kind. Both sides used the press, both sides did all they could to sound less legal and more parental as events unfolded, there was a lot of attacking and many teary interviews. Whether the verdict was right or not, whether the verdict would have been rendered the same today, those are very valid questions. When it comes to surrogacy, the judicial and medical fields have definitely matured in the last nearly 30 years. That may not be positive or negative, but we’re unlikely to have a gripping battle like we did back with Baby M.

      However, even more a product of the time is the film itself. The miniseries was made very quickly, before all of the legal avenues had been exhausted. Anyone old enough to read a newspaper seemed to know Baby M and Hollywood wasn’t going to let that opportunity be squandered. There have been other miniseries that have raced to cash in on a massive story like this, but few of them did it as quickly as this one. In my opinion, the reason for that is because it was so polarizing, it was a story about “normal” people, as opposed to a expose of celebrities or politicians, the usual targets of miniseries. It all but begs people to watch and sympathize with one side or the other. If they had waited any longer, there would have been no interest. The Baby M case is long forgotten today by the general public, though no doubt still a factor in legal circles or by people setting up arrangements around surrogacy.

      A social historian I am not. Just a guy who loves miniseries and has an eye and a whole lot of theories on why they existed, why they existed in the form they did, why people loved them and what made them such a thrill for American TV audiences.

      I appreciate your notes. You have strong convictions on the case itself and I am thrilled you expressed them here, doubly thrilled that you expressed them in a passionate fact-based way that makes sense to me.

      • creamnosugar 19 October 2014 at 2:07 pm #

        I, sir, am thrilled and flabbergasted you took the time to respond to me. Thank you…and I shall continue to enjoy your works.

        • Bj Kirschner 19 October 2014 at 2:20 pm #

          Why on earth would I not reply? I am thrilled that anyone reads these and hope that the book for which all of this is being done will be read by more than just a few relatives who get free copies. 🙂

          In all seriousness, I consider this a forum. Unfortunately, as a part of history, it’s not something of ongoing interest to heaps of people, but I have found that the people who do comment here either have well-stated opinions or the most amazing memories for detail. Both are very exciting to me. What I write here are my own opinions and everyone is welcome to add their own opinions even if they are the complete opposite of mine. The only comments I ignore are those from people who attack the tangential, rather than the miniseries or my interpretation of it (my ego for my own work is non-existent, I welcome all feedback and consider it helpful) or spam. Well, I have to admit I’m impressed with the spammers because they seem widely intelligent…imagine what they could do if their set their minds to bettering the world instead of annoying it.

          Feel free to check in any time and have your say. I thank you for posting, posting intelligently and allowing for dialogue. Now, back to “The Dain Curse.” It’s been way too long since my last post and I promised more today, so I must deliver. 🙂

  3. creamnosugar 19 October 2014 at 12:44 pm #

    ….Actually, by today’s standards, this “surrogate” mother would have never lost custody in light of the fact that she is the genetic mother. We as a society have been somewhat enlightened since then. Now if the surrogate is not the egg donor as well, one could make an argument that she is not the true mother and indeed “is” a surrogate. It is questionable if the surrogate mother was “dishonest and shady” as you wrote or if the Sterns attorneys went out of their way to make her SEEM that way, and the press “bought” it. I am quite certain that this particular surrogate mother is far from perfect as equal to the intended parents. But her wanting her baby is real. Any woman who has just given birth to there own flesh and blood would “whine”…this artivle does show an attempt to remain nuetral but falls short-and buys into the bias of that time.

    • JustMe 25 April 2015 at 5:58 pm #

      You realize this was a review of the miniseries and not a review of the actual Baby M case, right?

      • Creamnosugar 10 August 2015 at 2:08 am #

        Um, Yes, I do realize that. I was in a conversation with the author, did you not read the whole thread?


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