His Excellency Sheikh Ahdulaziz Bin Ibrahim AL-IBRAHIM, Plaintiff, v. George EDDE, Defendant.

Civ. A. No. 95-1145 PLF.

United States District Court, District of Columbia.

Sept. 8, 1995.

Elroy H. Wolff, Sidley & Austin, Washington, DC, for plaintiff.

Mark London, London & Mead, Washington, DC, for defendant.

OPINION

PAUL L. FRIEDMAN, District Judge.

George Edde has filed a counterclaim alleging that his former employer, Sheikh Ab-dulaziz Bin Ibrahim Al-Ibrahim, breached an oral contract to reimburse Mr. Edde for tax liability Edde incurred when he fraudulently claimed some of the Sheikh’s gambling winnings as his own and paid federal income taxes on those winnings. In addition to this breach of contract claim, Mr. Edde seeks restitution of the amount of money he paid to the IRS, $400,000, plus interest. He also seeks compensatory and punitive damages for fraud, alleging that the Sheikh defrauded him by falsely promising to reimburse him for those tax payments, and for the intentional infliction of emotional distress.

DISCUSSION

On a motion to dismiss, the Court operates within the factual universe described by the complaining party. This requires that the pleader’s factual allegations be taken as true and that any ambiguities be resolved in his favor. Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 325, 111 S.Ct. 1842, 1844, 114 L.Ed.2d 366 (1991); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994); Tele-Communications of Key West, Inc. v. United States, 757 F.2d 1330, 1334-35 (D.C.Cir.1985).

According to Mr. Edde’s description of the events leading up to this contentious dispute, a promise of employment by Sheikh Al-Ibrahim lured him away from his home in California during the mid 1980’s. Mr. Edde found himself occupied as the Sheikh’s constant companion. He alleges that the Sheikh, a frequent high stakes gambler, required Mr. Edde to accompany him on numerous visits to casinos in the United States and “insisted that Mr. Edde ... claim credit for [Sheikh Al-Ibrahim’s gambling] winnings.” Counterclaim ¶ 7. Mr. Edde admits that he signed for the Sheikh’s winnings on documents that were submitted to the Internal Revenue Service. Countercl. ¶ 7. Mr. Edde asserts that he “clearly understood that his signing for the Sheikh’s gambling winnings was a condition of his employment and that if he refused to do so, he would be discharged.” Countercl. ¶ 9.

In 1991 Mr. Edde’s circumstances deteriorated. Sheikh Al-Ibrahim’s demands left Mr. Edde at the point of exhaustion, he began to have marital difficulties, and the IRS began to contact him about taxes due on the gambling winnings he had signed for. Countercl. ¶¶ 10-11. Mr. Edde gave notice of his resignation to Sheikh Al-Ibrahim because “he could no longer continue to work for him at such a pace,” and left the Sheikh’s employ in late 1991. Countercl. ¶ 13. After leaving the Sheikh, Mr. Edde began negotiations with the IRS regarding the unpaid taxes on the gambling winnings. In August 1992, Mr. Edde reached an agreement with the IRS by which he would pay past obligations, interest and penalties on the gambling winnings he had claimed as his own. Countercl. ¶ 14. Mr. Edde asserts that as a result of representations made by the Sheikh both during and after his employment, he understood that the Sheikh would reimburse him for his tax obligations. Countercl. ¶¶ 8, 12, 13. Mr. Edde never informed the IRS that the gambling winnings actually were won by and retained by Sheikh Al-Ibrahim. See Countercl. ¶¶ 11, 12, 14.

Mr. Edde seeks reimbursement for the taxes he paid and compensation for breach of contract, fraud and intentional infliction of emotional distress. He maintains that “[t]o the extent Mr. Edde may have participated in an illegal act, he was not equally in the wrong with the Sheikh. Mr. Edde’s payment of the Sheikh’s tax obligations was solely for the benefit of the Sheikh.” Countercl. ¶ 26. Sheikh Al-Ibrahim has moved to dismiss, arguing, essentially, that Mr. Edde is a dishonorable character who should not be permitted to use the federal courts to enforce an illegal contract.

The Court heard oral argument on plaintiff’s motion to dismiss the counterclaim and granted the motion on August 28,1995. This Opinion sets forth the reasons for that decision.

A Breach of Contract Claim

Generally, a contract to perform an illegal act, such as the alleged contract between Mr. Edde and Sheikh Al-Ibrahim, is void and unenforceable. See, e.g., Lewis & Queen v. N.M. Ball Sons, 48 Cal.2d 141, 308 P.2d 713, 719 (1957).1 The purpose of this rule is to prevent wrongdoers from using or abusing the legitimate judicial process to resolve disputes over their illegal undertakings. Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 306, 105 S.Ct. 2622, 2626, 86 L.Ed.2d 215 (1985). Whether an action is brought in equity or at law, “neither party to an illegal contract will be aided by the court, whether to enforce it or to set it aside. If the contract is illegal, affirmative relief against it will not be granted at law or in equity....” United States v. Farrell, 606 F.2d 1341, 1348-49 (D.C.Cir.1979) (quoting St. Louis R.R. v. Terre Haute R.R., 145 U.S. 393, 407, 12 S.Ct. 953, 957, 36 L.Ed. 748 (1892)). The rule denying recovery is “based on public policy rather than a desire to benefit or punish either party.” United States v. Farrell, 606 F.2d at 1349 (emphasis in original); see Crylon Steel Co. v. Globus, 185 F.Supp. 757, 760 (S.D.N.Y.1960) (“[w]here ... a transaction is a fraud upon the public and is contrary to public policy ... courts will leave the parties where it finds them.”)

The courts of California and Nevada have recognized two exceptions to this otherwise accepted rule that fraud or illegality renders contracts unenforceable. A party who performed under an illegal contract may recover from a breaching party only if: (1) permitting relief to the non-breaching party would promote enforcement of the underlying law that led to the invalidity of the contract, or (2) denying relief would result in a harsh forfeiture when weighed against the seriousness of the illegality or the relative culpability of the parties. See Homestead Supplies v. Executive Life Insurance Co., 81 Cal.App.3d 978, 147 Cal.Rptr. 22, 29 (1978); Magill v. Lewis, 74 Nev. 381, 333 P.2d 717, 719 (Nev.1958). Applying these principles, the Court must consider the nature and the degree of the illegality, the public policy or policies to be served by enforcing or by refusing to enforce the contract, and the relative culpability of the parties. Homestead Supplies v. Executive Life Insurance Co., 147 Cal.Rptr. at 29; Magill v. Lewis, 333 P.2d at 719; see 6A Corbin on Contracts (1962) § 1534 (1962 and 1994 Supp.).

While not denying that his conduct was illegal, Mr. Edde argues that his conduct was not terribly serious compared with that of Sheikh Al-Ibrahim. Under a comparative culpability analysis, he contends that because the Sheikh avoided his tax obligation entirely while Mr. Edde paid the IRS, the Sheikh is the real culprit in the ease. Indeed, at oral argument, counsel for Mr. Edde repeatedly argued that what Mr. Edde did was to make a “lawful payment” to the IRS. Tr. at 14. He therefore maintains that the Sheikh is the more culpable and that public policy would be served by holding the Sheikh liable in contract. He relies on Homestead Supplies and Magill v. Lewis.

Mr. Edde’s characterization of this aspect of his conduct as lawful must be rejected. A United States citizen, Mr. Edde made false statements to the Internal Revenue Service in an effort to frustrate the lawful and timely collection of taxes. The fact that Mr. Edde ultimately paid the IRS does not excuse his behavior. According to the facts alleged in his own counterclaim, he broke the law.2 To enforce the contract between Mr. Edde and Sheikh Al-Ibrahim would be to excuse Mr. Edde’s conduct, to enforce a contract that had as its purpose the commission of illegal acts, and to permit the judicial process to be used in violation of public policy. See Dent v. Ferguson, 132 U.S. 50, 66, 10 S.Ct. 13,19, 33 L.Ed. 242 (1889); Maryland v. Baltimore & Ohio R.R. Co., 44 U.S. (3 How.) 534, 546, 11 L.Ed. 714 (1845); California Chicks, Inc. v. Viebrock, 254 Cal.App.2d 638, 62 Cal.Rptr. 269, 271 (1967). Mr. Edde’s breach of contract claim is dismissed.

B. Restitution

Mr. Edde contends that even if he is not entitled to damages for breach of contract, he should be permitted to maintain an action for restitution to ensure that the Sheikh is not unjustly enriched for his unlawful acts. He argues that he and the Sheikh were not equally culpable or in pari delicto (of equal fault). He asserts that he was induced, if not coerced, to take part in the illegal conduct by the influence of Sheikh Al-Ibrahim’s superior economic and bargaining position. He insists that he was not a “free agent.” See Karpinski v. Collins, 252 Cal.App.2d 711, 60 Cal.Rptr. 846 (1967); McAllister v. Drapeau, 14 Cal.2d 102, 92 P.2d 911 (1939); San Diego Prestressed Concrete Co. v. Chicago Title Ins. Corp., 92 Nev. 569, 555 P.2d 484, 487 (1976); 6A Corbin on CONTRACTS § 1537 (1967 and 1994 Supp.). Mr. Edde maintains that he is entitled to restitution because the Sheikh masterminded the tax avoidance scheme and was the only one who profited from it. See Asdourian v. Araj, 38 Cal.3d 276, 211 Cal.Rptr. 703, 712-13, 696 P.2d 95, 105 (1985) (citing Southfield v. Barrett, 13 Cal.App.3d 290, 91 Cal.Rptr. 514 (1970)). Indeed, Mr. Edde argues that as a result of this illegal scheme, his own finances were substantially depleted.

There is no mechanical rule by which to determine whether one party to an illegal contract is in pari delicto with another party to the contract. In considering the question on a motion to dismiss, the Court must accept the allegations made by the pleader. The Court therefore accepts Mr. Edde’s assertion that the Sheikh had a strong influence over him that enabled the Sheikh to make unusually burdensome demands, that the Sheikh expressed in angry terms his insistence that Mr. Edde sign for his gambling winnings, that Mr. Edde believed that signing for the winnings was a condition of his continued employment (although there is no allegation that the Sheikh threatened to fire him if he did not), and that Sheikh Al-Ibrahim was able to induce Mr. Edde’s illegal conduct because of his superior economic position in the relationship. Countercl. ¶¶ 7, 9.

If the remedy of restitution originates from the Court’s equitable powers, then the Court is guided by the principle that “he who comes to equity must come with clean hands.” Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 814, 65 S.Ct. 993, 997, 89 L.Ed. 1381 (1945). The doors of a court of equity are traditionally closed to one who acted inequitably, in bad faith or illegally in relation to the matter as to which he seeks relief; “however improper may have been the behavior of the defendant,” the court will not be “the abettor of inequity.” Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. at 814, 65 S.Ct. at 997 (quoting Bein v. Heath, 47 U.S. (6 How.) 228, 247, 12 L.Ed. 416 (1848)); see Blain v. The Doctor’s Co., 222 Cal.App.3d 1048, 272 Cal.Rptr. 250, 258-59 (1990); see McAdam v. Dean Witter Reynolds, 896 F.2d 750, 756-57 (3d Cir.1990) (citing Rothberg v. Rosenbloom, 808 F.2d 252, 256 n. 6 (3d Cir.1986), cert. denied, 481 U.S. 1017, 107 S.Ct. 1895, 95 L.Ed.2d 501 (1987)).

If restitution is an action brought at law, as most courts and commentators maintain, see W. Page Keeton et al., PROSSER and Keeton on Torts § 94, at 672-75 (5th ed. 1984 and 1988 Supp.), then the Court is guided by similar principles to those that bar Mr. Edde’s breach of contract claim. In a case involving a void, unenforceable contract, restitution is available only in exceptional circumstances. The cases cited by Mr. Edde do not provide support for the proposition that the exception should be invoked in this case.

In Homestead, for instance, the Court ruled against an insurance company that agreed to accept a lower premium than the legal premium prescribed in its rate table, explaining that the company should have known of the illegality, while there was no reason to find that the insured should have known. Homestead Supplies v. Executive Life Insurance Co., 147 Cal.Rptr. at 29. By way of contrast, Mr. Edde knew that he was misleading the IRS in reporting the Sheikh’s gambling winnings as his own and he should have known that making false statements to the IRS is illegal. In Karpinski, the Court concluded that the parties were not in pari delicto because the small dairyman who had been forced to pay a bribe in order to keep his milk contract had virtually no economic alternative but to pay the bribe. Karpinski v. Collins, 60 Cal.Rptr. at 848. While Mr. Edde maintains that his participation in the illegal contract was a condition of his job, his counterclaim is very carefully drafted. It alleges only that he “clearly understood that his signing for the Sheikh’s gambling winnings was a condition of his employment and that if he refused to do so, he would be discharged.” Countercl. ¶9 (emphasis added). He does not allege that he was ever threatened with loss of employment and does not set forth any facts, only eonclusory statements, from which the Court could infer that he was truly under economic duress or that he lacked an economic alternative to working for Sheikh Al-Ibrahim. Mr. Edde’s claim for restitution is dismissed.

C. Fraud

In order to state a prima facie case of fraud under California and Nevada law, a party must allege: (1) a misrepresentation of a material fact, (2) knowledge of the falsity, (8) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damages. Williams v. Wraxall, 33 Cal.App. 4th 120, 39 Cal.Rptr.2d 658, 664 n. 9 (1995); Blanchard v. Blanchard, 108 Nev. 908, 839 P.2d 1320, 1322 (1992). In the federal courts, the circumstances constituting an alleged fraud must be pleaded with particularity. Rule 9(b), Fed.R.Civ.P. The pleader must specify “what statements were made in what documents or in what context, the time and place of such statements, who made the statements, the manner in which the statements were misleading, and what the defendants obtained as a consequence of the statements.” In re Newbridge Networks Securities Litigation, 767 F.Supp. 275, 282 (D.D.C.1991); see Kowal v. MCI Communications Corp., 16 F.3d at 1278.

Mr. Edde alleges that the Sheikh made promises to him in order to induce him to sign for and pay the Sheikh’s taxes, that these promises were made after Mr. Edde had tendered his resignation, that these promises were false at the time they were made and were made for the purpose of inducing reliance by Mr. Edde, that Sheikh Al-Ibrahim had a motive for defrauding Mr. Edde, that Mr. Edde relied on the promises, and that Mr. Edde was damaged as a result. Countercl. ¶¶8, 12, 13, 18, 19, 22. These allegations are sufficient for the Court to draw an inference of fraud even under Rule 9(b). See Kowal v. MCI Communications Corp., 16 F.3d at 1278; Stebbins v. Keystone Ins. Co., 481 F.2d 501, 511 (D.C.Cir.1973). Whether Mr. Edde’s allegations can be proven at trial is not the issue before the Court. The allegations in the counterclaim are sufficiently pled and he has said enough to withstand a motion to dismiss.

On the other hand, fraud is an equitable remedy, and “he who comes into equity must come with clean hands.” Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. at 814, 65 S.Ct. at 997; Fibreboard Paper Products Corp. v. East Bay Union of Machinists, 227 Cal.App.2d 675, 39 Cal.Rptr. 64 (1964); see Locken v. Locken, 98 Nev. 369, 650 P.2d 803, 805 (1982). Thus, “equity requires that those seeking its protection shall have acted fairly and without fraud or deceit as to the controversy in issue.” Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. at 814-15, 65 S.Ct. at 997; see Blain v. The Doctor’s Co., 272 Cal.Rptr. at 258-59. In this case, in order to allege fraud, Mr. Edde has admitted his own involvement in serious illegal conduct. His hands are not washed clean merely because he paid money to the IRS. The very facts alleged in his counterclaim lead to the inescapable conclusion that Mr. Edde has not displayed that standard of conduct in his agreement with the Sheikh that entitles him to maintain an equitable action for fraud. That Sheikh Al-Ibrahim’s conduct may have been worse is irrelevant. McAdam v. Dean Witter Reynolds, 896 F.2d at 756-57.

D. Intentional Infliction of Emotional Distress

The tort of intentional infliction of emotional distress was created to punish conduct “exceeding all bounds usually tolerated by a decent society, of a nature which is especially calculated to cause, and does cause, mental distress.” Agarwal v. Johnson, 25 Cal.3d 932, 160 Cal.Rptr. 141, 149-50, 603 P.2d 58, 67 (1979) (internal quotation omitted). A prima facie case requires allegations of (1) outrageous conduct by the defendant, (2) an intention by the defendant to cause, or the reckless disregard of the probability of causing, emotional distress, (3) severe emotional distress, and (4) an actual and proximate causation of the emotional distress. Christensen v. Superior Court, 54 Cal.3d 868, 2 Cal.Rptr.2d 79, 100, 820 P.2d 181, 202 (1991); Star v. Rabello, 97 Nev. 124, 625 P.2d 90, 92 (1981).

There are two problems with Mr. Edde’s emotional distress claim. First, the alleged outrageous conduct is not so extreme as to exceed all bounds of that usually tolerated in a civilized society. The fact that Mr. Edde may have suffered real distress as a result of his dealings with Sheikh Al-Ibrahim and his pursuit by the IRS does not render the Sheikh’s alleged conduct extreme and outrageous. To the extent that the Court is able to identify the conduct of which Mr. Edde complains, it appears that Mr. Edde has simply alleged a breach of contract and fraud. Indeed, when asked at oral argument which allegations in his counterclaim related to the intentional infliction of emotional distress claim, counsel for Mr. Edde explained that “Sheikh [Al-Ibrahim] knew ... that Edde did not have the resources to pay these monies ... that Edde had entered into this agreement with the prospect that he would be paid back ... that Edde was suffering ... and he ignored [Mr. Edde’s pleas].” Tr. at 14. Accepting Mr. Edde’s allegations as true for purposes of this motion, the Sheikh’s conduct is not so outrageous as to meet the test announced by the courts of California and Nevada. See Cervantez v. J.C. Penney Co., 24 Cal.3d 579, 156 Cal.Rptr. 198, 206, 595 P.2d 975, 983 (1979); Star v. Rabello, 625 P.2d at 92.

Second, a cause of action for intentional infliction of emotional distress, like Mr. Edde’s other equitable claims, is barred by the defense of unclean hands. Blain v. The Doctor’s Co., 272 Cal.Rptr. at 258; see Locken v. Locken, 650 P.2d at 805. Mr. Edde’s emotional distress is directly attributable to his own knowing illegal conduct; it stems from his own illegal agreement with the Sheikh and his own misrepresentations to the IRS. Camp v. Jeffer, Mangels, Butler & Marmaro, 35 Cal.App.4th 620, 41 Cal.Rptr.2d 329, 340 (1995); Fibreboard Paper Products Corp. v. East Bay Union of Machinists, 39 Cal.Rptr. at 96-97. Because Mr. Edde comes before the Court with unclean hands, his claim for intentional infliction of emotional distress is dismissed.

CONCLUSION

For these reasons, plaintiffs motion to dismiss defendant’s counterclaim is granted. An Order Consistent with this Opinion was entered on August 28, 1995.

SO ORDERED.

1

Mr. Edde contends that under District of Columbia choice of law principles the Court should apply Nevada and/or California law in assessing the counterclaim. At oral argument, counsel for the Sheikh conceded the point, Tr. at 12, as he should have. Rymer v. Pool, 574 A.2d 283, 285-86 (D.C.1990); Moore v. Ronald Hsu Const. Co., Inc., 576 A.2d 734, 737 (D.C.1990); Hercules & Co., Ltd. v. Shama Restaurant Corp., 566 A.2d 31, 40 (D.C.1989); see Restatement (Second) of Conflict of Laws §§ 145, 188 (1971 and 1988 Supp.).

The District of Columbia's interest in this action is slight. Washington, D.C., is mentioned only once in the counterclaim as one of several locations where Sheikh Al-Ibrahim made promises to Mr. Edde. Countercl. ¶ 18. Most of the conduct underlying Mr. Edde’s claims is alleged to have taken place in California, Nevada or at unspecified locations; Mr. Edde’s injuries are largely alleged to have taken place in California; and Mr. Edde lives in California and the Sheikh lives outside of the United States. The Court need not resolve whether it would be more appropriate to apply California or Nevada law because the law of those two states is consistent on all the relevant issues.

2

If Mr. Edde’s allegations are accepted as true, then he attempted to evade and defraud the IRS in violation of the Internal Revenue Code. See, e.g., 26 U.S.C. §§ 7201, 7202, 7203, 7206. See Countercl. ¶¶ 7-14.

982 P.2d 1277

VALLEY MEDICAL SPECIALISTS, an Arizona professional corporation, Plaintiff-Appellant, v. Steven S. FARBER, D.O. and Susan H. Farber, husband and wife, Defendants-Appellees.

No. CV-97-0488-PR.

Supreme Court of Arizona, En Banc.

June 18, 1999.

Lane Campbell & Nach, P.C. By: Richard N. Brandes and Renaud Cook & Drury By: LeslieAnn Haacke and Bell & O’Connor, P.C., Phoenix By: John Daniel Campbell III and David A. Joffe, Scottsdale, for Plaintiff-Appellant.

Snell & Wilmer By: Lonnie J. Williams, Jr. and Bryan Cave, L.L.P. By: Mark I. Harrison, Rodney W. Ott, Phoenix, for Defendants-Appellees.

OPINION

FELDMAN, Justice.

We granted review to determine whether the restrictive covenant between Dr. Steven Farber and Valley Medical Specialists is enforceable. We hold that it is not. Public policy concerns in this case outweigh Valley Medical’s protectable interests in enforcing the agreement. We thus vacate the court of appeals’ opinion, affirm the trial court’s judgment, and remand to the court of appeals to resolve any remaining issues. We have jurisdiction pursuant to Arizona Constitution article VI, § 5(3) and A.R.S. § 12-120.24.

FACTS AND PROCEDURAL HISTORY

In 1985, Valley Medical Specialists (“VMS”), a professional corporation, hired Steven S. Farber, D.O., an internist and pulmonologist who, among other things, treated AIDS and HIV-positive patients and performed brachytherapy — a procedure that radiates the inside of the lung in lung cancer patients. Brachytherapy can only be performed at certain hospitals that have the necessary equipment. A few years after joining VMS, Dr. Farber became a shareholder and subsequently a minority officer and director. In 1991, the three directors, including Dr. Farber, entered into new stock and employment agreements. The employment agreement contained a restrictive covenant, the scope of which was amended over time.

In 1994, Dr. Farber left VMS and began practicing within the area defined by the restrictive covenant, which at that time read as follows:

The parties recognize that the duties to be rendered under the terms of this Agreement by the Employee are special, unique and of an extraordinary character. The Employee, in consideration of the compensation to be paid to him pursuant to the terms of this Agreement, expressly agrees to the following restrictive covenants:

(a) The Employee shall not, directly or indirectly:

(i) Request any present or future patients of the Employer to curtail or cancel their professional affiliation with the Employer;

(ii) Either separately, jointly, or in association with others, establish, engage in, or become interested in, as an employee, owner, partner, shareholder or otherwise, or furnish any information to, work for, or assist in any manner, anyone competing with, or who may compete with the Employer in the practice of medicine.

(in) Disclose the identity of any past, present or future patients of the Employer to any other person, firm or corporation engaged in a medical practice the same as, similar to or in general competition with the medical services provided by the Employer.

(iv) Either separately, jointly or in association with others provide medical care or medical assistance for any person or persons who were patients or [sic] Employer during the period that Employee was in the hire of Employer.

(d) The restrictive covenants set forth herein shall continue during the term of this Agreement and for a period of three (3) years after the date of termination, for any reason, of this Agreement. The restrictive covenants set forth herein shall be binding upon the Employee in that geographical area encompassed within the boundaries measured by a five (5) mile radius of any office maintained or utilized by Employer at the time of execution of the Agreement or at any time thereafter.

(e) The Employee agrees that a violation on his part of any covenant set forth in this Paragraph 17 will cause such damage to the Employer as will be irreparable and for that reason, that Employee further agrees that the Employer shall be entitled, as a matter of right, and upon notice as provided in Paragraph 20 hereof, to an injunction from any court of competent jurisdiction, restraining any further violation of said covenants by Employee, his corporation, employees, partners or agents. Such right to injunctive remedies shall be in addition to and cumulative with any other rights and remedies the Employer may have pursuant to this Agreement or law, including, specifically with regard to the covenants set forth in subparagraph 17(a) above, the recovery of liquidated damages equal to forty percent (40%) of the gross receipts received for medical services provided by the Employee, or any employee, associate, partner, or corporation of the Employee during the term of this Agreement and for a period of three (3) years after the date of termination, for any reason, of this Agreement. The Employee expressly acknowledges and agrees that the covenants and agreement contained in this Paragraph 17 are minimum and reasonable in scope and are necessary to protect the legitimate interest of the Employer and its goodwill.

(Emphasis added.)

VMS filed a complaint against Dr. Farber seeking (1) preliminary and permanent injunctions enjoining Dr. Farber from violating the restrictive covenant, (2) liquidated damages for breach of the employment agreement, and (3) damages for breach of fiduciary duty, conversion of patient files and confidential information, and intentional interference with contractual and/or business relations.

Following six days of testimony and argument, the trial court denied VMS’s request for a preliminary injunction, finding that the restrictive covenant violated public policy or, alternatively, was unenforceable because it was too broad. Specifically, the court found that: any covenant over six months would be unreasonable; the five-mile radius from each of the three VMS offices was unreasonable because it covered a total of 235 square miles; and the restriction was unreasonable because it did not provide an exception for emergency medical aid and was not limited to pulmonology.

The court of appeals reversed, concluding that a modified covenant was reasonable. Valley Med. Specialists v. Farber, 190 Ariz. 563, 950 P.2d 1184 (App.1997). The court noted that there were eight hospitals outside the restricted area where Dr. Farber could practice. Id. at 567, 950 P.2d at 1188. Although the covenant made no exceptions for emergency medicine, the court held that the severability clause permitted the trial court to modify the covenant so Dr. Farber could provide emergency services within the restricted area. Id. (citing Phoenix Orthopaedic Surgeons, Ltd. v. Peairs (“Peairs”), 164 Ariz. 54, 61, 790 P.2d 752, 759 (App.1989)). Moreover, VMS was allowed to stipulate that Dr. Farber could perform brachytherapy and treat AIDS and HIV patients within the restricted area, again even though the covenant contained no such exceptions. Valley Med. Specialists, 190 Ariz. at 567, 950 P.2d at 1188.

The court of appeals found the restriction, when so modified, reasonable as to time and place. Although non-emergency patients might be required to travel further to see Dr. Farber, they could continue to see him if they were willing to drive that far. Id. at 567-68, 950 P.2d at 1188-89. Three years was reasonable because the record contained testimony that it might take Dr. Farber’s replacement three to five years to develop his pulmonary practice referral sources to the level they were when Dr. Farber resigned. Id.

The court found that the restrictive covenant did not violate public policy, believing that courts must not unnecessarily restrict the freedom of contract. Id. at 568, 950 P.2d at 1189. Moreover, the record was void of any evidence that the availability of pulmonologists in the restricted area would be inadequate without Dr. Farber. Id.

DISCUSSION

A. Standard of review

There is some dispute over what standard of review should be applied to the trial court’s decision. Dr. Farber contends the court of appeals usurped the trial court’s discretion by applying a de novo standard. Granting or denying a preliminary injunction is within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of that discretion. Financial Assocs., Inc. v. Hub Properties, Inc., 143 Ariz. 543, 545, 694 P.2d 831, 833 (App.1984). The trial judge’s factual findings are reviewed on a clearly erroneous standard. See Rule 52(a), Ariz.R.Civ.P.

VMS contends, however, that the court of appeals correctly applied a de novo standard. Mixed findings of fact and law are reviewed de novo. Indeed, some courts have held that the determination of whether a restrictive covenant is reasonable is a question of law. See, e.g., Gann v. Morris, 122 Ariz. 517, 518, 596 P.2d 43, 44 (App.1979); Raymundo v. Hammond Clinic Ass’n, 449 N.E.2d 276, 280 (Ind.1983).

It is true that the ultimate question of reasonableness is a question of law. But reasonableness is a fact-intensive inquiry that depends on weighing the totality of the circumstances. Bryceland v. Northey, 160 Ariz. 213, 217, 772 P.2d 36, 40 (App.1989) (“Each ease hinges on its own particular facts.”); Olliver/Pilcher Ins. v. Daniels, 148 Ariz. 530, 532, 715 P.2d 1218, 1220 (1986). Thus, we will give substantial deference both to the trial court’s findings of fact and its application of law to fact, reviewing the former on a clearly erroneous standard and the latter for abuse of discretion.

B. History of restrictive covenants

A brief reference to basic principles is appropriate. Historically, covenants not to compete were viewed as restraints of trade and were invalid at common law. Ohio Urology, Inc. v. Poll, 72 Ohio App.3d 446, 594 N.E.2d 1027, 1031 (1991); see generally Harlan M. Blake, Employee Agreements not to Compete, 73 Harv. L. Rev. 625 (1960); Serena L. Kafker, Golden Handcuffs: Enforceability of Noncompetition Clauses in Professional Partnership Agreements of Accountants, Physicians, and Attorneys, 31 Am. Bus. L J. 31, 33 (1993). Eventually, ancillary restraints, such as those incident to employment or partnership agreements, were enforced under the rule of reason. See Restatement (Second) of Contracts § 188 (hereinafter “Restatement”). Given the public interest in doctor-patient relationships, the validity of restrictive covenants between physicians was carefully examined long ago in Mandeville v. Harman:

The rule is not that a limited restraint is good, but that it may be good. It is valid when the restraint is reasonable; and the restraint is reasonable when it imposes no shackle upon the one party which is not beneficial to the other.

The authorities are uniform that such contracts are valid when the restraint they impose is reasonable, and the test to be applied, ... is this: To consider whether the restraint is such only as to afford a fair protection to the interest of the party in favor of whom it is given, and not so large as to interfere with the interest of the public. Whatever restraint is larger than the necessary protection of the party can be of no benefit to either; it can only be oppressive, and, if oppressive, it is, in the eye of the law, unreasonable and void, on the ground of public policy, as being injurious to the interests of the public.

42 N.J. Eq. 185, 7 A. 37, 38-39 (1886) (citations omitted); see also Karlin v. Weinberg, 77 N.J. 408, 390 A.2d 1161, 1165 (1978). To be enforced, the restriction must do more than simply prohibit fair competition by the employee. Bryceland, 160 Ariz. at 216, 772 P.2d at 39. In other words, a covenant not to compete is invalid unless it protects some legitimate interest beyond the employer’s desire to protect itself from competition. Amex Distrib. Co. v. Mascari, 150 Ariz. 510, 518, 724 P.2d 596, 604 (App.1986). The legitimate purpose of post-employment restraints is “to prevent competitive use, for a time, of information or relationships which pertain peculiarly to the employer and which the employee acquired in the course of the employment.” Blake, supra, 73 Harv. L. Rev. at 647. Despite the freedom to contract, the law does not favor restrictive covenants. Ohio Urology, Inc., 594 N.E.2d at 1031. This disfavor is particularly strong concerning such covenants among physicians because the practice of medicine affects the public to a much greater extent. Id. In fact, “[f]or the past 60 years, the American Medical Association (AMA) has consistently taken the position that noncompetition agreements between physicians impact negatively on patient care.” Paula Berg, Judicial Enforcement of Covenants not to Compete Between Physicians: Protecting Doctors’ Interests at Patients’ Expense, 45 Rutgers L. Rev. 1, 6 (1992).

C. Level of scrutiny — public policy considerations

We first address the level of scrutiny that should be afforded to this restrictive covenant. Dr. Farber argues that this contract is simply an employer-employee agreement and thus the restrictive covenant should be strictly construed against the employer. See Amex Distrib. Co., 150 Ariz. at 514, 724 P.2d at 600 (noting employer-employee restrictive covenants are disfavored and strictly construed against the employer). This was the approach taken by the trial court. VMS contends that this is more akin to the sale of a business; thus, the noncompete provision should not be strictly construed against it. See id. (courts more lenient in enforcing restrictive covenants connected to sale of business because of need to effectively transfer goodwill). Finding the agreement here not on all fours with either approach, the court of appeals applied a standard “somewhere between” the two. Valley Med. Specialists, 190 Ariz. at 566, 950 P.2d at 1187.

Although this agreement is between partners, it is more analogous to an employer-employee agreement than a sale of a business. See Restatement § 188 cmt. h (“A rule similar to that applicable to an employee or agent applies to a partner who makes a promise not to compete that is ancillary to the partnership agreement or to an agreement by which he disposes of his partnership interest.”). Many of the concerns present in the sale of a business are not present or are reduced where, as here, a physician leaves a medical group, even when that physician is a partner. When a business is sold, the value of that business’s goodwill usually figures significantly into the purchase price. The buyer therefore deserves some protection from competition from the former owner.' See Kafker, supra, 31 Am. Bus. L.J. at 33. A restraint accompanying the sale of a business is necessary for the buyer to get the full goodwill value for which it has paid. Blake, supra, 73 Harv. L. Rev. at 647.

It is true that in this case, unlike typical employer-employee agreements, Dr. Farber may not have been at a bargaining disadvantage, which is one of the reasons such restrictive covenants are strictly construed. See, e.g., Rash v. Toccoa Clinic Med. Assocs., 253 Ga. 322, 320 S.E.2d 170, 172-73 (1984). Unequal bargaining power may be a factor to consider when examining the hardship on the departing employee. But in cases involving the professions, public policy concerns may outweigh any protectable interest the remaining firm members may have. Thus, this ease does not turn on the hardship to Dr. Farber.

By restricting a physician’s practice of medicine, this covenant involves strong public policy implications and must be closely scrutinized. See Peairs, 164 Ariz. at 60, 790 P.2d at 758; Ohio Urology, Inc., 594 N.E.2d at 1032 (restrictive covenant in medical context “strictly construed in favor of professional mobility and access to medical care and facilities”). Although stopping short of banning restrictive covenants between physicians, the American Medical Association (“AMA”) “discourages” such covenants, finding they are not in the public interest.

The Council on Ethical and Judicial Affairs discourages any agreement between physicians which restricts the right of a physician to practice medicine for a specified period of time or in a specified area upon termination of employment or a partnership or a corporate agreement. Such restrictive agreements are not in the public interest.

1989 Current Opinions of the Council on Ethical and Judicial Affairs, Section 9.02 (hereinafter “AMA Opinions”). In addition, the AMA recognizes that free choice of doctors is the right of every patient, and free competition among physicians is a prerequisite of optimal care and ethical practice. See AMA Opinions, Section 9.06; Ohio Urology, Inc., 594 N.E.2d at 1030.

For similar reasons, restrictive covenants are prohibited between attorneys. See Dwyer v. Jung, 133 N.J.Super. 343, 336 A.2d 498, 501 (Ct. Ch. Div.), aff'd, 137 N.J.Super. 135, 348 A.2d 208 (App.Div.1975); Cohen v. Lord, Day & Lord, 75 N.Y.2d 95, 551 N.Y.S.2d 157, 550 N.E.2d 410, 410-11 (1989). In 1969, the American Bar Association adopted a code of professional conduct that contained a disciplinary rule prohibiting restrictive covenants between attorneys. See Berg, supra, 45 Rutgers L. Rev. at 37. The ethical rules adopted by this court provide:

A lawyer shall not participate in offering or making:

(a) a partnership or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship except an agreement concerning benefits upon retirement; or

(b) an agreement in which a restriction on the lawyers right to practice is part of the settlement of a controversy between private parties.

Ethical Rule (“ER”) 5.6, Arizona Rules of Professional Conduct, Rule 42, Ariz.R.Sup. Ct.

Restrictive covenants between lawyers limit not only their professional autonomy but also the client’s freedom to choose a lawyer. See ER 5.6 cmt. We do not, of course, enact ethical rules for the medical profession, but given the view of the AMA to which we have previously alluded, we believe the principle behind prohibiting restrictive covenants in the legal profession is relevant.

Commercial standards may not be used to evaluate the reasonableness of lawyer restrictive covenants. Strong public policy considerations preclude their applicability. In that sense lawyer restrictions are injurious to the public interest. A client is always entitled to be represented by counsel of his own choosing. The attorney-client relationship is consensual, highly fiduciary on the part of counsel, and he may do nothing which restricts the right of the client to repose confidence in any counsel of his choice. No concept of the practice of law is more deeply rooted.

Dwyer, 336 A.2d at 500.

We therefore conclude that the doctor-patient relationship is special and entitled to unique protection. It cannot be easily or accurately compared to relationships in the commercial context. In light of the great public policy interest involved in covenants not to compete between physicians, each agreement will be strictly construed for reasonableness.1

D. Reasonableness of covenant

Reasonableness is a fact-intensive inquiry that depends on the totality of the circumstances. Bryceland, 160 Ariz. at 217, 772 P.2d at 40 (“Each case hinges on its own particular facts.”); Olliver/Pilcher Ins., 148 Ariz. at 532, 715 P.2d at 1220. A restriction is unreasonable and thus will not be enforced: (1) if the restraint is greater than necessary to protect the employer’s legitimate interest; or (2) if that interest is outweighed by the hardship to the employee and the likely injury to the public. See Restatement § 188 cmt. a.; see also Blake, supra, 73 Harv. L. Rev. at 648-49; Ferdinand S. Tinio, Annotation, Validity and Construction of Contractual Restrictions on Right of Medical Practitioner to Practice, Incident to Partnership Agreement, 62 A.L.R.3d 970, 984 (1975). Thus, in the present case, the reasonableness inquiry requires us to examine the interests of the employer, employee, patients, and public in general. See 62 A.L.R.3d at 976; see also Peairs, 164 Ariz. at 57, 790 P.2d at 755; Amex Distrib. Co., 150 Ariz. at 514, 724 P.2d at 600 (accommodating right to work, right to contract, and public’s right to competition); see generally Blake, supra. Balancing these competing interests is no easy task and no exact formula can be used. See Restatement § 188 cmt. a.

In holding this restrictive covenant enforceable, the court of appeals relied heavily on Peairs, noting the restriction here was “very similar to the one in Peairs, which restricted a doctor from practicing orthopedic medicine and surgery within a five-mile radius of each of three offices for three years.” Valley Med. Specialists, 190 Ariz. at 567, 950 P.2d at 1188. As noted, however, each case must be decided on its own unique facts. Bryceland, 160 Ariz. at 217, 772 P.2d at 40. Here, the facts are sufficiently distinguishable from Peairs to warrant different treatment. For instance, in Peairs the three offices were “clustered,” and the total restricted area was thus much smaller. 164 Ariz. at 60, 790 P.2d at 758. The Peairs restrictive covenant prevented the practice of “orthopedic medicine and surgery.” Id. at 56, 790 P.2d at 754. Here, however, the covenant prohibited Dr. Farber from providing any and all forms of “medical care,” including not only pulmonology, but emergency medicine, brachytherapy treatment, and HIV-positive and AIDS patient care. Finally, the trial court in Peairs granted the preliminary injunction, while the trial court here denied it. Because we review the grant or denial of a preliminary injunction for abuse of discretion, the trial judge’s ruling after hearing the evidence in both cases is another factor that distinguishes the two cases.

E. VMS’s protectable interest

VMS contends, and the court of appeals agreed, that it has a protectable interest in its patients and referral sources. In the commercial context, it is clear that employers have a legitimate interest in retaining their customer base. See, e.g., Bryceland, 160 Ariz. at 217, 772 P.2d at 40. “The employer’s point of view is that the company’s clientele is an asset of value which has been acquired by virtue of effort and expenditures over a period of time, and which should be protected as a form of property.” Blake, supra, 73 Harv. L. Rev. at 654. In the medical context, however, the personal relationship between doctor and patient, as well as the patient’s freedom to see a particular doctor, affects the extent of the employer’s interest. See Ohio Urology Inc., 594 N.E.2d at 1031-32. “The practice of a physician is a thing so purely personal, depending so absolutely on the confidence reposed in his personal skill and ability, that when he ceases to exist it necessarily ceases also____” Mandeville, 7 A. at 40-41 (holding medical practice’s patient base is not protectable interest); see also Berg, supra, 45 Rutgers L. Rev. at 17.

Even in the commercial context, the employer’s interest in its customer base is balanced with the employee’s right to the customers. Where the employee took an active role and brought customers with him or her to the job, courts are more reluctant to enforce restrictive covenants. Blake, supra, 73 Harv. L. Rev. at 664, 667. Dr. Farber was a pulmonologist. He did not learn his skills from VMS. Restrictive covenants are designed to protect an employer’s customer base by preventing “a skilled employee from leaving an employer and, based on his skill acquired from that employment, luring away the employer’s clients or business while the employer is vulnerable — that is — before the employer has had a chance to replace the employee with someone qualified to do the job.” Bryceland, 160 Ariz. at 217, 772 P.2d at 40. These facts support the trial judge’s conclusion that VMS’s interest in protecting its patient base was outweighed by other factors.

We agree with VMS, however, that it has a protectable interest in its referral sources. See Medical Specialists, Inc. v. Sleweon, 652 N.E.2d 517, 523 (Ind.App.1995) (“Clearly, the continued success of [a specialty] practice, which is dependent upon patient referrals, is a legitimate interest worthy of protection.”); Ballesteros v. Johnson, 812 S.W.2d 217, 223 (Mo.App.1991).

F. Scope of the restrictive covenant

The restriction cannot be greater than necessary to protect VMS’s legitimate interests. A restraint’s scope is defined by its duration and geographic area. The frequency of contact between doctors and their patients affects the permissible length of the restraint. Blake, supra, 73 Harv. L. Rev. at 659. The idea is to give the employer a reasonable amount of time to overcome the former employee’s loss, usually by hiring a replacement and giving that replacement time to establish a working relationship. Id. Even in the commercial context, “[w]hen the restraint is for the purpose of protecting customer relationships, its duration is reasonable only if it is no longer than necessary for the employer to put a new man on the job and for the new employee to have a reasonable opportunity to demonstrate his effectiveness to the customers.” Amex Distrib. Co., 150 Ariz. at 518, 724 P.2d at 604 (quoting Blake, supra, 73 Harv. L. Rev. at 677).

In this case, the trial judge found that the three-year period was an unreasonable duration because

all of the experts agree that the practice of pulmonology entails treating patients with chronic conditions which require more hospital care than office care and which requires regular contact with the treating physician at least once within each six-month period so that any provision over six months is onerous and unnecessary to protect VMS’s economic interests where virtually all of Dr. Farber’s VMS patients had an opportunity by late 1994 or early 1995 (Farber left September 12, 1994) to decide which pulmonologist ... they would consult for their ongoing treatment[.]

On this record, we cannot say this factual finding was clearly erroneous. The three-year duration is unreasonable.

The activity prohibited by the restraint also defines the covenant’s scope. The restraint must be limited to the particular speciality of the present employment. See Blake, supra, 73 Harv. L. Rev. at 676. On its face, the restriction here is not limited to internal medicine or even pulmonology. It precludes any type of practice, even in fields that do not compete with VMS. Thus, we agree with the trial judge that this restriction is too broad. Compare Peairs, 164 Ariz. at 56, 790 P.2d at 754 (upholding injunction that enforced restrictive covenant preventing doctor from practicing only orthopaedic medicine and orthopaedic surgery).

G. Public policy

The court of appeals held that the restrictive covenant does not violate public policy, pointing out that the record contains nothing to suggest there will be a lack of pulmonologists in the restricted area if Dr. Farber is precluded from practicing there. Even if we assume other pulmonologists will be available to cover Dr. Farber’s patients, we disagree with this view. It ignores the significant interests of individual patients within the restricted area. Kafker, supra, 31 Am. Bus. L.J. at 39-40. A court must evaluate the extent to which enforcing the covenant would foreclose patients from seeing the departing physician if they desire to do so. See Karlin, 390 A.2d at 1170; see also AMA Opinions, Section 9.06.

Concluding that patients’ right to see the doctor of their choice is entitled to substantial protection, VMS’s protectable interests here are comparatively minimal. See Berg, supra, 45 Rutgers L. Rev. at 15-36. The geographic scope of this covenant encompasses approximately 235 square miles, making it very difficult for Dr. Farber’s existing patients to continue treatment with him if they so desire. After six days of testimony, the trial judge concluded that this restrictive covenant was unreasonably broad and against public policy. Specifically, the judge found:

(1) the three year duration was unreasonable because pulmonology patients typically require contact with the treating physician once every six months. Thus, a restriction over six months is unnecessary to protect VMS’s economic interests. Patients would have had opportunity within approximately six months to decide which doctor to see for continuing treatment;

(2) the five mile radius was unreasonable because with the three offices, the restriction covered more than 235 square miles;

(3) the restriction was unreasonable because it did not expressly provide for an exception for emergency medical treatment;

(4) the restriction was overly broad because it is not limited to pulmonology;

(5) the covenant violates public policy because of the sensitive and personal nature of the doctor-patient relationship.

Given the facts and the principles discussed, that finding is well supported factually and legally.

H. Severance — the blue pencil rule

This contract contains a severance clause.2 The court of appeals accepted a stipulation by VMS that the restriction would not prohibit Dr. Farber from treating HIV-positive and AIDS patients or from performing brachytherapy. On its face, however, the restriction is broader than that, restricting him from providing “medical care or medical assistance for any person or persons who were patients or [sic] Employer during the period that Employee was in the hire of Employer.” Arizona courts will “blue pencil” restrictive covenants, eliminating grammatically severable, unreasonable provisions. See Amex Distrib. Co., 150 Ariz. at 514, 724 P.2d at 600; Olliver/Pilcher Ins., 148 Ariz. at 533, 715 P.2d at 1221 (“If it is clear from its terms that a contract was intended to be severable, the court can enforce the lawful part and ignore the unlawful part.”). Here, however, the modifications go further than cutting grammatically severable portions. The court of appeals, in essence, rewrote the agreement in an attempt to make it enforceable. This goes too far. “Where the severability of the agreement is not evident from the contract itself, the court cannot create a new agreement for the parties to uphold the contract.” Olliver/Pilcher Ins., 148 Ariz. at 533, 715 P.2d at 1221.

Even the blue pencil rule has its critics. For every agreement that makes its way to court, many more do not. Thus, the words of the covenant have an in terrorem effect on departing employees. See Blake, supra, 73 Harv. L. Rev. at 682-83. Employers may therefore create ominous covenants, knowing that if the words are challenged, courts will modify the agreement to make it enforceable. Id. Although we will tolerate ignoring severable portions of a covenant to make it more reasonable, we will not permit courts to add terms or rewrite provisions.

In modifying the agreement, the court of appeals cited Peairs, which indeed allowed the trial court to alter the restrictive covenant in a contract “between medical professionals whose services are necessary for the welfare of the public.” 164 Ariz. at 61, 790 P.2d at 759. We disapprove of the portion of Peairs that permits courts to rewrite and create a restrictive covenant significantly different from that created by the parties.

CONCLUSION

We hold that the restrictive covenant between Dr. Farber and VMS cannot be enforced. Valley Medical Specialists’ interest in enforcing the restriction is outweighed by the likely injury to patients and the public in general. See Restatement § 188. In so holding, we need not reach the question of the hardship imposed on Dr. Farber. The public policy implications here are enough to invalidate this particular agreement. We stop short of holding that restrictive covenants between physicians will never be enforced, but caution that such restrictions will be strictly construed. The burden is on the party wishing to enforce the covenant to demonstrate that the restraint is no greater than necessary to protect the employer’s legitimate interest, and that such interest is not outweighed by the hardship to the employee and the likely injury to the public. Here VMS has not met that burden. The restriction fails because its public policy implications outweigh the legitimate interests of VMS.

Dr. Farber listed in his petition for review several issues “presented to, but not decided by, the court of appeals.” Valley Medical Specialists’ response also contained “additional issues if the court accepts review.” None of the issues were briefed in this court. We thus remand to the court of appeals for a determination of those issues that are capable of decision and still need to be decided.

THOMAS A. ZLAKET, Chief Justice, and CHARLES E. JONES, Vice Chief Justice, FREDERICK J. MARTONE, Justice, and RUTH V. McGREGOR, Justice, concur.

1

. Dr. Farber asks us to hold restrictive covenants in the medical profession void per se as against public policy. Finding the present covenant unreasonable and thus unenforceable by injunction, we need not and do not address that contention.

2

. Since it is the agreement and desire of the parties hereto that the provisions of this Paragraph 17 be enforced to the fullest extent possible under the laws and public policies applied in each jurisdiction in which enforcement is sought, should any particular provision of this Paragraph 17 be deemed invalid or unenforceable, the same shall be deemed reformed and amended to delete herefrom that portion thus adjudicated invalid, and the deletion shall apply only with respect to the operation of said provision and, to the extent a provision of this Paragraph 17 would be deemed unenforceable by virtue of its scope, but may be made unenforceable by limitation thereof, each party agrees that this Agreement shall be reformed and amended so that the same shall be enforceable to the fullest extent permissible under the laws and public policies applied in the jurisdiction in which enforcement is sought, the parties hereto acknowledging that the covenants contained in this Paragraph 17 are an indispensable part of the transactions contemplated herein.

[1010] For the plaintiff-appellant-petitioner there were briefs by David M. Erspamer and Erspamer Law Office, Amery and oral argument by David M. Erspamer.

For the defendant-respondent there was a brief by Mark E. Coe and Coe, Dalrymple, Heathman, Coe & Zabel, S.C., Rice Lake and oral argument by Mark E. Coe.

ABRAHAMSON, J.

This is a review of an unpublished decision of the court of appeals filed on January 20, 1993, affirming a judgment of the circuit court for Barron County, Edward R. Brunner, Circuit Judge. The circuit court granted summary judgment to Monkem Company, the defendant, dismissing the complaint with prejudice. It held that the form signed by Jerilyn Richards, the plaintiff, was an exculpatory contract that was not void or unenforceable as contrary to public policy. It further held that the plaintiff's claim for injuries suffered while riding as a passenger in a truck operated by Leo Richards, her husband, and owned by Monkem Company, her husband's employer, was clearly within the contemplation of the parties at the time the exculpatory contract was executed. The circuit court thus foreclosed the plaintiff's claim as a matter of law. The court of appeals affirmed the judgment of the circuit court. We reverse and remand for further proceedings.

[1,2]

The issue before this court is whether the form the plaintiff executed constitutes a valid exculpatory contract releasing the plaintiff's claims against Monkem Company, thereby barring this lawsuit. This issue arose in a motion for summary judgment, and this [1011] court is reviewing a decision affirming the summary judgment. Therefore the standard of review is the same as the standard used by the circuit court to determine whether to grant the motion for summary judgment. Dobratz v. Thomson, 161 Wis.2d 502, 513, 468 N.W.2d 654 (1991). If an exculpatory contract is found to be invalid on its face, the defendant's motion for summary judgment will be denied. Dobratz v. Thomson, 161 Wis.2d at 526. Thus, this court must determine whether, as a matter of law, the form was a valid exculpatory contract that bars the plaintiff's claim.

[3]

We conclude that the form at issue here is an exculpatory contract void as against public policy. As is often the case, neither a prior decision of the court nor the facts of a prior case is directly on point. An examination of the principles underlying the determination of the validity of exculpatory contracts leads us to the conclusion that the form is an unenforceable exculpatory contract due to a combination of three factors. None of these factors alone would necessarily invalidate the release; however, taken together they demand the conclusion that the contract is void as against public policy. First, the contract serves two purposes, not clearly identified or distinguished. Second, the release is extremely broad and all-inclusive. Third, the release is in a standardized agreement printed on the Company's form, offering little or no opportunity for negotiation or free and voluntary bargaining.

The facts relevant to our determination of the validity of the form as an exculpatory contract are not in dispute. In February of 1990, Leo Richards was hired by Monkem Company as an over-the-road truck driver. Shortly thereafter, the plaintiff and her husband discussed the possibility of her riding as a [1012] passenger with him. Before the plaintiff could accompany her husband, however, Monkem Company required that she sign a form entitled "Passenger Authorization," and she did so on or about May 22, 1990.

The "Passenger Authorization" form used by Monkem Company appears to have two purposes. First, it served as Monkem Company's authorization to the passenger to ride in a company truck. Second, it serves as a passenger's general release of all claims against the Company. The language of release attempts to transform the "Passenger Authorization" form into an exculpatory contract relieving Monkem Company and all of its affiliated companies, partnerships, individuals and corporations (as well as others) from any and all liability for harm to the person signing the form. See Merten v. Nathan, 108 Wis.2d 205, 210, 321 N.W.2d 173 (1982). The form reads as follows: [1013]

[1014] In addition, the form contains an insert asking for the passenger's height, weight, hair color, eye color, driver's license number, and social security number. The appropriate information about the plaintiff was inserted on the form. The release was signed by Leo Richards as driver, Jerilyn Richards as passenger, and C.L. McCarley, Director of Risk Management for Monkem Company.

On June 14, 1990, the plaintiff accompanied her husband on one of his scheduled trips. When the truck, negotiating a left curve, overturned, the plaintiff was pinned inside the vehicle. The injuries she sustained as a result of this accident are the basis for the current lawsuit.

The principles applicable to the determination of the validity of exculpatory contracts were recently set forth by the court in Dobratz v. Thomson, 161 Wis.2d 502, 514-20, 468 N.W.2d 654 (1991), which incorporated, explained, and elaborated on the principles set forth in several earlier cases. See, e.g., Discount Fabric House v. Wisconsin Telephone Co., 117 Wis.2d 587, 345 N.W.2d 417 (1984) (contract releasing liability of telephone company for negligent omission of and from yellow pages); Arnold v. Shawano Co. Agr. Socy, 111 Wis.2d 203, 330 N.W.2d 773 (1983) (contract releasing liability of race track to driver), overruled on other grounds, Green Spring Farms v. Kersten, 136 Wis.2d 304, 314, 401 N.W.2d 816 (1987); Merten v. Nathan, 108 Wis.2d 205, 321 N.W.2d 173 (1982) (contract releasing liability of horseback riding school to pupil); and College Mobile Home Park & Sales v. Hoffmann, 72 Wis.2d 514, 241 N.W.2d 174 (1976) (contract releasing liability of landlord to tenant).

[1015] [4]

We now reiterate several of the principles from these cases which are relevant to the case at bar. Exculpatory contracts are not favored by the law because they tend to allow conduct below the acceptable standard of care applicable to the activity. Exculpatory contracts are not, however, automatically void and unenforceable as contrary to public policy. Arnold v. Shawano Co. Agr. Socy, 111 Wis.2d 203, 209, 330 N.W.2d 773 (1983), overruled on other grounds, Green Spring Farms v. Kersten, 136 Wis.2d 304, 314, 401 N.W.2d 816 (1987); Dobratz v. Thomson, 161 Wis.2d 502, 514, 468 N.W.2d 654 (1991). Rather, a court closely examines whether such agreements violate public policy and construes them strictly against the party seeking to rely on them. Merten v. Nathan, 108 Wis.2d 205, 211, 321 N.W.2d 173 (1982).

[5]

In determining whether an exculpatory agreement violates public policy and is therefore void, courts recognize that public policy is not an easily defined concept. The concept embodies the common sense and common conscience of the community. Public policy is that principle of law under which "freedom of contract is restricted by law for the good of the community." Merten v. Nathan, 108 Wis.2d 205, 213, 321 N.W.2d 173 (1982) (quoting Higgins v. McFarland, 86 S.E.2d 168, 172 (Va. 1955). An exculpatory agreement will be held to contravene public policy if it is so broad "that it would absolve [the defendant] from any injury to the [plaintiff] for any reason." College Mobile Home Park & Sales v. Hoffmann, 72 Wis.2d 514, 521-22, 241 N.W.2d 174 (1976). See also Arnold v. Shawano Co.Agr.Socy, 111 Wis.2d 203, 210, 330 N.W.2d 773 (1983), citing College Mobile Home Park with approval. In Dobratz v. [1016] Thomson, 161 Wis.2d 502, 520, 468 N.W.2d 654 (1991), a unanimous court, striking down an overly broad release, stated that "this court will not favor an exculpatory contract that is broad and general in its terms."

In reviewing an exculpatory agreement for violation of public policy, a court attempts to accommodate the tension between the principles of contract and tort law that are inherent in such an agreement. The law of contract is based on the principle of freedom of contract; people should be able to manage their own affairs without government interference. Freedom of contract is premised on a bargain freely and voluntarily made through a bargaining process that has integrity. Contract law protects justifiable expectations and the security of transactions. The law of torts is directed toward compensation of individuals for injuries resulting from the unreasonable conduct of another. Tort law also serves the "prophylactic" purpose of preventing future harm; tort law seeks to deter certain conduct by imposing liability for conduct below the acceptable standard of care. Merten v. Nathan, 108 Wis.2d 205, 211-212, 214, 321 N.W.2d 173 (1982).

Applying these principles to this case we conclude that the exculpatory contract at issue is void as against public policy. In this case, the public policy "of imposing liability on persons whose conduct creates an unreasonable risk of harm" outweighs the public policy of "freedom of contract." Merten v. Nathan, 108 Wis.2d 205, 215, 321 N.W.2d 173 (1982). Accordingly we conclude that it would be contrary to public policy to enforce the exculpatory language in Monkem Company's "Passenger Authorization" form. A combination of three factors in this case leads us to this conclusion.

[1017] [6]

First, the contract serves two purposes, not clearly identified or distinguished. As we stated previously, those purposes appear to be: (1) the Company authorizes the passenger to ride in a Company truck, and (2) the passenger releases the Company and others from liability. This dual function, however, is not made clear in the title of the contract; the form is designated merely as a "Passenger Authorization." The written terms clearly state that the document is a release of liability. A person signing a document has a duty to read it and know the contents of the writing. State Farm Fire & Casualty Co. v. Home Ins. Co., 88 Wis.2d 124, 129, 276 N.W.2d 349 (Ct. App. 1979). Nevertheless it is not reasonably clear to the signer of a form entitled "Passenger Authorization" that the document would in reality be the passenger's agreement to release the Company (and others) from liability. Rather the title "Passenger Authorization" implies that only the Company is making the concessions and only the Company is bound. We conclude that in this case the release should have been conspicuously labelled as such to put the person signing the form on notice. Moreover, to prevent confusion under these circumstances, the passenger's release of the Company from liability should have been carefully identified and distinguished from the Company's authorization for a passenger to ride along. Identifying and distinguishing clearly between those two contractual arrangements could have provided important protection against a signatory's inadvertent agreement to the release.

[7]

Second, the release is extremely broad and allinclusive. It purports to excuse intentional, reckless, and negligent conduct not only by the Company but by [1018] another entity (Joplin Hiway, Inc.) and by all affiliated, associated, or subsidiary companies, partnerships, individuals, or corporations, and all other persons, firms or corporations. Further, although the passenger's release is combined with the Company's authorization to the plaintiff to ride in a specified Company vehicle during a specified period, the release does not refer to an injury the plaintiff may sustain while riding as a passenger in the specified Company vehicle during the specified time period. It purports to release the Company from liability for any and all injury to the plaintiff while the plaintiff is a passenger in any vehicle (not necessarily one owned by the Company) at any time and while the plaintiff is on any and all Company property at any time. The release, unlike the authorization, is not limited to a specified vehicle or to a specified time period. Had the Company intended that it be released from liability to the plaintiff while she was riding with her husband in the Company truck during the period the Company authorized, that is not what the release says. The very breadth of the release raises questions about its meaning and demonstrates its one-sidedness; it is unreasonably favorable to the Company, the drafter of the contract.

With respect to overly broad releases, three lines of cases have developed. In College Mobile Home Park & Sales v. Hoffmann, 72 Wis.2d 514, 241 N.W.2d 174 (1976), the court concluded that an exculpatory contract contravenes public policy when it would absolve the tortfeasor from any injury to the victim for any reason. In Arnold v. Shawano Co. Agr. Socy, 111 Wis.2d 203, 330 N.W.2d 773 (1983), the court remanded the summary judgment case to the circuit court to determine at trial whether the accident was within the contemplation of the parties to a release which the [1019] court characterized as broad and ambiguous. In contrast, in Dobratz v. Thomson, 161 Wis.2d 502, 468 N.W.2d 654 (1991), the court struck down on summary judgment a broad release on the ground that it was ambiguous and unclear, and that, as a matter of law, no contract was formed. The facts of the three cases are different and determined the outcomes. In regard to the issue of overly broad releases, however, the court's resolution of the effect of the overly broad releases in College Mobile Home Park & Sales and Dobratz is more pertinent to the very broad and inclusive release in the case at bar than is the court's treatment of the more limited release in the Arnold case.

[8]

Third, this contract is a standardized agreement on the Company's printed form which offers little or no opportunity for negotiation or free and voluntary bargaining. According to the record, when the Company forwarded the form to the plaintiff its cover letter did not advise her that the document was a release of all claims and did not advise her of the legal significance attached to her signing of the document. The employee handbook advised employees that Company authorization was needed for a passenger to ride along but did not advise employees that the passenger would have to release all claims against the Company.

The fact that a release is printed in a standardized form is not, by itself, enough to invalidate it. However, the plaintiff's lack of an opportunity for discussing and negotiating the contract is significant when considered with the breadth of the release. If her plans to ride with her husband were to go forward, the plaintiff simply had to adhere to the terms of the written form. While the Company had the time and resources to draft the provisions and plan their effect, the plaintiff did not. [1020] Had the plaintiff been afforded the opportunity to negotiate a release, she might have declined to release the Company from liability for intentional or reckless actions or the driver's negligence, or from liability for its defective equipment. Because the Company probably derives some benefit from allowing family members to join drivers on the road, such as improving employee morale, the Company might not necessarily have rejected such proposals out of hand.

As we have said, none of these factors alone would necessarily have warranted invalidation of the exculpatory contract. Under the circumstances in the case at bar, a combination of these factors demonstrate that adherence to the principle of freedom of contract is not heavily favored. The principle of tort law, to compensate persons for injuries resulting from unreasonable conduct of another, prevails. Accordingly, we conclude that the document contravenes public policy and is void and unenforceable. The decision of the court of appeals is reversed and the cause remanded for proceedings not inconsistent with this opinion.

By the Court.—The decision of the court of appeals is reversed and the cause remanded to the circuit court.

DAY, J. (dissenting).

Leo J. Richards (Mr. Richards) was a truck driver in the employ of Monkem Company, a trucking company. Jerilyn Richards (Mrs. Richards), his wife, wished to travel in the truck with Mr. Richards during one of his trips. The release at issue was signed by Mrs. Richards and her husband as a condition for allowing Mrs. Richards to travel with her husband while he drove a truck owned by Monkem Company. The release was broad, but it was clearly within the contemplation of the parties that the release [1021] would cover an injury to Mrs. Richards while riding as a passenger in the truck during an accident caused by her husband's negligence.

The majority opinion lists three reasons which purportedly require invalidation of the release as a matter of law. The reasons given are: (1) "the contract serves two purposes, not clearly identified or distinguished"; (2) "the release is extremely broad and allinclusive"; (3) "the release is in a standardized agreement printed on the Company's form, offering little or no opportunity for negotiation or free and voluntary bargaining." 181 Wis. 2d at 1011. I dissent as to each reason given by the majority opinion for invalidating this release, and I dissent as to their application in "combination."

I agree that exculpatory releases are not generally favored and, therefore, will be construed strictly. Arnold v. Shawano County Agr. Society, 111 Wis. 2d 203, 209, 330 N.W.2d 773 (1983); Dobratz v. Thomson, 161 Wis. 2d 502, 514, 468 N.W.2d 654 (1991). However, the fact that exculpatory releases are "not favored" does not mean that the majority should invent new "rules" without precedent or support. None of the reasons cited by the majority justifies summary invalidation of this release. This the majority admits. Nor is summary invalidation of this release justified by these "reasons" in some unspecified "combination." Whether in "combination" or not, reasons (1) and (3) are "rules" created in this opinion, and reason (2) does not lead to automatic invalidation. The whole is not more than the sum of the parts here. None of these rationales justifies invalidation of the release as a "matter of law," and the facts of this case neither warrant nor support the rules created by the majority, whether applied singly or in combination. I would hold [1022] that the release should be enforced to the extent it covers what was clearly contemplated by the parties when executing the release. The accident which occurred was clearly the kind of occurrence contemplated in the release.

The first reason given by the majority opinion for invalidating the release as against "public policy" is that the release "serves two purposes." 181 Wis. 2d at 1011. There is no such "rule," however. No legal authority is cited by anyone, neither the parties nor the majority opinion, to support such a rule. Quite simply, this "rule" appears for the first time in the majority opinion. Moreover, this new "rule" conflicts with legal precedent and serves no practical purpose.

The majority opinion disapproves the fact that the release serves not only to release claims against the company but that it also serves to document the company's authorization of a passenger. However, a release in the present circumstances is best viewed as condition that must be met before permission is granted. Since permission is not given until the condition is met, the release must necessarily serve two purposes. By definition, it serves both to release claims and to satisfy a condition for permission. The signed release merely documents that the condition has been met.

This practice is quite common. Many cases have enforced releases which serve both to release claims and to document that permission has been granted upon satisfaction of the condition. For instance, most jurisdictions routinely enforce releases which were the condition for granting permission to applicants and participants in races and other recreational activities. See, Hammer v. Road America, Inc., 614 F. Supp. 467, 470 (E.D.Wis. 1985), aff'd., 793 F.2d 1296 (7th Cir. [1023] 1986); Arnold, 111 Wis. 2d at 213 n.4. Both Arnold and Merten v. Nathan, 108 Wis. 2d 205, 321 N.W.2d 173 (1982), involved releases which then served as conditions for participation. Neither of those opinions indicates any problem with that fact. Quite simply, there is no rule that a release "serving two purposes" must be invalid. There is no rule that a release "serving two purposes" is even presumptively invalid.

The only way that "serving two purposes" could lead to invalidation of a release is if "serving" the second purpose made an otherwise clear release unclear. For instance, one can conceive of a situation in which the addition of information extraneous to the release is interwoven with the language of the release in such a way that the release itself is made unclear. The release would therefore be unenforceable to the extent it was rendered unclear. see Arnold, 111 Wis. 2d at 211. Problems would also arise if a phrase or two containing release language were buried within a document otherwise devoted to matters unrelated to the release, so that it became unclear that a release was even contained within the document. See, e.g. Restatement (Second) of Torts § 496B, Comment C. Neither of these situations is present here, however.

Mrs. Richards complained that the release was invalid as a matter of law because the release document also served to satisfy federal requirements for information about passengers authorized to accompany truck drivers. However, as discussed above, there is no rule of law which suggests that a signed release may not be used to serve any number of purposes. Nor is there any reason why a document containing a release may not solicit other information from the signatory so long as the release itself remains clear.

[1024] The majority opines that "to prevent confusion under these circumstances, the passenger's release of the Company from liability should have been carefully identified and distinguished from the Company's authorization for a passenger to ride along." 181 Wis. 2d at 1017. However, besides the fact that there was no evidence of confusion in the record, there is no basis in fact or in law to even claim confusion in this case.

First, the release itself was clearly a release by its terms, and its function as a release was not obscured by the addition of a separate section asking for identification information about the passenger.

The "PASSENGER AUTHORIZATION" is a one-page document consisting of two sections. The first section is entitled: "FULL AND FINAL RELEASE ..." followed by the body of the release. The body of the release occupies approximately § 23 of the page and is written in capital lettering. The word "RELEASE" appears no less than four times in the release. In fact, no other single word with more than four letters appears more often in the release than the word "RELEASE"; only the name "MONKEM COMPANY" appears as many times as the word "RELEASE" in the release. The title to the release uses the word "RELEASE"; the final sentence before the signature portion of the release uses the word "RELEASE"; and the word "RELEASE" appears prominently in both of the two intervening paragraphs of the release. The final sentence of the release, located just above the space where the passenger applicant and driver are to sign, states: "THIS PERMISSION IS GIVEN ONLY UPON FULL UNDERSTANDING OF THE ABOVE RELEASE AND IS ACCEPTED AND EXECUTED AND ACKNOWLEDGED BY SIGNATURE OF THE PERSON BELOW:". Both Mrs. Richards and her husband [1025] signed the release in the appropriate space immediately following that statement.

The second section of the document, entitled, "PASSENGER INFORMATION," is located in the lower right hand corner of the document. It consists of entry blanks for the height, weight, hair color, eye color, driver's license number and social security number of the passenger. It occupies less than two square inches of space on the document. This section is clearly neutral, if not innocuous.

Any claim that the presence of the passenger information section could confuse anyone into believing that the rest of the document ceased to be a release is completely untenable. It is especially untenable when alleged by someone such as Mrs. Richards who did not even read or fill-out the passenger information section. See, footnote number 1, infra.

The majority concedes that the facts relevant to the determination of the validity of the release are not in dispute. 181 Wis. 2d at 1011. Those undisputed facts include the following:

Mrs. Richards claims in her brief that it was "undisputed that despite reasonable diligence by the plaintiff to find out the purpose of this agreement, she did not know and was not advised that the agreement was an exculpatory contract." And she claims that she "went through efforts to find out the reason for the agreement." Her "efforts," however, evidently did not include reading the release itself. Mrs. Richards' deposition testimony indicates that she did not read much of the document and did not read carefully those parts she may have read.^[1] Her efforts did not include asking the company any questions or even indicating any dissatisfaction [1026] with the release. Her efforts did not [1027] include reading the memo from the company carefully, and her efforts did not include contacting the Director of Risk Management referred to in the employee [student] handbook. Thus, when the majority opinion argues that "it is not reasonably clear to the signer of a form entitled `Passenger Authorization' that the document would in reality be the passenger's agreement to release the Company (and others) from liability," 181 Wis. 2d at 1017 it refers to no more than Mrs. Richards herself remembers reading carefully, namely, the first two words at the top of the document.

[1028] I agree with the court of appeals when it concludes that, "Jerilyn's assertions that she did not understand the language of the exculpatory contract but signed it anyway are insufficient to invalidate its effect. Failure to read or understand a contract will generally not affect its validity because a court will not protect a person who fails to take reasonable steps for her own protection." Richards v. Richards, 173 Wis. 2d 908, 499 N.W.2d 301 (Table), 1993 WL 8053 (Wis. App.), p. 2, (Unpublished Opinion). There is no reason why this court should credit Mrs. Richards' claim that she was or even could have been somehow confused about this being a release.

Nor is it credible on the facts as alleged to suggest or imply that Mr. Richards was somehow confused. As his deposition indicates, he knew that the Passenger Authorization contained a release. He knew that the release was required because Monkem Company was worried about accidents involving passengers. He admits that he did not read the release before signing it, and he admits that he did not ask anyone at Monkem Company to clarify it for him. There is no clear evidence that he read the student handbook carefully as to this issue, much less that he was, or in any way could have been, confused that this was a release. Rather he admits that all drivers knew ahead of time about the requirements.^[2] Thus, clearly, if Mrs. Richards [1029] was confused because she relied upon Mr. Richards' explanations of the release without really reading the release and without asking the company for clarification, that is her fault, and not any confusion caused by Monkem or the structure or wording of the document, as a matter of law.

The second reason given for invalidation of the release by the majority opinion is that the release is "extremely broad and all-inclusive." 181 Wis. 2d at 1011. I agree that the release is very broad. However, it is not the law in Wisconsin that just because a release is "extremely broad and all-inclusive" that it is automatically [1030] void as against public policy. This court held in Arnold, 111 Wis. 2d at 211, that the rule on broad and general exculpatory releases is as follows: "Exculpatory agreements that are broad and general in terms will bar only those claims that are within the contemplation of the parties when the contract was executed."^[3]

It must be emphasized that Mrs. Richards does not argue that the release was so obtuse that it could not be understood. Rather, Mrs. Richards argues that the release should be invalid because it is overbroad. Mrs. Richards complains that, "[i]t was simply impossible for the parties to contemplate the scope and breadth of the purported damages and actions that they were releasing." That may be true, but this case does not involve any bizarre hypotheticals, and the rule is that the parties will be held to what was clearly contemplated in the situation.

[1031] Thus the proper question in this context is what was clearly contemplated by the parties. Was it clearly contemplated that the release would cover Monkem? Was it clearly contemplated that the release would cover an accident in which Mrs. Richards was injured while riding as a passenger in the truck? And was it clearly contemplated that this release would prevent Mrs. Richards from recovering against the company for acts of negligence caused by her husband while driving Monkem's truck? The answer to each of these questions is "yes."

These questions may be determined as a matter of law. In Plummer v. Leonhard, 44 Wis. 2d 686, 692, 172 N.W.2d 1 (1969), citing 76 C.J.S. Release § 72 (1952), this court noted that normally the determination of the intent of the parties to a release, and the scope of a release, are questions of fact for the jury. However, the meaning, construction, and legal effect of a release are questions for determination by the court, where there is no ambiguity in the instrument, or where the evidence in connection with the release is undisputed. Specifically, the construction of a written release as operating to discharge particular claims is a determination made by the court. See, 76 C.J.S. Release § 72 (1952); and Arnold, 111 Wis. 2d at 212.

As to the first question, Mrs. Richards admits that the release is clear in its intent to release liability as to Monkem. "Obviously," Mrs. Richards writes in her brief, "the release itself purports to excuse negligence not only on behalf of Leo Richards' employer, Monkem Company, but in addition purports to release liability on behalf of some separate entity known as `Joplin Hiway, Inc.'" Her complaint at that point is that the identity of Joplin Hiway, Inc., etc., is not given, and therefore the scope of the release is overbroad. I might [1032] agree that the enforcement of the release as to unknown or undefined entities may or may not be permissible under the terms of this release. That is an open question. However, the fact that the release "obviously" covered Monkem means that was clearly contemplated by the parties and should therefore be enforced to that extent.

As to the second question, Mrs. Richards argued that the broad language of the release could cover an almost unlimited number of bizarre hypothetical situations and is therefore invalid. However, again, while the release will not be extended beyond those situations clearly contemplated by the parties, the rule of Arnold is that it will be applied to those situations clearly contemplated. The release clearly covers the situation in which the passenger is injured while riding in the truck, and this is precisely what happened to Mrs. Richards.

As to the third question, I agree with the court of appeals and conclude that it was clearly contemplated that the release obviously covered claims against the company based upon the spouse's negligent driving. Richards v. Richards, 173 Wis. 2d at 908, 1993 WL 8053 (Wis. App.), p. 2, (Unpublished Opinion).

Applying the rule of Arnold, the release should be enforced to the extent it covers situations clearly contemplated by the parties. I agree with the circuit court and court of appeals that Mrs. Richards clearly contemplated that the release would cover an injury sustained while Mrs. Richards was riding in the truck as a passenger during an accident caused by her husband's negligence, and that Monkem, at least, would be covered.

How and why the majority avoids the rule of Arnold is unclear. Arnold establishes that exculpatory [1033] clauses, while not favored, will be enforced to the extent they cover situations clearly contemplated by the parties executing the release. Accordingly, the fact that the release in Arnold was broad and ambiguous did not result in invalidation of the release. Instead, the court in Arnold remanded the summary judgment case to the circuit court to determine whether the specific accident which occurred was within the contemplation of the parties to the release.

The court in Arnold did not say that all questions of what was clearly contemplated must be returned to the circuit court when a release is broad in its terms. Quite to the contrary, the court explicitly noted that certain types of situations may reasonably be concluded were contemplated by the parties. The release in Arnold concerned the activity of racing. The court noted that "it would be reasonable to assume that this exculpatory contract was intended to preclude liability for such things as negligent maintenance of the track or the negligent driving of another driver participant ...." Arnold, 111 Wis. 2d at 212. The court's only concern was that it was unclear whether "rescue operations" were to be covered. Nor did the court say that rescue operations could not be covered by a broad release; rather it held only that it was not clear whether that particular type of situation had been contemplated and remanded for a factual determination on that question.

Precisely the same analysis should be applied to the present case. Clearly the parties here must be held to have contemplated that the release would cover injuries sustained by Mrs. Richards while riding as a passenger during an accident caused by her husband's negligence. That much was clearly contemplated and should be enforced to that extent. Had Mrs. Richards [1034] been injured in some other way, then we would have to confront whether that situation was clearly contemplated or not. But that is not our case. Thus regardless of how many hypotheticals are engaged to avoid Arnold, that case and the cases subsequent to Arnold still stand for the rule that exculpatory contracts will be enforced to the extent they cover situations clearly contemplated by the parties. Neither Dobratz nor any other decision has repealed that basic rule.

The majority cites Dobratz for the statement that "this court will not favor an exculpatory contract that is broad and general in its terms." I agree. However, Dobratz does not say that broad and general releases are invalid. Quite to the contrary, Dobratz, 161 Wis. 2d at 521, cites to Arnold and explicitly endorses the analysis and conclusion of Arnold.

Nor does College Mobile Home Park & Sales provide a legitimate basis to avoid the rule of Arnold. The majority claims that College Mobile Home Park & Sales is "more pertinent" to the present situation than is Arnold. 181 Wis. 2d at 1011. However, the majority does not explain how or why. College Mobile Home Park & Sales cannot be more "pertinent" than Arnold, neither in fact nor in law. On the facts, College Mobile Home Park & Sales concerns the specialized area of landlord-tenant law, an area now covered by statute. The release in Arnold, which is a condition of permission for a discretionary activity and which concerns injuries occurring while riding in a vehicle, is clearly more analogous to the present situation. Likewise, in the law, Arnold supersedes College Mobile Home Park & Sales. Arnold establishes the rule that broad exculpatory releases will be enforced to the extent they cover situations clearly contemplated by the parties. It refers to College Mobile Home Park & Sales as an example of [1035] landlord-tenant law and cites that case and others as consistent with the rule promulgated in Arnold. Accordingly, College Mobile Home Park & Sales does not overrule or displace the rule established in Arnold.

The third reason given for invalidation of this release by law is that "the release is in a standardized agreement printed on the Company's form, offering little or no opportunity for negotiation or free and voluntary bargaining." 181 Wis. 2d at 1011. This "reason" is, of course, actually a combination of several factors, none of which supports a "rule" for invalidation by law.

First, the suggestion that there is something inherently or presumptively wrong with releases written in standardized forms is without foundation. There is plenty of authority that standardized contracts will be read strictly and will be construed against the drafter, etc. see e.g. Restatement (Second) of Torts § 496B, Comments C and D; Restatement (Second) of Contracts § 195, Comment B. However, there is no authority cited that a standardized form is inherently or even presumptively invalid in this context or any other. Again, this "rule," if it is to be that, appears for the first time in the majority opinion.

Such a rule, which would effectively ban standardized releases, also conflicts with prior case law. Many, if not all, of the cases in which releases have been enforced involve pre-printed and standardized forms. For instance, in Arnold, 111 Wis. 2d at 211, this court specifically commented on the standardized nature of the exculpatory contract in that case. Significantly, the court did not take issue with the fact that the form was standardized. The problem in Arnold was lack of clarity in the terms of the clause, not the fact that the form was standardized. There is nothing in Arnold to suggest [1036] that the standardized nature of the release was itself the source of reservations, much less that standardized agreements are somehow presumptively invalid.

Nor does the proposed rule against standardized forms have a practical purpose. The majority opinion explains that "[w]hile the Company had the time and resources to draft the provisions and plan their effect, the plaintiff did not." 181 Wis. 2d at 1007. I find no legal or practical reason why the company should not take the "time and resources to draft the provisions and plan their effect." We should hope that all drafters would use such circumspection. Is it seriously suggested that the release would be more acceptable had it been improvised hurriedly on a piece of blank paper? Would public policy be favored if the company could prove it gave no thought to the effect of the provisions or if it could prove it had incorrectly planned the effect of the provisions? Again, assuming that public policy is not otherwise violated, all that is required is that the release be clear. It will be enforced to the extent it covers what was clearly contemplated by the parties.

Second, the imposition of a "bargaining" requirement has no legal foundation in this context and makes little practical sense. It is true that the courts will sometimes compensate for the weaker bargaining power of certain actors in contract cases. However, these cases are typically limited to special situations and special areas of the law. For instance, as this court explains in Arnold, 111 Wis. 2d at 210:

"There are a variety of other situations in which courts have refused to enforce exculpatory contracts on grounds of public policy. They include: excusing a party from tort liability for harm caused intentionally or recklessly; excusing an employer [1037] from liability to an employee for injury in the course of his employment; relieving a party charged with performing a service of great importance to the public; and excusing a party invoking exculpation who possesses a decisive advantage in bargaining strength."

Arnold does include unequal bargaining strength as a factor. However, the source for this analysis is § 195 of the Restatement (Second) of Contracts which does not list unequal bargaining strength as an independent factor. Similarly, the Restatement (Second) of Torts § 496B, Comment J, also mentions the "disparity of bargaining power," but limits this factor to special contexts in which there are other factors involved, for instance, when there is no "free choice" on the part of the plaintiff owing to the "necessities" and "exigencies" of the situation.

No cases are cited—from any jurisdiction—which suggest that the mere fact that the parties to a contract possess unequal bargaining strength means that no exculpatory clauses or releases are permissible. When this court has applied the unequal bargaining strength rationale, as in Discount Fabric House v. Wis. Tel. Co., 117 Wis. 2d 587, 345 N.W.2d 417 (1984), it rejected that view. In Discount Fabric House, the unequal bargaining factor was explicitly linked to (and limited to) the public service context of the situation:

This exculpatory clause in this private contract is against public policy in that the parties are not on equal bargaining terms and the telephone company has created a public interest in the publication of the yellow pages which requires that the telephone company perform its private duty to the ad subscriber without negligence or be held for damages. (emphasis supplied). Id. 117 Wis. 2d at 600.

[1038] The court in Discount Fabric House emphasized the "indispensable" nature of the service:

In publishing the yellow pages the telephone company is engaged in performing a service of great, if not essential, importance to the public and it holds itself out as willing to give reasonable public service to all who apply to place ads in the yellow pages. The telephone company possesses a decisive advantage of bargaining strength. Id. 117 Wis. 2d at 596.

Finally, the court in Discount Fabric House, 117 Wis. 2d at 600-601, cited with approval a case which expressed the rule as follows:

There are then two inquiries in a case [involving unequal bargaining strength]: (1) What is the relative bargaining power of the parties, their relative economic strength, the alternative sources of supply, in a word what are their options?; (2) Is the challenged term substantively reasonable? ... Thus merely because the parties have different options or bargaining power, unequal or wholly out of proportion to each other, does not mean that the agreement of one of the parties to a term of a contract will not be enforced against him; if the term is substantively reasonable it will be enforced. By like token, if the provision is substantively unreasonable, it may not be enforced without regard to the relative bargaining power of the contracting parties. (emphasis supplied).

Accordingly, then, none of these rationales applies to the present context. Monkem is not providing a public service or fulfilling a public duty in permitting Mrs. Richards to ride with her husband. Monkem is not entering a market transaction. Nor is this in any sense a "necessity" for Mrs. Richards. The majority opinion [1039] laments that, "[i]f her plans to ride with her husband were to go forward, the plaintiff simply had to adhere to the terms of the written form." 181 Wis. 2d at 1019. However, the mere fact that she made "plans" to do something which was not authorized cannot by itself inject any requirement for "bargaining." Nor can the mere fact that one party sets a condition mean that unequal bargaining power has been employed. The company is under no obligation to allow any passengers. It is willing to entertain applications upon request, but only if the spouse-passengers sign releases of claims against the company for injuries they might sustain while being a passenger. Such a requirement is neither unfair nor surprising.

As such, this newly created "bargaining" requirement, if it be that, is issued without any ascertainable standards. The majority has failed to explain when or why the newly created bargaining requirement is to be applied and the opinion does not begin to explain how it is to be applied. Is it applied because of something Monkem has done? At one point the majority implies that the bargaining requirement is to be applied because the company "probably derives some benefit" from a situation. However, besides the fact that this is pure speculation (Mrs. Richards never claims this), is there any situation in which one could not speculate that one party or another "probably derives some benefit"? Clearly such a rule would know no boundaries. And, again, there is no law cited from any jurisdiction or source suggesting anything even close to a "rule" that just because someone "probably derives some benefit" that that party must "afford" the other party an "equal opportunity to negotiate."

Perhaps the newly created bargaining requirement is applied because of something Mrs. Richards [1040] might have done—assuming she had read the release, of course. At one point the majority suggests that, "[h]ad the plaintiff been afforded the opportunity to negotiate a release, she might have declined to release the Company from liability for intentional or reckless actions ..." 181 Wis. 2d at 1020. Ironically, however, such claims would not need to be "declined" because they are unenforceable anyway. There is already a rule against releasing claims for intentional or reckless actions. That rule is to decline enforcement in those instances, not to invalidate the release as a whole. If Mrs. Richards had been injured by defective equipment, then, we would have to address the question of whether that type of risk was clearly contemplated by the parties or not. However, the mere fact that one can think of some hypothetical which might not be covered does not mean that the release as a whole is invalid. Were that so, the rule in Arnold would have no meaning.

Both practitioner and court are left without a clue as to what it means to "afford" Mrs. Richards "the equal opportunity to negotiate a release." First, it is unclear when, why or how this "opportunity to negotiate" should be "afforded." Is the company to ask all spouse-applicants if they wish to negotiate? On the facts of the present case it makes little sense to say that Mrs. Richards was not "afforded" an "opportunity" when she failed to really read the release and never asked anyone at the company any questions about the release and did not even indicate any dissatisfaction with the release to the company. How and why can the majority imply that the company somehow failed to "afford" Mrs. Richards "opportunity" when she never requested any such "opportunity"?

[1041] Second, what does it mean to "negotiate" in this context, and how would the company ensure that the negotiations were "equal"? Are we to assess the competency of Mrs. Richards to negotiate and assume that any deficiencies must somehow be compensated for in substance by the company? What if Mrs. Richards is offered an entire brochure on negotiation skills but fails to read it, just as she failed to really read the one page release? Or is it suggested that the company appoint someone to help Mrs. Richards draft a counter-proposal? Must the company then negotiate—in good faith, of course—about which terms of its own release it might be willing to drop in "negotiations"? And what if, despite very skilled and fair negotiations on both sides, Mrs. Richards nevertheless agrees to accept the full release. The majority opinion implies that this result would be presumptively suspect.... The questions and problems these new "rules" raise are without visible end or solution.

Third, I disagree with majority's comments about the cover letter and the employee handbook. The majority opinion does not claim that the cover letter or the employee (student) handbook were in any way affirmatively misleading. However, the majority opinion does suggest that one or both of these materials extraneous to the release should have explained the release to Mrs. Richards by law. The majority opinion states that the "cover letter did not advise [Mrs. Richards] that the document was a release of all claims and did not advise her of the legal significance attached to her signing of the document." 181 Wis. 2d at 1019. Likewise, the majority opinion complains that the "employee handbook advised employees that Company authorization was needed for a passenger to ride along but did not advise employees that the passenger would [1042] have to release all claims against the Company." 181 Wis. 2d at 1019.

Thus, as written, the majority opinion implies that an otherwise clear standardized clause would require non-standardized extraneous matter to explain the contents and effect of the clause. That is not the law. The cover letter and employee handbook are extraneous to the release. As such, they are relevant only to the extent they could either clarify or confuse the original release. If the release is itself clear, then, there might be a question of whether the cover letter or employee handbook, when read together with the clause, made the release unclear. However, on the facts of this case, both the cover letter and the handbook were neutral and factually accurate.^[4] There is no law that a cover letter which accompanies a release must reemphasize that the document it accompanies is a release when the document itself makes that clear. Nor is there any requirement that a cover letter explain the "legal significance" of the document it accompanies when the document itself is clear. Finally, there is no reason that the employee handbook must assume this responsibility, especially since it was not presented to Mrs. Richards, and she did not read it carefully, if at all. Thus, so long as these extraneous materials do not [1043] detract from the release, then the release stands on its own.

Finally, the majority opinion attempts to characterize this result as necessary to "accommodate" the "tension between the principles of contract and tort law" which is inherent in exculpatory agreements. 181 Wis. 2d at 1016. The principle of tort law "prevails" in this instance, the majority opinion explains, because we should "impos[e] liability on persons whose conduct creates an unreasonable risk of harm." (emphasis supplied) 181 Wis. 2d at 1015. However, in the present context, it is not Monkem who "creates" an unreasonable risk of harm, but rather it is Mrs. Richards who brought the risk into being by requesting authorization to be a passenger in the truck, and it was Mrs. Richards' husband who caused the accident through his own negligence.^[5] Monkem company was only attempting to protect itself from claims in which a passengerspouse sues the employer-owner on the basis of the spouse-driver's negligence. Since allowing passengers is entirely within the discretion of the company and is not favored generally by Federal law (hence the authorization requirement), it surely is not against public policy for a company in Monkem's position to demand a release of claims related to being a passenger before it gives authorization for the spouse-passenger to accompany the spouse-driver. Afterall, Monkem was [1044] doing Mr. & Mrs. Richards a favor by granting permission for Mrs. Richards to accompany her husband in the truck.

The sweeping condemnation of this release by the majority opinion, however, coupled with the refusal to enforce even those aspects of the release which were "obvious" to even Mrs. Richards, leaves companies such as Monkem clueless as to how one might craft a valid release. After reading the majority opinion, one might conclude that a valid release may be executed only if the document is not standardized, only if the company has not planned the effect of the document, only if the document says "RELEASE" more than once in each paragraph, only if a copy of the release and an explanation of the release are included in all correspondence to the prospective signatory and in all other materials such as student handbooks which might fall into the hands of a prospective spouse-passenger applicant, and, finally, only if the company provides for real and effective "bargaining" for spouse-passenger applicants.

Because the majority opinion ignores our past precedents and creates new "rules" that are in my opinion unnecessary and unwise, I dissent.

I am authorized to state that JUSTICES STEINMETZ and WILCOX join in this dissenting opinion.

[1]The following are excerpts from Mrs. Richards' deposition. (Record, 12:26-27, 29-30).

Q: And you read the complete document from top to bottom?

A: No.

Q: You didn't read the complete document. What did you read and what did you not read?

A: That it was basically it. From the top you can tell and from the memo it was a Passenger Authorization and down here that I needed to make a signature where my name was typed.

Q: Did you read the first paragraph commencing with `Full and final release' ending with the word `future'?

A: I may have.

Q: And did you read the second paragraph commencing with `I/we' ending with `property'?

A: I didn't understand it enough to read it.

Q: Well, did you read it?

A: I can't recall for sure if I read it or not, the whole thing.

Q: Did you read the third paragraph commencing with the words `It is expressly' ending with the words `consequences thereof?

A: I don't recall if I read what exact parts for sure of all or any of the document.

Q: All right. Likewise, Paragraph 4 commencing with the words `Permission is granted' ending with the words `person below:'?

[Mrs. Richards' attorney]: Okay. Same answer as previously, that you don't know if you read it or not?

A: Yes. I don't know....

Q: Do you know who inserted the information concerning the passenger that's on the right-hand portion of the lower third of the document?

A: No, I don't.

Q: Is that your handwriting?

A: I do not believe that it is....

Q: Did you read that it was a release of all claims that you may have against Monkem Company for riding as a passenger?

A: I'm not sure.

Q: Did you understand that this authorization was also a release of future causes of action or future claims that you may have against Monkem Company for riding as a passenger or being injured while riding as a passenger with Monkem?

A: I didn't understand it to mean that.

Q: Did you seek any assistance prior to signing this with regard to the portions that you've indicated that you did not understand?

A: No, I did not.

Q: So even though you didn't understand some of the contents of this authorization, you went ahead and signed it anyway?

A: Yes....

Q: Did you discuss with Mr. Richards, your husband, the fact that [the Passenger Authorization] not only released or authorized you to ride as a passenger but released claims that you may have for being injured while riding as a passenger with Mr. Richards in a Monkem vehicle?

A: I did mention to him that I didn't understand it, and he had talked to someone, a secretary or someone at Monkem, and she just said that it just needed to be signed before I could go with him was what I understood from what he had told me from the conversation with her.

Q: Did you talk to the secretary?

A: No, I did not.

[2]The following are excerpts from Mr. Leo J. Richards' deposition. (Record, 11:23-24, 26-27).

Q: Was reference made to [the passenger] authorization [form]?

A: Well, we knew by federal law that you had to have a rider's permit for any passenger, and they mentioned that we would have to get one and that the only passengers they would authorize was immediate family.

Q: And did [Monkem Company] indicate a purpose for that authorization?

A: Yeah.

Q: What was that purpose that was communicated to you?

A: Well because they have a high percentage of accidents of passengers getting in and out of the vehicle, and they had to sign the release, and they also had to have a doctor's statement that they're physically able to climb in and out of the vehicle....

Q: Did the secretary in the Safety Office [at Monkem Company] explain the purpose that they—or the reason that they required [the passenger authorization] to be executed?

A: No. No. All drivers know that you have to have a Passenger Authorization. Even if you own the vehicle yourself, you still have to make one out.

Q: Prior to signing that agreement or that authorization did you have an opportunity to read it?

A: I glanced at it, but it's all legal mumbo jumbo, you know....

Q: Okay. Did you question anybody concerning its contents prior to signing it?

A: No.

Q: So you signed the agreement even though you didn't understand what it said?

A: Well, the only thing I looked at was to see that my truck number and stuff was right, and that's about all....

[3] Arnold was overruled on other grounds, Green Springs Farms v. Kersten, 136 Wis. 2d 304, 317, 401 N.W.2d 816 (1987). The rule as concerns overbroad exculpatory clauses in Arnold was reaffirmed in Dobratz, 161 Wis. 2d at 523, 525. Dobratz, at 523, holds that no contract was formed in that case owing to the uncertainty and ambiguity of the document. It distinguishes that situation from cases involving overbroad exculpatory clauses. Dobratz, at 525, explicitly approves of Arnold and Trainor v. Aztalan Cycle Club, Inc., 147 Wis. 2d 107, 432 N.W.2d 626 (Ct. App. 1988) in how they handle overbroad release analysis. Nor does College Mobile Home Park & Sales v. Hoffmann, 72 Wis. 2d 514, 241 N.W.2d 174 (1976) stand for the proposition that broad leases in any or all subject areas may be held invalid just because they are broad. It specifically sets its holding in the framework of the public policy in landlord-tenant law, and has been interpreted by subsequent cases as an example of landlord-tenant law. see Arnold, 111 Wis. 2d at 210.

[4] The cover letter was addressed to Mrs. Jerilyn Richards and read as follows: "Both of you should sign where indicated on the attached form. Please return the yellow copy in the enclosed envelope to this office and keep the original on the truck with you at all times. If you have any questions, please contact us." The entry in the employee handbook was merely stating that a passenger authorization was possible. It described the eligibility requirements and made clear that the process of applying would be handled through the Director of Risk Management of the company.

[5] It was noted in Discount Fabric House, 117 Wis. 2d at 600, that exculpatory clauses are not favored because "such provisions tend to induce a want of care ..." However, in this instance, there is no hint, no allegation, and certainly no showing, that Monkem Company's level of care diminished in connection with the release or otherwise. Nor would there be any incentive to reduce the level of care because the company would still be liable to all others, and to the driver, in particular.

[149] Fogel and Lamber, P.A. by Dennis M. Lamber and Kenneth J. Love and Gage and Mathers, Ltd. by G. David Gage, Phoenix, for plaintiff-appellant.

Snell & Wilmer by Barry D. Halpern, John C. West, Bob J. McCullough, Robert H. Oberbillig, Phoenix, for defendant-appellee Abortion Services of Phoenix.

The Langerman Law Offices by Amy G. Langerman, Phoenix, for amicus curiae Ariz. Trial Lawyers Ass'n.

Bob Gibbons, Austin, Tex., and Jeffrey R. White, Washington, D.C., for amicus curiae Ass'n of Trial Lawyers of America.

Snell & Wilmer by Lawrence F. Winthrop, Phoenix, for amicus curiae Ariz. Medical Ass'n.

MOELLER, Vice Chief Justice.

STATEMENT OF THE CASE

Melinda Kay Broemmer (plaintiff) asks this court to review a court of appeals opinion that held that an "Agreement to Arbitrate" which she signed prior to undergoing a clinical abortion is an enforceable, albeit an adhesive, contract. Broemmer v. Otto, 169 Ariz. 543, 821 P.2d 204 (1991). The opinion affirmed the trial court's grant of summary judgment in favor of Abortion Services of Phoenix and Dr. Otto (defendants). Because we hold the agreement to arbitrate is unenforceable as against plaintiff, we reverse the trial court and vacate in part the court of appeals opinion. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

FACTS AND PROCEDURAL HISTORY

In December 1986, plaintiff, an Iowa resident, was 21 years old, unmarried, and 16 or 17 weeks pregnant. She was a high school graduate earning less than $100.00 a week and had no medical benefits. The father-to-be insisted that plaintiff have an abortion, but her parents advised against it. Plaintiff's uncontested affidavit describes the time as one of considerable confusion and emotional and physical turmoil for her.

Plaintiff's mother contacted Abortion Services of Phoenix and made an appointment for her daughter for December 29, 1986. During their visit to the clinic that day, plaintiff and her mother expected, but did not receive, information and counselling on alternatives to abortion and the nature of the operation. When plaintiff and her mother arrived at the clinic, plaintiff was escorted into an adjoining room and asked to complete three forms, one of which is the agreement to arbitrate at issue in this case. The agreement to arbitrate included language that "any dispute aris[ing] between the Parties as a result of the fees and/or services" would be settled by binding arbitration and that "any arbitrators appointed by the AAA [American Arbitration Association] shall be licensed medical doctors who specialize in obstetrics/gynecology." [150] The two other documents plaintiff completed at the same time were a 2-page consent-to-operate form and a questionnaire asking for a detailed medical history. Plaintiff completed all three forms in less than 5 minutes and returned them to the front desk. Clinic staff made no attempt to explain the agreement to plaintiff before or after she signed, and did not provide plaintiff with copies of the forms.

After plaintiff returned the forms to the front desk, she was taken into an examination room where pre-operation procedures were performed. She was then instructed to return at 7:00 a.m. the next morning for the termination procedure. Plaintiff returned the following day and Doctor Otto performed the abortion. As a result of the procedure, plaintiff suffered a punctured uterus that required medical treatment.

Plaintiff filed a malpractice complaint in June 1988, approximately 1 1/2 years after the medical procedure. By the time litigation commenced, plaintiff could recall completing and signing the medical history and consent-to-operate forms, but could not recall signing the agreement to arbitrate. Defendants moved to dismiss, contending that the trial court lacked subject matter jurisdiction because arbitration was required. In opposition, plaintiff submitted affidavits that remain uncontroverted. The trial court considered the affidavits, apparently treated the motion to dismiss as one for summary judgment, and granted summary judgment to the defendants. Plaintiff's motion to vacate, quash or set aside the order, or to stay the claim pending arbitration, was denied.

On appeal, the court of appeals held that although the contract was one of adhesion, it was nevertheless enforceable because it did not fall outside plaintiff's reasonable expectations and was not unconscionable. Following the court of appeals opinion, the parties stipulated to dismiss the Ottos from the lawsuit and from this appeal. We granted plaintiff's petition for review.

ISSUE

Plaintiff presents 5 potential issues in her petition for review. Some of the parties and amici have urged us to announce a "bright-line" rule of broad applicability concerning the enforceability of arbitration agreements. Arbitration proceedings are statutorily authorized in Arizona, A.R.S. §§ 12-1501 to -1518, and arbitration plays an important role in dispute resolution, as do other salutary methods of alternative dispute resolution. Important principles of contract law and of freedom of contract are intertwined with questions relating to agreements to utilize alternative methods of dispute resolution. We conclude it would be unwise to accept the invitation to attempt to establish some "bright-line" rule of broad applicability in this case. We will instead resolve the one issue which is dispositive: Under the undisputed facts in this case, is the agreement to arbitrate enforceable against plaintiff? We hold that it is not.

DISCUSSION

I. The Contract is One of Adhesion

When the facts are undisputed, this court is not bound by the trial court's conclusions and may make its own analysis of the facts or legal instruments on which the case turns. Tovrea Land & Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 114, 412 P.2d 47, 51 (1966). A.R.S. § 12-1501 authorizes written agreements to arbitrate and provides that they are "valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract." Thus, the enforceability of the agreement to arbitrate is determined by principles of general contract law. The court of appeals concluded, and we agree, that, under those principles, the contract in this case was one of adhesion.

An adhesion contract is typically a standardized form "offered to consumers of goods and services on essentially a `take it or leave it' basis without affording the consumer a realistic opportunity to bargain and under such conditions that the consumer cannot obtain the desired product or services except by acquiescing in the form contract." Wheeler v. St. Joseph Hosp., 63 Cal. App.3d 345, 356, 133 Cal. Rptr. 775, 783 [151] (1976) (citations omitted); see also Burkons v. Ticor Title Ins. Co. of Cal., 165 Ariz. 299, 311, 798 P.2d 1308, 1320 (App. 1989), rev'd on other grounds, 168 Ariz. 345, 813 P.2d 710 (1991) (essence of adhesion contract is that it is offered to consumers on essentially a "take it or leave it" basis). The Wheeler court further stated that "[t]he distinctive feature of a contract of adhesion is that the weaker party has no realistic choice as to its terms." 63 Cal. App.3d at 356, 133 Cal. Rptr. at 783 (citations omitted). Likewise, in Contractual Problems in the Enforcement of Agreements to Arbitrate Medical Malpractice, 58 Va.L.Rev. 947, 988 (1972), Professor Stanley Henderson recognized "the essence of an adhesion contract is that bargaining position and leverage enable one party `to select and control risks assumed under the contract.'" (quoting Friedrich Kessler, Contracts of Adhesion — Some Thoughts About Freedom of Contract, 43 Colum.L.Rev. 629 (1943)).

The printed form agreement signed by plaintiff in this case possesses all the characteristics of a contract of adhesion. The form is a standardized contract offered to plaintiff on a "take it or leave it" basis. In addition to removing from the courts any potential dispute concerning fees or services, the drafter inserted additional terms potentially advantageous to itself requiring that any arbitrator appointed by the American Arbitration Association be a licensed medical doctor specializing in obstetrics/gynecology. The contract was not negotiated but was, instead, prepared by defendant and presented to plaintiff as a condition of treatment. Staff at the clinic neither explained its terms to plaintiff nor indicated that she was free to refuse to sign the form; they merely represented to plaintiff that she had to complete the three forms. The conditions under which the clinic offered plaintiff the services were on a "take it or leave it" basis, and the terms of service were not negotiable. Applying general contract law to the undisputed facts, the court of appeals correctly held that the contract was one of adhesion.

II. Reasonable Expectations

Our conclusion that the contract was one of adhesion is not, of itself, determinative of its enforceability. "[A] contract of adhesion is fully enforceable according to its terms [citations omitted] unless certain other factors are present which, under established legal rules — legislative or judicial — operate to render it otherwise." Graham v. Scissor-Tail, Inc., 28 Cal.3d 807, 171 Cal. Rptr. 604, 611, 623 P.2d 165, 172 (1981) (footnotes omitted). To determine whether this contract of adhesion is enforceable, we look to two factors: the reasonable expectations of the adhering party and whether the contract is unconscionable. As the court stated in Graham:

Generally speaking, there are two judicially imposed limitations on the enforcement of adhesion contracts or provisions thereof. The first is that such a contract or provision which does not fall within the reasonable expectations of the weaker or "adhering" party will not be enforced against him. [citations omitted] The second — a principle of equity applicable to all contracts generally — is that a contract or provision, even if consistent with the reasonable expectations of the parties, will be denied enforcement if, considered in its context, it is unduly oppressive or "unconscionable."

171 Cal. Rptr. at 612, 623 P.2d at 172-73 (citations omitted). See also Huff v. Bekins Moving & Storage Co., 145 Ariz. 496, 498, 702 P.2d 1341, 1343 (App. 1985).

Plaintiff argues that the trial court should have adopted, and we should now adopt, the analysis provided in Obstetrics & Gynecologists v. Pepper, 101 Nev. 105, 693 P.2d 1259 (1985), because it is virtually indistinguishable from the present case. In Pepper, the patient was required to sign an agreement before receiving treatment which waived her right to jury trial and submitted all disputes to arbitration. The clinic did not explain the contents of the agreement to the patient. The clinic's practice was to have staff instruct patients to complete two medical history forms and the agreement to arbitrate and to inform patients that any questions would be answered. [152] If the patient refused to sign the agreement, the clinic refused treatment.

The plaintiff in Pepper signed the agreement, but did not recall doing so, nor did she recall having the agreement explained to her. The plaintiff later brought suit for injuries suffered due to improperly prescribed oral contraceptives. The trial court made no findings of fact or conclusions of law, but the Nevada Supreme Court, upon review of the record before it, held the agreement unenforceable because plaintiff did not give a knowing consent to the agreement to arbitrate.

The facts in the instant case present an even stronger argument in favor of holding the agreement unenforceable than do the facts in Pepper. In both cases, plaintiffs stated that they did not recall signing the agreement to arbitrate or having it explained to them. Unlike the clinic in Pepper, the clinic in this case did not show that it was the procedure of clinic staff to offer to explain the agreement to patients. The clinic did not explain the purpose of the form to plaintiff and did not show whether plaintiff was required to sign the form or forfeit treatment. In Pepper, the fact that both parties were waiving their right to a jury trial was explicit, which is not so in the present case.

Clearly, the issues of knowing consent and reasonable expectations are closely related and intertwined. In Darner Motor Sales, Inc. v. Universal Underwriters Ins. Co., 140 Ariz. 383, 682 P.2d 388 (1984), this court used the Restatement (Second) of Contracts § 211 (Standardized Agreements), as a guide to analyzing, among other things, contracts that contain non-negotiated terms. The comment to subsection (3), quoted with approval in Darner, states in part:

Although customers typically adhere to standardized agreements and are bound by them without even appearing to know the standard terms in detail, they are not bound to unknown terms which are beyond the range of reasonable expectation.

See 140 Ariz. at 391, 682 P.2d at 396.

The Restatement focuses our attention on whether it was beyond plaintiff's reasonable expectations to expect to arbitrate her medical malpractice claims, which includes waiving her right to a jury trial, as part of the filling out of the three forms under the facts and circumstances of this case. Clearly, there was no conspicuous or explicit waiver of the fundamental right to a jury trial or any evidence that such rights were knowingly, voluntarily and intelligently waived. The only evidence presented compels a finding that waiver of such fundamental rights was beyond the reasonable expectations of plaintiff. Moreover, as Professor Henderson writes, "[i]n attempting to effectuate reasonable expectations consistent with a standardized medical contract, a court will find less reason to regard the bargaining process as suspect if there are no terms unreasonably favorable to the stronger party." Henderson, supra, at 995. In this case failure to explain to plaintiff that the agreement required all potential disputes, including malpractice disputes, to be heard only by an arbitrator who was a licensed obstetrician/gynecologist requires us to view the "bargaining" process with suspicion. It would be unreasonable to enforce such a critical term against plaintiff when it is not a negotiated term and defendant failed to explain it to her or call her attention to it.

Plaintiff was under a great deal of emotional stress, had only a high school education, was not experienced in commercial matters, and is still not sure "what arbitration is." Given the circumstances under which the agreement was signed and the nature of the terms included therein, our reading of Pepper, Darner, the Restatement and the affidavits in this case compel us to conclude that the contract fell outside plaintiff's reasonable expectations and is, therefore, unenforceable. Because of this holding, it is unnecessary for us to determine whether the contract is also unconscionable.

III. A Comment on The Dissent

In view of the concern expressed by the dissent, we restate our firm conviction that arbitration and other methods of alternative [153] dispute resolution play important and desirable roles in our system of dispute resolution. We encourage their use. When agreements to arbitrate are freely and fairly entered, they will be welcomed and enforced. They will not, however, be exempted from the usual rules of contract law, as A.R.S. § 12-1501 itself makes clear.

We also restate that we decline the invitation to write a sweeping, legislative rule concerning all agreements to arbitrate. Instead, we decide this case. In this case, the facts concerning the signing of the document have all come from the plaintiff and all are uncontradicted. Under the undisputed facts in this case, the document involved is a contract of adhesion. Our enthusiasm for arbitration in general does not permit us to ignore the realities present in this case.

The dissent is concerned that our decision today sends a "mixed message." It is, however, our intent to send a clear message. That message is: Contracts of adhesion will not be enforced unless they are conscionable and within the reasonable expectations of the parties. This is a well-established principle of contract law; today we merely apply it to the undisputed facts of the case before us.

DISPOSITION

Those portions of the opinion of the court of appeals inconsistent with this opinion are vacated. The judgment of the trial court is reversed and this case is remanded for further proceedings consistent with this opinion. Because plaintiff has successfully overcome defendant's claimed contractual defense, the trial court may entertain an application for fees incurred at the trial court and appellate level. Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 391-95, 710 P.2d 1025, 1046-50 (1985).

FELDMAN, C.J., and CORCORAN and ZLAKET, JJ., concur.

MARTONE, Justice, dissenting.

The court's conclusion that the agreement to arbitrate was outside the plaintiff's reasonable expectations is without basis in law or fact. I fear today's decision reflects a preference for litigation over alternative dispute resolution that I had thought was behind us. I would affirm the court of appeals.

We begin with the undisputed facts that the court ignores. Appendix "A" to this dissent is the agreement to arbitrate. At the top it states in bold capital letters "PLEASE READ THIS CONTRACT CAREFULLY AS IT EFFECTS [sic] YOUR LEGAL RIGHTS." Directly under that in all capital letters are the words "AGREEMENT TO ARBITRATE." The recitals indicate that "the Parties deem it to be in their respective best interest to settle any such dispute as expeditiously and economically as possible." The parties agreed that disputes over services provided would be settled by arbitration in accordance with the rules of the American Arbitration Association. They further agreed that the arbitrators appointed by the American Arbitration Association would be licensed medical doctors who specialize in obstetrics/gynecology. Plaintiff, an adult, signed the document.

Under A.R.S. § 12-1501, a written contract to submit to arbitration any controversy that might arise between the parties is "valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract." The statute applies to any controversy. Under A.R.S. § 12-1503, if the arbitration agreement provides a method of appointment of arbitrators, "this method shall be followed." Under A.R.S. § 12-1518, the American Arbitration Association is expressly acknowledged as an entity that the state itself may use in connection with arbitration. There is judicial review of any award. A.R.S. § 12-1512. Thus, on the face of it, the contract to arbitrate is plainly reasonable and enforceable unless there are grounds to revoke it. A.R.S. § 12-1501.

The court seizes upon the doctrine of reasonable expectations to revoke this contract. But there is nothing in this record that would warrant a finding that an agreement to arbitrate a malpractice claim was [154] not within the reasonable expectations of the parties. On this record, the exact opposite is likely to be true. For all we know, both sides in this case might wish to avoid litigation like the plague and seek the more harmonious waters of alternative dispute resolution.^[1] Nor is there anything in this record that would suggest that arbitration is bad. Where is the harm? In the end, today's decision reflects a preference in favor of litigation that is not shared by the courts of other states and the courts of the United States.

In Doyle v. Giuliucci, 62 Cal.2d 606, 43 Cal. Rptr. 697, 699, 401 P.2d 1, 3 (1965), Chief Justice Roger J. Traynor of the California Supreme Court said, in connection with a medical malpractice claim, that "[t]he arbitration provision in such contracts is a reasonable restriction, for it does no more than specify a forum for the settlement of disputes." And, in Madden v. Kaiser Foundation Hospitals, 17 Cal.3d 699, 131 Cal. Rptr. 882, 890, 552 P.2d 1178, 1186 (1976), the California Supreme Court outlined "the benefits of the arbitral forum":

[t]he speed and economy of arbitration, in contrast to the expense and delay of jury trial, could prove helpful to all parties; the simplified procedures and relaxed rules of evidence in arbitration may aid an injured plaintiff in presenting his case. Plaintiffs with less serious injuries, who cannot afford the high litigation expenses of court or jury trial, disproportionate to the amount of their claim, will benefit especially from the simplicity and economy of arbitration; that procedure could facilitate the adjudication of minor malpractice claims which cannot economically be resolved in a judicial forum.^[2]

The Federal Arbitration Act, 9 U.S.C. § 2, is just like Arizona's, A.R.S. § 12-1501. There was a time when judicial antipathy towards arbitration prevailed. Poor Justice Frankfurter had to say in dissent in Wilko v. Swan, 346 U.S. 427, 439, 74 S.Ct. 182, 189, 98 L.Ed. 168 (1953) that "[t]here is nothing in the record before us, nor in the facts of which we can take judicial notice, to indicate that the arbitral system ... would not afford the plaintiff the rights to which he is entitled."

Justice Frankfurter's views have now been vindicated. The Supreme Court of the United States has upheld arbitration agreements under the Federal Arbitration Act in a variety of contexts, from the commercial setting in Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (Securities Exchange Act of 1934 and RICO claims) and Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (Securities Act of 1933) to employment discrimination claims. Gilmer v. Interstate/Johnson Lane Corp., ___ U.S. ___, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (Age Discrimination in Employment Act claim).

Indeed, in Gilmer, the Supreme Court expressly rejected the arguments that regrettably this court has accepted. ___ U.S. at ___-___, 111 S.Ct. at 1654-55. The Supreme Court has expressly rejected the "outmoded presumption" and "suspicion of arbitration as a method of weakening the protections afforded in the substantive law." Rodriguez de Quijas, 490 U.S. at 481, 109 S.Ct. at 1920.

Against this background, how does this court reach its conclusion that arbitration [155] is beyond the reasonable expectations of the parties? Its reliance on Obstetrics and Gynecologists v. Pepper, 101 Nev. 105, 693 P.2d 1259 (1985), Darner Motor Sales, Inc. v. Universal Underwriters Insurance Co., 140 Ariz. 383, 682 P.2d 388 (1984), and the Restatement (Second) of Contracts § 211 (1979), is misplaced.

Pepper is a brief per curiam opinion of the Nevada Supreme Court which merely affirmed the finding of a trial court. The trial court held a hearing to determine whether there was an enforceable arbitration contract. However, the trial court did not make findings of facts and conclusions of law. That court simply denied a motion to stay pending arbitration. The Nevada Supreme Court said "[t]he district court could certainly have found that the arbitration agreement was an adhesion contract." 693 P.2d at 1260. It then said "[s]ince appellant's counsel failed to pursue the entry of findings of facts and conclusions of law, we are bound to presume that the district court found that respondent did not give a knowing consent to the arbitration agreement prepared by appellant clinic." Id., 693 P.2d at 1261. If Pepper stands for anything, it stands for the proposition that "knowing consent" is a factual question, and that an appellate court will affirm a factual finding if there is any evidence to support it. The basis for the court's decision was "knowing consent" under Nevada law, not reasonable expectations under ours.

Nor are Darner and the Restatement support for this court's conclusion. Darner held that an adhesive contract term that is "contrary to the negotiated agreement made by the parties," 140 Ariz. at 387, 682 P.2d at 392, will not be enforced because it collides with expectations that "have been induced by the making of a promise." 140 Ariz. at 390, 682 P.2d at 395 (quoting 1 Corbin, Contracts § 1 at 2 (1963)). The defendant here did not promise the plaintiff that malpractice claims could be litigated. Thus, the agreement to arbitrate is not contrary to any negotiated deal.

Gordinier v. Aetna Casualty & Surety Co., 154 Ariz. 266, 742 P.2d 277 (1987), of course, extended Darner to the entire scope of the Restatement (Second) of Contracts § 211 (1979). But even that section does not support today's decision. Under Restatement (Second) of Contracts § 211(3), standardized agreements are enforceable except where a party has reason to believe that the other party would not manifest assent if he knew that the writing contained a particular term. Comment f to § 211 tells us:

Such a belief or assumption may be shown by the prior negotiations or inferred from the circumstances. Reason to believe may be inferred from the fact that the term is bizarre or oppressive, from the fact that it eviscerates the non-standard terms explicitly agreed to, or from the fact that it eliminates the dominant purpose of the transaction. The inference is reinforced if the adhering party never had an opportunity to read the term, or if it is illegible or otherwise hidden from view.

Plainly, there are no facts in this case to support any of these factors. There were no prior negotiations that were contrary to arbitration. An agreement to arbitrate is hardly bizarre or oppressive. It is a preferred method of alternative dispute resolution that our legislature has expressly acknowledged in A.R.S. § 12-1501. Arbitration does not eviscerate any agreed terms. Nor does it eliminate the dominant purpose of the transaction. The plaintiff here had an opportunity to read the document, the document was legible and was hardly hidden from plaintiff's view. This arbitration agreement was in bold capital letters. Thus, the reasonable expectations standard of the Restatement (Second) of Contracts § 211 does not support this court's conclusion.

There is another reason why § 211(3) fails to support the court's conclusion. The Restatement (Second) of Contracts chapter 8 describes the whole range of unenforceable contracts. Its introductory note states:

[156] A particularly important change has been effected by statutes relating to arbitration, which have now been enacted in so many jurisdictions that it seems likely that even in the remaining states, there has been a change in the former judicial attitude of hostility toward agreements to arbitrate future disputes.... Such agreements are now widely used and serve the public interest by saving court time. The rules stated in this Chapter do not preclude their enforcement even in the absence of legislation.

Restatement (Second) of Contracts ch. 8, intro. note at 4 (emphasis added). It is difficult to reconcile the court's reliance on the Restatement in light of this.

The court tells us that there is no explicit waiver of the fundamental right to a jury trial in the arbitration agreement. But under Rule 38(d), Ariz.R.Civ.P., the failure of a party to serve a demand for a jury trial and file it constitutes a waiver by that party of a trial by jury. In contrast to the criminal process, no complicated proceeding is required to waive a trial by jury in a civil case. It is ironic that the majority prefers litigation, in which the plaintiff would lose her right to trial by jury by failing to know about it and demand it under Rule 38, but then somehow assumes that a document which in bold capital letters informs the plaintiff that it affects her legal rights and is denominated in bold capital letters as "agreement to arbitrate" is insufficient warning.

At bottom, all that could explain the court's decision is a preference for litigation over arbitration. The court expresses sympathy for the plaintiff as though arbitration were harmful to her interests. But Arizona public policy has long supported arbitration as good, not evil. Court annexed arbitration of civil actions under A.R.S. § 12-133 is now an entrenched part of our culture. About 90% of these cases end at arbitration and are not appealed.^[3] Arizona Supreme Court Commission on the Courts, Report of the Commission on the Courts 36 (1989). Indeed, the Commission on the Courts specifically recommended that medical malpractice cases be subject to alternative dispute resolution procedures. Id. at 38. It noted that many lawyers will not take a malpractice case unless the damages exceed $100,000. "A large number of potential plaintiffs, therefore, may never receive the representation and opportunity for compensation they deserve. Both plaintiff and defense attorneys indicate that they would prefer a different form of dispute resolution." Id. at 39.

Ironically, this court was instrumental in establishing an alternative dispute resolution fund under which we promote alternative dispute resolution and administer the fund. A.R.S. § 12-135.

And, we recently amended our rules of civil procedure to encourage trial judges to "[c]onsider alternative dispute resolution." Ariz.R.Civ.P. 16(c)(11). The committee comment to this 1991 amendment notes that "Rule 16(c)(11) is intended by the Committee to be a strong suggestion that the court explore the possibility of alternative dispute resolution including binding and non-binding arbitration...." Rule 16(c)(11), Ariz.R.Civ.P. comment (emphasis added).

Today's decision sends a mixed message. In light of all of these developments, how can it be that an agreement to arbitrate "fell outside plaintiff's reasonable expectations?" The court's answer, Part III, ante, at 152, 840 P.2d at 1017, merely confuses the concept of a contract of adhesion with the doctrine of reasonable expectations. The court says it will enforce arbitration agreements "freely and fairly entered," ante, at 153, 840 P.2d at 1018, and that "the document involved is a contract of adhesion." Id. But the court's own framework of analysis acknowledges that its "conclusion that the contract was one of adhesion is not, of itself, determinative of its enforceability." Ante, at 151, 840 P.2d at 1016. It acknowledges that once it is determined that an adhesive contract exists, [157] one looks to (1) reasonable expectations and (2) conscionability. Id. No one doubts that this was a contract of adhesion. And the court holds that because "the contract fell outside plaintiff's reasonable expectations" it is unenforceable, and therefore it is not necessary "to determine whether the contract is also unconscionable." Ante, at 152, 840 P.2d at 1017. Thus the court does not reach conscionability.

The only basis for the court's decision is "reasonable expectations," but words such as "freely and fairly entered," or "contract of adhesion" are irrelevant to that inquiry. If it is not "free" it is a contract of adhesion. If it is "unfair" it is unconscionable. Nowhere does the court's "Comment on The Dissent" provide the basis for its legal conclusion that this adhesive agreement to arbitrate fell outside of plaintiff's reasonable expectations. In the end we are left to conclude that people reasonably expect litigation over alternative dispute resolution. For all these reasons, I dissent.

[158]

[1] According to a national survey on American attitudes towards dispute resolution, 82% of the American public, once informed, is willing to use dispute resolution, particularly mediation and arbitration. NIDR Releases Findings of National Survey on Public Attitudes Towards DR, Forum, Summer 1992 at 26.

[2] Following these decisions, the California legislature adopted Cal.Civ.Proc.Code § 1295, which expressly regulates such provisions. California has acknowledged the validity of contracts in compliance with the statute even where the patient is illiterate and, as here, claims not to remember signing it. Bolanos v. Khalatian,231 Cal. App.3d 1586, 283 Cal. Rptr. 209, 211 (1991).

Michigan has a statute similar to California's, Mich. Stat. Ann. §§ 27A. 5040-27A. 5065, and its court has rejected arguments that arbitration agreements in compliance with the statute are adhesive, unconscionable, or deny people their rights to jury trials. Morris v. Metriyakool, 418 Mich. 423, 344 N.W.2d 736 (1984).

[3] In 1987 and 1988, in Maricopa County, there were 290 appeals from 2,945 terminated arbitration cases.

Samuel G. COOK et al., Plaintiffs-Appellants, v. The ADVERTISER COMPANY, Inc., et al., Defendants-Appellees.

No. 71-1749.

United States Court of Appeals, Fifth Circuit.

March 21, 1972.

J. J. Levin, Jr., Morris S. Dees, Jr., Levin & Dees, Solomon S. Seay, Jr., Gray, Seay & Langford, Montgomery, Ala., for plaintiffs-appellants.

Nathaniel R. Jones, Gen. Counsel, William D. Wells, Asst. Counsel, James Meyerson, Atty., N.A.A.C.P., Special Contribution Fund, New York City (for amicus curiae N.A.A.C.P.).

Arthur B. Hanson, W. Frank Stickle, Jr., Ralph N. Albright, Jr., Washington, D. C., for amicus curiae The American Newspaper Publishers Assn.; Hanson, O’Brien, Birney & Stickle, Washington, D. C., of counsel.

M. R. Nachman, Jr., Steiner, Crum & Baker, Montgomery, Ala., of counsel, for defendants-appellees.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

COLEMAN, Circuit Judge:

May a Court exercise jurisdiction over the content and arrangement of the society pages of a newspaper? That is the real issue in this appeal. In a judgment dismissing the complaint, the District Court [Johnson, Chief Judge] held in the negative, Cook v. Advertiser Company, 323 F.Supp. 1212 (M.D., Ala., 1971). We affirm.

One of the class action plaintiffs, Samuel G. Cook, a Negro, alleged that on May 18, 1970 he tendered the photo and wedding announcement of his fiancee, Miss Sherrie Ann Martin, of the same race, to the society editor and to the publisher of The Montgomery Advertiser, the only newspaper of any substantial circulation in the area, with the request that the story appear on the society page and “not the black page”. The proposed restrictions were rejected ; the story and the picture were never published. The wedding occurred on June 12, 1970.

On June 15, 1970 Cook and seven others filed a class action against the newspaper and its publisher, alleging that:

“The Advertiser publishes a society section in its Sunday edition where it prints bridal announcements and wedding stories and pictures. Stories and pictures appearing in this society section are accepted only from white people. All stories and pictures submitted by whites from Montgomery County are published in this society section. The Advertiser refuses to accept and print wedding stories from Negroes to appear in the society section. Wedding stories and pictures of Negro persons are accepted and printed outside the regular society section on a Negro news page.”

It was charged that the denial of the publication on the regular society page is a badge of slavery prohibited by 42 U.S.C. § 1981. It was further alleged:

“Plaintiff Cook and his fiance suffered humiliation and embarrassment because their wedding announcement and picture failed to appear in the Advertiser as a direct result of Defendants’ refusal to contract [emphasis by the Court] with Plaintiff Cook and because they were singled out for unequal treatment due to their race. Plaintiff Cook claims twenty thousand dollars ($20,000.00) as punitive and compensatory damages for this violation of his rights and for the humiliation and mental suffering he underwent because of the Defendants’ illegal and discriminatory actions. Plaintiff Cook also claims attorneys’ fees, court cost and demands a jury trial on the damage aspect of his claim.

“Plaintiff Cook seeks to enjoin the Defendant from, refusing to print the picture and story of his wedding on June 12, 1970 and seeks an order requiring Defendants to print said story in the Sunday society section within a reasonable time after June 12 to be meaningful.”

The plaintiffs further prayed that the defendants be enjoined “from refusing to contract with Negro citizens on an equal basis for white citizens in respect to news stories concerning bridal announcements.”

Miss Martin, the prospective bride, whose picture and story were in this manner rejected, did not join the litigation as a party plaintiff.

The Montgomery Advertiser filed a motion to dismiss. Among the grounds assigned were that to exercise jurisdiction over the defendants in this case or the granting of the relief sought by the plaintiffs “would be violative and contrary to the First, Amendment of the Constitution of the United States and would constitute an abridgement of the freedom of the press.”

The District Court rejected the 42 U.S.C., § 1981 argument of plaintiffs on the ground that the section does not reach private action. Thereafter, the Fifth Circuit decided Sanders v. Dobbs Houses, Inc., 1970, 431 F.2d 1097. In that case it was held, under 42 U.S.C., § 1981, that a Negro employee who was allegedly discharged solely because she was a Negro could state a claim against a private employer. Plaintiffs below then requested the District Court to reconsider its order of dismissal, citing Sanders. The District Court filed an additional memorandum opinion denying the motion for reconsideration, concluding:

“Assuming that the plaintiffs have a statutory right under Section 1981 to have their bridal announcements published and that the defendant newspaper has a constitutional right to a ‘free press’, this Court reaches the firm conclusion that said defendant’s constitutional right to be free from judicial interference in the selection of announcements for publication far outweighs the Section 1981 right plaintiffs are attempting to assert. It is for this same reason that plaintiffs cannot prevail against defendants upon a First Amendment theory.”

42 U.S.C. § 1981, provides that “all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . ”.

Cook claims that the method pursued by the Montgomery Advertiser for the acquisition and use of material in its society page amounted to an implied contract upon presentation of the questionnaire and the picture, thus conferring § 1981 jurisdiction. The paper did distribute printed forms (or blanks) to be filled in and signed by those wishing to have an announcement appear on the society page. This form was entitled:

“The Montgomery Advertiser and Alabama Journal Society Department Outline for Engagement Announcement.”

The information requested was the name of the bride — bride elect; the names of her parents and grandparents, with addresses; the name of the bridegroom elect, with like information as in the case of the bride; schools and colleges attended or now attending, with the names of clubs, sororities, and fraternities to which the individual had belonged, where employed, and the date and place of wedding. The questionnaire had to be signed with the name, address, and telephone number of the person furnishing it, no doubt to insure its authenticity and to identify any who might file an erroneous report.

The Advertiser charged no fee for stories appearing on its society page and the parties furnished, at their expense, any picture which they desired to have published. The actual story was written from the information appearing on the questionnaire.

There was no statement on the questionnaire, or elsewhere, that the Advertiser agreed to prepare and publish a story on each and every questionnaire filed with it.

In its original opinion the District Court did not decide whether there was a contract but dismissed because even if there was a contract there was no state action. In the order denying the motion for reconsideration, filed March 11, 1971, the Court again omitted decision specifically as to whether Cook had an implied contract, stating:

“Assuming arguendo that Section 1981 prohibits discrimination in the type of contractual relationship in question, there is a more serious hurdle plaintiffs must clear in order to withstand defendants’ motion to dismiss in this case [the First Amendment].”

Accordingly it was upon First Amendment grounds that the District Court based its second dismissal of the complaint.

Courts must look first to their jurisdiction, even if the look is of their own initiative. Our analysis of the transactions between Cook and the Advertiser leads us to believe that they did not amount to a contract, implied or otherwise. It appears that the Advertiser generally wrote and published items on its society page, based on information furnished in questionnaires voluntarily filed by those who wanted an item published. There was never an agreement that every questionnaire, without exception, would result in a story on the society page. The newspaper received no pecuniary consideration from any person filing a questionnaire. There was no agreement to publish and there was no consideration received for any publication actually made. We have been cited no case which holds that such an arrangement constitutes a binding contract between the parties. Thus no § 1981 jurisdiction could arise under the right to contract.

Having determined that the method pursued by the Montgomery Advertiser for acquisition and use of material in its society pages did not constitute a standing offer which became a binding contract when material was submitted, we do not reach the second question presented, that is whether or not granting of the relief sought by the plaintiffs-appellants would be violative of the First Amendment to the Constitution of the United States as constituting an abridgment of freedom of the press.

The judgment appealed from is

Affirmed.

WISDOM, Circuit Judge

(concurring specially):

42 U.S.C. § 1981 provides that “[a] 11 persons within the jurisdiction of the United States shall have the same right in every State ... to make and enforce contracts . . . as is enjoyed by white citizens.” § 1981 prohibits both private discrimination in the making of contracts and officially-supported discrimination as well. Sanders v. Dobbs Houses, Inc., 5 Cir. 1970, 431 F.2d 1097, reh. den. (en banc) 431 F.2d 1101. See also, e. g., Scott v. Young, 4 Cir. 1970, 421 F.2d 143, cert. den. 398 U.S. 929, 90 S.Ct. 1820, 26 L.Ed.2d 91; Waters v. Wisconsin Steel Works, 7 Cir. 1970, 427 F.2d 476, cert. den. sub nom. United Order of American Bricklayers & Stone Masons v. Waters, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151; Cf. Sullivan v. Little Hunting Park, Inc., 1969, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386; Jones v. Alfred H. Mayer Co., 1968, 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (interpreting 42 U.S.C. § 1982).

The plaintiff Cook argues that he was denied the same right to “make and enforce” a contract with the Advertiser as is enjoyed by white residents of Montgomery. Cook’s argument is appealing. An applicant takes the time and the trouble to record in writing and deliver to the Advertiser information about his impending marriage. In return, the paper bears the expense of publishing the applicant’s wedding announcement, thereby providing the applicant and his family with flattering and enjoyable publicity. Though no cash is exchanged, each side incurs a detriment and each side receives a benefit. One could say that the Advertiser has promulgated an offer for a unilateral contract, by communicating to the white residents of the Montgomery area that it will promise to print their announcements if they provide the necessary information. When the information is presented to the paper, a contract is formed, or so the argument might run; a promise is exchanged for performance.

Yet the argument proceeds from a mistaken premise. Not every exchange of conferred benefits creates a contract. In this case Cook cannot succeed in demonstrating the formation of a contract between the Advertiser and Montgomery residents simply because the residents provide the Advertiser with information and the advertiser provides the residents with publicity. The question, rather, is whether Montgomery residents possess any enforceable right to publication of their wedding announcements once they render to the paper what the paper asks of them. A contract “always creat[es] a special right in personam, a right in the promisee against the promisor, with the correlative special duty in the promisor to the promisee of rendering the performance promised.” Corbin on Contracts, § 4 (1963 ed.).

I do not believe that delivery of the requested information to the Advertiser creates in any applicant the right to require the paper to publish his announcement, or any right to damages if the announcement is not published. My conclusion is shaped by, if not compelled by, the First Amendment’s guarantee of a free press. It is most unlikely that any court in our land could constitutionally enforce a “promise” by a newspaper to publish any particular item of news. See Shelley v. Kraemer, 1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161. For the determination of what news is — the selectivity of the press — lies close to the heart of a press that may speak, or not speak, as it sees fit. Even if a newspaper stooped to sell its news coverage for hard cash, I suppose the most a frustrated buyer would be entitled to would be a refund of the dollars he had parted with.

It is more accurate to describe a newspaper’s “promise” to publish any particular item as a “promise” that is conditioned on the newspaper’s informed discretion as to what is news — and one which is plainly so understood by the public. When a paper publishes scholarship announcements, silver wedding anniversary stories, earnings reports on local businesses, athletic results, and even political interviews, it implicitly “promises” the focal individual who gives of his time that the paper will incur the expense of crafting, publishing, and disseminating an account of the individual’s accomplishments, happy coincidences, or whatever. Only occasionally does such a story fall through; for example, regular publication is the rule for wedding announcements of most if not all white residents of Montgomery. But it is well understood by all who furnish information to a newspaper that the object of their efforts may or may not come to fruition, and that it will be left to the informed choice of the paper’s editors. In short, I would say that the “offer” for a unilateral “contract” communicated by the Advertiser is an offer to publish on such terms as it sees fit. It is an offer to exchange only an unenforceable promise to publish. Black citizens, then, have “the same right . to make and enforce contracts . as is enjoyed by white citizens”. Neither white citizens nor black citizens form enforceable contracts of publication with the Advertiser.

Cook argues vehemently that we should at least require a trial to determine whether the publication of wedding announcements is so “mechanical” and arguably therefore so “commercial” as to fall beyond the prerogatives of a free press. But Cook has simply culled a characteristic superficially common to both commercial advertising and to these wedding announcements and asked us to hold that both must be treated alike for purposes of the First Amendment. Even assuming that the layout of the wedding announcements is mechanical, a determination of newsworthiness —however warped — underlies the Advertiser’s decision to print more white wedding announcements than black ones. A similar determination underlies the printing of obituaries, sports reports, church announcements, and any number of other accounts of events which may be printed in highly homogeneous fashion from day to day. Mechanical layout is not a reliable indicator that the paper is not exercising some form of editorial discretion in deciding what to print. I think the First Amendment protects that editorial discretion, however perverse may be the manner of its exercise.

It is true that commercial advertising, once accepted for printing, is subject to congressional regulation. See United States v. Hunter, D.Md.1971, 324 F.Supp. 529. But that does not mean that routine news stories, such as wedding announcements, are to be subject to Congressional regulation. Commercial advertising is a marketplace form of communication for purposes of the First Amendment: the stuff of the communication is prices, wages, buying and selling. Commercial advertising is commerce. Like news, people read commercial advertising, and read it with interest, .but it is not news because people read it any more than news is commercial advertising because it is printed in routine fashion. I see nothing to be gained by requiring a trial which might enable Cook to prove that the editorial techniques which lead to publication of wedding announcements in the Advertiser are mechanical. Those stories are still news stories and they are not commercial advertising.

I concur in the Court’s conclusion that no contract is formed between the Advertiser and those who submit wedding announcements to the paper for publication.

22178

Christine BRADLEY, Respondent, v. David SOMERS, Appellant.

(322 S. E. (2d) 665)

Coming B. Gibbs, Jr., of Gibbs & Holmes, Charleston, for appellant.

Ann M. Stirling and Michael P. O’Connell of Stirling O’Connell, Charleston Correspondent.

Heard Oct. 3, 1984.

Decided Nov. 7, 1984.

Harwell, Justice:

The respondent Christine Bradley initiated this breach of promise to marry action against the appellant Captain David Somers. The jury found the appellant liable and rewarded the respondent $60,000 in actual damages. We reverse and remand for a new trial solely on the issue of damages.

The facts in this case weave a web of tangled love affairs. The respondent (Christine) married a Marine Corps major when she was quite young. After a number of years of marriage, during a period when Christine’s husband was at sea a married girlfriend of Christine’s invited her to dinner. The hostess had invited a date for herself and one for Christine. Christine’s date was the appellant, Captain David Somers, USN, then a married man. The Captain and Christine began to date. (They even attended the theatre with tickets that Christine’s husband had purchased.) The Captain and Christine soon commenced sexual relations; Christine testified that she was never physically attracted to the Major. Thereafter, Christine and the Captain decided to divorce their spouses in order to marry each other. By May 11,1982 the final divorce for each had been obtained, and wedding plans continued.

In preparation for the wedding date of June 20,1982, Captain Somers and Christine ordered special wedding bands from the Smithsonian Institution. They also arranged for the ceremony to take place in the First Presbyterian Church in Hilton Head, to be performed by Dr. Kinchelowe, the church pastor. The parties also engaged an organist, caterer, photographer, florist, and baker. In preparation for the wedding, Christine purchased a wedding dress, silk bouquet, shoes, and nightgown. She bought a Cross desk set as a gift for the groom bearing the engraving “David W. Somers, Jr., June 20,1982.”

The night before the wedding, the groom confessed to the bride that he had cold feet. However, his fears eventually seemed to subside. On the wedding day, the wedding guests began to gather at the church. Christine donned her wedding dress, and the organ began to play. Christine and the Captain went to the pastor’s office to sign the marriage license. The Captain then told his bride that he could not go through with the marriage and that “there is someone else.” After he told her the shocking news, Christine saw the Captain’s daughter, Jennifer, standing nearby dressed in sweatpants and a swimsuit. The Captain testified that he had not told Jennifer about the wedding for fear she would try to stop it.

Jennifer testified that she was extremely upset that her father had not told her of his wedding plans. As a matter of fact, Jennifer was fond of David’s “buddy” Thelma Fisk, whom he married about five months later. During the discussions between the bride and groom, Jennifer, and the minister, the time for the ceremony passed. The organist continued to repeat the same song, and the audience became uncomfortable. Finally, Dr. Kinchelowe announced to the guests that the wedding would not take place.

Christine was humiliated, devastated, nauseated, and, shortly thereafter, suicidal. She obtained psychiatric treatment for which she received a $3,000 statement. Christine testified that, to this day, she is not normal, has fits of raving, and has a severe distrust of men.

The major issue on appeal concerns Christine’s testimony regarding her first marriage and the judge’s refusal to charge the jury that it could not award damages for the dissolution of that marriage. In response to questions concerning her first marriage, the respondent testified: “I would have had the companionship of a man I cared for. I would have had the financial support of a husband---The marriage with Frank could have been saved... had it not been for the intervention of David Somers and the promise and prospect of a- better life with him.” We believe that admitting the testimony and refusing to make a curative charge constitute prejudicial error.

Damages for breach of promise to marry are confined to those relating to the position the rejected spouse (Christine) would have held had she married the appellant. She is entitled to recover for the loss of the pecuniary and social advantages of the promised marriage. Also, her mental anguish, humiliation, and injury to health and psyche are elements of damages. In addition, she may recover for losses sustained from expenditures made in preparation of marriage. The jury may consider the monetary value of a marriage which would have given Christine a home. See 12 Am. Jur. (2d) Breach of Promise, §§ 26, 27 (1964).

However, the courts have held that one who breaks an engagement in order to marry another may not recover damages against the later suitor who breaches his promise, for the loss of the opportunity to marry the first suitor. 73 A.L.R. (2d) 553, 574 § 13(a) (1960), citing Hahn v. Bettingen, 81 Minn. 91, 83 N. W. 467 (1900). The rationale for disallowing these damages is that to enable an individual to recover damages for his own breach of an engagement is ethically and legally unsound.

By the same token, Christine cannot recover damages for the Captain’s inducement of her divorce because to do so would reward her for her own wrongdoing. See McQuillen v. Evans, 353 Ill. 239, 187 N. E. 320 (1933). A promise of marriage made while married to another is void under public policy, and the persons who make such a promise are “morally unfaithful to the marriage tie.” Strickland v. Anderson, 186 S. C. 482, 196 S. E. 184 (1938).1 We accordingly hold that testimony regarding Christine’s financial or social situation during her first marriage and the quality of that marriage was irrelevant and should have been excluded. In addition, the jury should have been charged that Christine could not recover damages from the Captain for encouraging her to divorce her first husband. The damages are confined to those arising from Captain Somers’ breach of his own promise to marry Christine.

The appellant urges this court to abolish the cause of action for breach of marriage promise. We decline to do so. Most states which have abolished the cause of action have done so legislatively. See statutes collected in 5 Am. Jur. PL & Pr. Forms (Rev. ed.), Breach of Promise (1984 Supp). We therefore hold that the breach of marriage promise cases remain viable. Evans v. Terry, 1 Brev. 80 (1802); Capehart v. Carodine, 4 Strob. 42 (1849); Jones v. Fuller, 19 S. C. 66 (1882); Coggins v. Cannon, 112 S. C. 225, 99 S. E. 823 (1919); Strickland v. Anderson, 186 S. C. 482, 196 S. E. 184 (1938).

The appellant further asserts that he is entitled to judgment because the evidence showed no breach but rather a postponement of the date of performance of the marriage. We disagree. Although on the day Captain Somers refused to marry Christine at the church, he later offered to marry her, the evidence fails to support the contention that the date was merely postponed. “[I]t is no defense to an action for breach of a promise to marry that the defendant, after the contract to marry had been terminated by his breach thereof, offered to marry the plaintiff and the plaintiff refused to accept that offer.” 12 Am. Jur. (2d), Breach of Promise, § 22 (1964).

The remaining arguments lack merit. The judgment below is, accordingly,

Reversed and remanded for a new trial solely on the issue of damages.

Ness, Acting C. J., Paul M. Moore, Acting Associate Justice, and Gregory and Chandler, JJ., concur.

1

The cause of action in the case at bar arises from the breach of the renewed promise, made after the dissolution of the parties’ earlier marriages.

Alvin D. GILBERT, Appellant, v. Suzanne BARKES, Appellee.

No. 97-SC-463-DG.

Supreme Court of Kentucky.

March 25, 1999.

Edmund P. Karem, Scott E. Karem, Louisville, for Appellant.

Katie Marie Brophy, Louisville, for Appellee.

STEPHENS, Justice.

The issue we decide on this appeal is whether the claim of breach of promise to marry is still a viable legal cause of action in Kentucky. Recently, the Jefferson Circuit Court granted summary judgment to appellant dismissing a claim brought under this cause of action. Thereafter, the Kentucky Court of Appeals overruled the circuit court and reinstated the claim.

In reversing the Jefferson Circuit Court, the appellate panel expressed its disagreement with our previous decisions on this issue. However, the Court of Appeals correctly noted that under SCR 1.030(8)(a) and Special Fund v. Francis, Ky., 708 S.W.2d 641, 642 (1986), it lacked the authority to overrule a precedent established by this Court.

The facts which give rise to this action are as follows. Ms. Suzanne Barkes, appellee, and Dr. Alvin Gilbert, appellant, entered into a relationship beginning in January of 1989 which continued until June of 1994. Ms. Barkes claims that in September of 1990, Dr. Gilbert proposed marriage to her and that in December of 1990, she accepted. Ms. Barkes submits that she received an engagement ring from Dr. Gilbert. In reliance upon her impending marriage and at Dr. Gilbert’s insistence, Ms. Barkes claims that she took early retirement in 1992. Subsequently, Ms. Barkes sold her home in January of 1993 and moved into Dr. Gilbert’s home. Sometime in 1994, the parties’ relationship began to deteriorate and Ms. Barkes left Dr. Gilbert’s home.

In June of 1994 Ms. Barkes filed an action for Breach of Promise to Marry (BPM). Following Ms. Barkes’ deposition, Dr. Gilbert filed a motion for summary judgment, which the trial court granted. Ms. Barkes appealed the decision of the trial court. As noted, the Kentucky Court of Appeals reversed the trial court and remanded the case for trial. Upon proper motion, we granted discretionary review. We now reverse the Court of Appeals.

I. HISTORY OF ACTION FOR BREACH OF PROMISE TO MARRY.

The right of an individual to sue for Breach of Promise to Marry is a common law hybrid of tort and contract. Homer H. Clark, Jr., The Law of Domestic Relations in the United States, 1 (2d ed.1987). Its origin; however, goes back to canon law, which only enforced such a breach through specific performance of the promise. W.J. Broekelbank, The Nature of the Promise to Marry, 41 Ill.L.Rev. 1, 3 (1946); Harter F. Wright, The Action for Breach of the Marriage Promise, 10 Va.L.Rev. 361, 364 (1924). Through time such harsh measures were no longer enforced. The common law has since adopted the action.

In the fifteenth century, English courts embraced the action, primarily because the basis of marriage was largely viewed as a property transaction. Clark, supra, at 2; G.M. Tevelyan, English Social History 313 (1942); W. Goodsell, A History of Marriage and the Family 328-31 (1934). However, in those early times, the aggrieved party was only able to recover monies expended on a deceitful promise to marry. Clark, supra, at 1. In the seventeenth century, the need to prove deceit was eliminated from the cause of action. Clark, supra, at 1; Broekelbank, supra, at 3-4.

Following the lead of England, the American colonies adopted the action. Wright, supra, at 366. The action found a receptive audience in this country eventually becoming more popular in America than in England. Michael Grossberg, Governing the Hearth: Law and Family in Nineteenth-Century America, 37 (1985). However, by the end of the last century commentators became highly critical of the BPM action and favored restricting or eliminating it. McCormick, Handbook on the Law of Damages, 403-04 & n. 56 (1935); Wright, supra, at 371-75.

Today, the concept of marriage is generally no longer perceived as an economic transaction. Rather is regarded as a union of two persons borne out of love and affection, rather than a device by which property is exchanged. Clark, supra, at 3; Jeffrey Kobar, Note, Heartbalm Statutes and Deceit Actions, 83 Mieh.L.Rev. 1770, 1778 (1985).

The elements of the BPM action are predicated upon contract principles with the exception of damages, which has its roots in tort. Scharringhaus v. Hazen, 269 Ky. 425, 107 S.W.2d 329, 336 (1937). Case authority with respect to the elements is quite old. First, there must be mutual promises to marry one another. Burnham v. Cornwell, 55 Ky. (16 B.Mon.) 284, 286, 63 Am.Dec. 529 (1855). Furthermore, an offer and acceptance of the promise must be proven for an action to lie. Burks v. Shain, 5 Ky. (2 Bibb) 341, 342, 5 Am.Dec. 616 (1811). The offer, however, need not be formal. “Any expression ... of readiness to be married is sufficient.” Elmore v. Haddix, Ky., 254 Ky. 292, 71 S.W.2d 620, 622 (1934) (citing 9 C .J. 336). In addition, the contract to marry must be free from fraud based on the presumptions of innocence and purity of each promising party when entering into the agreement. Barrett v. Vander-Meulen, Ky., 264 Ky. 441, 94 S.W.2d 983, 985 (1936).

When the contract to marry has been breached, the injured party must suffer some form of damages. Because the issue of damages stems from tort principles, the amount is not limited to what is recoverable in the typical contract action for a breach of promise. Scharringhaus v. Hazen, Ky., 269 Ky. 425, 107 S.W.2d 329, 336 (1937). Three general classes of damages have emerged from this action: compensatory damages relating to the loss of the marriage, aggravated damages for seduction under promise of marriage, and punitive damages for malicious conduct. Stanard v. Bolin, 88 Wash.2d 614, 617-19, 565 P.2d 94, 96 (1977). See also Annotation: Measure and Elements for Breach of Contract to Marry, 73 A.L.R.2d 553 (1960). In Kentucky, this Court laid down an exhaustive list of factors to consider when estimating damages:

[I]t is proper to consider anxiety of mind produced by the breach; loss of time and expenses incurred in preparation for the marriage; advantages which might have accrued to plaintiff from the marriage; the loss of a permanent home and advantageous establishment; plaintiffs loss of employment in consequence of the engagement or loss of health in consequence of the breach; the length of the engagement; the depth of plaintiffs devotion to defendant; defendant’s conduct and treatment of plaintiff in his whole intercourse with her; injury to plaintiffs reputation or future prospects of marriage; plaintiffs loss of other opportunities of marriage by reason of her engagement to defendant; plaintiffs lack of independent means; her altered social condition in relation to her home and family, due to defendant’s conduct; and the fact that she was living unhappily at the time of the alleged promise.

Scharringhaus at 336 citing, 9 C. J. 372.

The last ease in which this Court issued a ruling on the breach of promise to marry action was in the 1937 Scharringhaus case.

II. SHOULD THE CAUSE OF ACTION FOR BREACH OF PROMISE TO MARRY BE ABOLISHED FROM KENTUCKY COMMON LAW?

In deciding whether to modify the common law, this Court must weigh the benefits versus the burdens of the proposed change. We shall examine the rationale for removing the BPM action from the common law and then we shall discuss the reasons why it should be retained.

The primary argument in favor of abolition of the BPM action is that society’s view of marriage and women have changed dramatically since this cause of action was adopted. While technically either a man or a woman could bring the cause of action in question, this Court is unaware of a man ever asserting such claim before the courts of the Commonwealth. The cases which interpret this cause of action make clear the party who is sought to be protected:

A promise to marry is not infrequently one of the base and wicked tricks of the wily seducer to accomplish his purposes by overcoming that resistance which female virtue makes to his unholy designs.

Scharringhaus v. Hazen, 269 Ky. 425, 107 S.W.2d 329, 336 (1937) (citing Goodall v. Thurman, 38 Tenn. 209, 1 Head 209 (Tenn. Dec. Term 1858). This language reflects the sexism and paternalism that pervade this cause of action. While one could certainly debate whether equality has been achieved between women and men in our society, it is certainly beyond issue that women today possess far more economic, legal and political rights than did their predecessors. Accordingly, we must examine the utility of the BPM action in the context of the present day, not in the era in which it was created.

Our review of the actions taken by other jurisdictions indicates that twenty-eight states have legislatively or judicially abolished the Breach of Promise to Marry action.1 The work of various commentators on this issue demonstrates criticism starting late in the last century and continuing up to the present.2

“Although marriages are still contracted for material advantages, it is now popularly believed that the choice of a spouse should be the result of that complex experience called love.” Clark, supra, at 3. The public policy of the Commonwealth undoubtedly calls for this Court to uphold marriage vows; however, “we see no benefit in discouraging or penalizing persons who realize, before making these vows, that for whatever reason, they are unprepared to take such an important step.” Jackson v. Brown, 904 P.2d 685, 687 (Utah 1995) (emphasis in original).

Given these arguments in favor of abolition as well as the support offered by other jurisdictions and commentators, we now turn to the arguments in favor of its retention. There are two primary arguments in favor of retaining the BPM action. The first is that the General Assembly has implicitly adopted it by placing a statute of limitations upon the period in which such an action can be brought. KRS 413.140(l)(c). The second is that the doctrine of stare decisis compels this Court to retain the action since it is a longstanding remedy and there is no sound reason to eliminate it because it still serves the useful purpose of remedying injury to those who are left standing at the altar.

We find no merit in the first argument that the General Assembly affirms a common law cause of action, such as BPM, by placing a statute of limitations upon it. No legislative approval or disapproval of this court-created claim is indicated by such proceedings. Rather, KRS 413.140(l)(c) merely restricts the time span in which such a claim can be brought before the Court of Justice. It is well established that the legislature has the power to limit the time in which a common law action can be brought. Saylor v. Hall, Ky., 497 S.W.2d 218, 223 (1973). At the same time; however, this Court is entitled to find that a common law cause of action should no longer be maintained. D & W Auto Supply v. Department of Revenue, Ky., 602 S.W.2d 420, 424 (1980). Accordingly, the fact that the legislature has limited the time in which a BPM action must be brought is of no significance and has no relevance to this case.

The second argument is equally as unpersuasive. Stare decisis is a doctrine which has real meaning to this Court. “When a court of institutional review announces a principle of law to apply to a general set of facts, the doctrine of stare decisis requires the court, in the absence of ‘sound reasons to the contrary’ to adhere to that same principle in future cases where there is a similar factual pattern.” Williams v. Wilson, Ky., 972 S.W.2d 260, 269 (1998) (Stephens, C.J., concurring) (quoting Hilen v. Hays, Ky., 673 S.W.2d 713, 717 (1984)). However, when this Court finds a common law cause of action to be anomalous, unworkable or contrary to public policy, it will abolish the action. D & W Auto Supply v. Department of Revenue, Ky., 602 S.W.2d 420, 424 (1980).

We believe the cause of action for breach of promise to marry has become an anachronism that has out-lived its usefulness and should be removed from the common law of the Commonwealth. “It is a barbarous remedy, outgrown by advancing civilization and, like other outgrown relics of a barbarous age, it must go.” Wright, supra, at 382. As when this Court abolished the action for intentional interference with the marital relation in Hoye v. Hoye, Ky., 824 S.W.2d 422, 425 (1992), we “have the power as an appellate court to resolve the question of whether to abolish” the action for BPM. Craft v. Commonwealth, Ky., 343 S.W.2d 150 (1961). Accordingly, the action for Breach of Promise to Marry is no longer a valid cause of action before the courts of the Commonwealth.

This Court wishes to make clear that it in no way prohibits other remedies, such as claims for breach of contract and intentional infliction of emotional distress, should a party be able to make such a case. As the Supreme Court of Utah noted in Jackson v. Brown, 904 P.2d 685, 687 (1995), any direct “economic losses suffered because of ... [the defendant’s] promise to marry [the plaintiff] (such as normal expenses attendant to a wedding) may be recoverable under a theory of ... breach of contract_[I]f a proper case is made out, emotional damages resulting from [the defendant’s] actions may be remedied by an action for intentional infliction of emotional distress. Accordingly, no fundamental remedy is lost to this or any other plaintiff by our decision that a breach of promise to marry no longer has any legal significance.” Id.

While we are removing a cause of action from the common law, we are not eradicating the ability of a party to seek a remedy for such a wrong, but rather we are modifying the form that remedy may take. Accordingly, our jural rights doctrine, enunciated in Ludwig v. Johnson, 243 Ky. 533, 49 S.W.2d 347 (1932), is not implicated in this matter. Williams v. Wilson, Ky., 972 S.W.2d 260, 271 (1998) (Cooper, J., dissenting) (stating that modification of a jural right is permissible as long as the right itself is not abolished). Since we have merely modified the means by which certain wrongs may be remedied, we have no need to address the jural rights doctrine in this case as our action here today does not abolish a common law right existing at the adoption of the 1891 Kentucky Constitution.3

III. APPLICATION OF LAW TO THE FACTS OF THIS CASE.

For several reasons, Ms. Barkes is precluded from recovery from Dr. Gilbert under any contractual theory. First, there were none of the “normal expenses attendant to a wedding” such as a bridal dress, down payment on a reception hall or the like. Ms. Barkes’ economic claims were only for the sale of her house and taking early retirement. Neither of these damages are the type of direct wedding-related economic out-of-pocket expenses that are recoverable. Since only direct economic losses of this type can be recovered and there is no proof of any such losses in this case, no recovery is possible. Second, since no wedding date was ever actually set, there is no way Ms. Barkes could recover under any contractual theory because she cannot otherwise affirmatively demonstrate the parties’ final and serious intent to enter into marriage. Accordingly, since both of these conditions would have to be met before Ms. Barkes could state a viable contract claim, there is no way that she could maintain any sort of contract action against Dr. Gilbert.

Under the principles of Intentional Infliction of Emotional Distress (IIED), Ms. Barkes is similarly precluded because the record demonstrates that she falls short of proving the elements of this claim. The tort of IIED, or outrage, was adopted by this Court in Craft v. Rice, Ky., 671 S.W.2d 247, 251 (1984), because “[t]here is a right to be free of emotional distress arising from conduct by another.” Id. To make out a claim of IIED, the following elements must be proved: (1) the wrongdoer’s conduct must be intentional or reckless; (2) the conduct must be outrageous and intolerable in that it offends against generally accepted standards of decency and morality; (3) there must be a causal connection between the wrongdoer’s conduct and the emotional distress; and (4) the emotional distress must be severe. Kroger Co. v. Willgruber, Ky., 920 S.W.2d 61, 67 (1996); Craft, 671 S.W.2d at 249.

In examining the four elements of IIED as applied to the instant facts, we believe that the second and third elements require no further clarification. However, we have concluded that the first and fourth elements require a more detailed discussion.

With regard to the first element, that the conduct be intentional or reckless, a wrongdoer who intentionally causes severe emotional distress to another by making a promise to marry and then breaking that promise obviously satisfies this element. However, since IIED can also be caused by reckless behavior, it is important to discuss precisely how such conduct must be evaluated. Recklessness in this context requires that the wrongdoer’s actions reflect a lack of consideration well in excess of the thoughtlessness that would be evident in most engagements which are broken off. To meet the necessary recklessness threshold, the wrongdoer must engage in conduct which demonstrates total disregard for the other party. The plaintiff must prove conduct that is so insensitive and irresponsible as to rise to the level of being deemed virtually intentional. It must be the conduct which any normal and prudent person would know was likely to cause extreme emotional distress.

With respect to the fourth element, there is a fairly high level of emotional distress any time any engagement is broken off. To meet the element of severe emotional distress; however, substantially more than mere sorrow is required. From the record, it is clear that Ms. Barkes has not alleged facts which could even begin to support a claim for IIED.

CONCLUSION

The ideas which predominated in the era that begat the cause of action for Breach of Promise to Marry no longer command the allegiance of the Citizens of the Commonwealth. Accordingly, this Court must act to keep the Common Law of Kentucky in step with its citizens. For the reasons stated above we no longer believe that this cause of action should be a part of our common law. When we find our common law to be anomalous, unworkable or contrary to public policy, we are bound to modify it. D & W Auto Supply v. Department of Revenue, Ky., 602 S.W.2d 420, 424 (1980). That is what we have done in this matter. We wish to stress that no fundamental right had been impaired by this Court. Rather we have simply modified the methods by which relief for violation of those rights may be recovered by the injured parties. We reverse the Kentucky Court of Appeals and reinstate the trial court’s order dismissing this claim.

LAMBERT, C.J., JOHNSTONE and STUMBO, JJ., concur.

COOPER, J., dissents in a separate dissenting opinion.

GRAVES and WINTERSHEIMER, JJ., join this dissenting opinion.

1

Alabama (Ala.Code § 6-3-330 (1975)); California (Cal.Civ.Code § 43.5 (Deering 1998)); Colorado (Colo.Rev.Stat. § 13-20-202 (1997)); Connecticut (Conn.Gen.Stat.Ann. § 52-572b (West 1991)); Delaware (Del.Code Ann. tit. 10 § 3924 (1996)); District of Columbia (D.C.Code Ann. § 16-923 (1998)); Florida (Fla.Stat.Ann. § 771.01 (West 1991)); Indiana (Ind.Code Ann. § 34-12-2-1 (Michie 1998)); Maine (Me.Rev. Stat.Ann. tit. 14, § 854 (West 1980)); Maryland (Md.Code Ann., Cts. & Jud.Proc. § 5 — 801(1997)) and (Md.Code Ann., Fam.Law § 3-102 (1997)); Massachusetts (Mass.Gen.Laws Ann. Ch. 207, § 47A (West 1987)); Michigan (Mich.Comp.Laws Ann. § 600.2901 (West 1998)); Minnesota (Minn. Stat.Ann. § 553.03 (West 1998)); Montana (Mont.Code Ann. § 27-1-602 (1997)); Nevada (Nev.Rev.Stat. § 41.380 (1995)); New Hampshire (N.H.Rev.Stat.Ann § 508:11 (1997)); New Jersey (N.J.Stat.Ann. § 2A:23-1 (West 1987)); New York (N.Y.Civ. Rights Law § 80-a (McKinney 1992)); North Dakota (N.D.Cent.Code § 14-02-06 (1997)); Ohio (Ohio Rev.Code Ann. § 2305.29 (Anderson 1997)); Pennsylvania (23 Pa.Cons.Stat.Ann. § 1902 (West 1998)); Utah (Jackson v. Brown, 904 P.2d 685 (Utah 1995)); Vermont (Vt.Stat.Ann. tit. 15, § 1001 (1997)); Virginia (Va.Code Ann. § 8.01-220 (Michie 1997)); West Virginia (W.Va.Code § 56-3-2a (1997)); Wisconsin (Wis.Stat.Ann. § 768.01 (West 1993)); Wyoming (Wyo.Stat.Ann. § 1-23-101 (Michie 1977)).

2

Note, Domestic Relations: Avoid of Anti-Heart-halm Legislation by the Action of Fraud, 8 Hasting LJ. 210 (1957); Comment, California Reopens the ‘Heartbalm’ Action, 9 Stan.L.Rev. 406 (1957); Recent Cases, Breach of Promise — Statute Outlawing Breach-of-Promise Suits Does not Bar Action Based on Fraudulent Promise to Marry; 70 Harv.L.Rev. 1098, 1099 (1957); WJ. Brockel-bank, The Nature of the Promise to Marry — A Study in Comparative Law, 41 Ill.L.Rev. 1, 199 (1946); Feinsinger, Legislative Attack on Heart Balm, 33 Mich.L.Rev. 983 (1935); Brown, Breach of Promise Suits, 77 U.Pa.L.Rev. 474 (1929); Wright, The Action for Breach of Promise of Marriage, 10 Va.L.Rev. 361 (1924); White, Breach of Promise of Marriage, 10 L.Q.Rev. 135 (1894).

3

We wish to distinguish this case from Williams v. Wilson, Ky., 972 S.W.2d 260 (1998), in which this Court struck down part of KRS 411.184. We struck that law because it did not simply modify an existing jural right, but rather it impaired the right by changing the common law standard of proof. Under KRS 411.184, recovery was made substantially harder by raising the standard of proof. Accordingly, KRS 411.184 impaired a fundamental right in an impermissible fashion. Our action today does not impair any right, but simply modifies the means by which those rights may be accessed.

COOPER, Justice,

dissenting.

Having successfully purged the common law of the tort of alienation of affections in Hoye v. Hoye, Ky., 824 S.W.2d 422 (1992), the majority of this Court now consigns to oblivion yet another ancient tort, the breach of promise to marry. While I claim no affection for either of these musty causes of action, I do defend this Court’s obligation to apply the law with some degree of consistency, including the application of constitutional principles to ourselves the same as we apply them to the General Assembly. In Williams v. Wilson, Ky., 972 S.W.2d 260 (1998), a majority of this Court reiterated the constitutional myth that common law causes of action which existed prior to the adoption of the present Constitution are “jural rights” which cannot be abolished. Like the cause of action for alienation of affections, the cause of action for breach of promise to marry falls into that category. Burnham v. Cornwell, 55 Ky. 284, (16 B. Mon. 284) (1855); Burks v. Shain, 5 Ky. (2 Bibb) 341 (1811). Far be it from me to defend the jural rights doctrine. Williams v. Wilson, supra, at 269-76 (dissenting opinion). However, if a pre-1891 cause of action is cloaked with constitutional protection, it is protected as well from an act of this Court as it is from an act of the legislature. Id. at 274.

I am aware that some advocates of the jural rights doctrine now assert that it applies only to “rights of action for damages for death or injuries caused by negligence.” See Fireman’s Fund Ins. Co. v. Government Employees Ins. Co., Ky., 635 S.W.2d 475, 478, n. 7 (1982), overruled on other grounds, Perkins v. Northeastern Log Homes, Ky., 808 S.W.2d 809 (1991), narrowing the scope previously established in Happy v. Erwin, Ky., 330 S.W.2d 412, 413 (1959). However, the jural right protected in Williams v. Wilson, supra, was the right to punitive damages, which are awarded not as damages to compensate for death or injuries, but to punish and deter wrongdoing. Id. at 273 (dissenting opinion), citing Hensley v. Paul Miller Ford, Inc., Ky., 508 S.W.2d 759, 762-63 (1974) and Ashland Dry Goods Co. v. Wages, 302 Ky. 577, 195 S.W.2d 312, 315 (1946). See also Kentucky Utilities Co. v. Jackson County R.E.C.C., Ky., 438 S.W.2d 788, 790 (1968), deeming a cause of action for indemnity to be a jural right, and Meyers v. Chapman Printing Co., Ky., 840 S.W.2d 814, 820 (1992), declaring that the protections contained in the Civil Rights Act are jural rights.

The majority opinion asserts that today’s decision does not implicate the jural rights doctrine at all, because “we are not eradicating the ability of a party to seek a remedy for such a wrong, but rather we are modifying the form that remedy may take.” (op. at 776.) In Williams v. Wilson, supra, the jural rights doctrine was extended past protection against the abolition of a common law right of action to protection against any impairment thereof. (The statute at issue in Williams did not abolish punitive damages, but only set standards to guide the jury in determining whether to award such damages and how much to award.) Regardless, the majority opinion states that “the action for Breach of Promise to Marry is no longer a valid cause of action before the courts of the Commonwealth.” (op. at 776.) That language can lead to but one conclusion: the cause of action for breach of promise to marry has thereby been abolished.

GRAVES and WINTERSHEIMER, JJ., join this dissent.

[No. E045200.

Fourth Dist., Div. Two.

Aug. 7, 2009.]

ELIZABETH SANCHEZ, Plaintiff and Appellant, v. COUNTY OF SAN BERNARDINO et al., Defendants and Respondents.

[CERTIFIED FOR PARTIAL PUBLICATION*]

Counsel

Law Offices of Granowitz, White and Weber and Bradley R. White for Plaintiff and Appellant.

Wagner & Pelayes, Alice E. Waters and Dennis E. Wagner for Defendant and Respondent County of San Bernardino.

Arias & Lockwood, Joseph Arias and Christopher D. Lockwood for Defendant and Respondent Dennis Hansberger.

*

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II.A., V., VI., and VII.

Opinion

RICHLI, J.

Plaintiff Elizabeth Sanchez was a high-ranking employee of the County of San Bernardino (the County), widely regarded as a “rising superstar.” Among her other accomplishments, she negotiated a labor contract with the Safety Employees Benefits Association (the Association), the labor union responsible for representing sheriff’s deputies. Thereafter, however, she and James Erwin, the president of the Association, began having “a physical romantic relationship.” She denies that this created any actual conflict of interest, because, she maintains, she was never involved in any further negotiations with either Erwin or the Association. Nevertheless, when her supervisor discovered the relationship, he insisted that she resign.

The County and Sanchez entered into a written severance agreement, which provided that neither side would disclose “the facts, events and issues which gave rise to this Agreement . . . .” Despite this confidentiality provision, newspaper articles appeared almost immediately that quoted county representatives—including Supervisor Dennis Hansberger—to the effect that Sanchez had resigned due to a “conflict of interest” arising out of an “ ‘improper’ relationship” with Erwin.

Sanchez then filed this action against the County and Hansberger for, among other things, breach of contract, promissory fraud, invasion of privacy and intentional infliction of emotional distress. The trial court granted summary adjudication on these causes of action in favor of defendants.

In the published portion of this opinion, we will hold that the trial court erred by granting summary adjudication on Sanchez’s cause of action for breach of contract. The trial court essentially reasoned that the confidentiality provision was void as against public policy, because the County supposedly had a duty to make the disclosures that it did. However, while the County may have had a duty to disclose the severance agreement itself (at least on request), it had no such duty to disclose the circumstances that gave rise to the severance agreement. Moreover, while the County claims that it had a First Amendment right to make the disclosures, any such right was waived by the confidentiality provision.

In the unpublished portion of this opinion, however, we will uphold the summary adjudication of Sanchez’s other causes of action.

I.

PROCEDURAL BACKGROUND

In 2005, Sanchez filed this action against the County and Hansberger. She asserted 10 causes of action:

First: Breach of contract (against the County only).

Second: Promissory fraud (against the County only).

Third through sixth: Slander, each based on a different set of allegedly false statements.

Seventh: Invasion of privacy by public disclosure of private facts.

Eighth: Intentional interference with prospective economic advantage.

Ninth: Misrepresentation to prevent a former employee from obtaining employment. (Lab. Code, § 1050.)

Tenth: Intentional infliction of emotional distress.

The County filed a special motion to strike (strategic lawsuit against public participation (SLAPP) motion). (Code Civ. Proc., § 425.16.) The trial court denied the motion with respect to the first, second, seventh, and tenth causes of action; however, it granted the motion with respect to the third through sixth and the eighth through ninth causes of action. Sanchez did not appeal. (See Code Civ. Proc., § 425.16, subd. (i).)

The County and Hansberger then filed motions for summary judgment on the first, second, seventh, and tenth causes of action. The trial court granted both motions. Accordingly, it entered judgment against Sanchez and in favor of the County.

The trial court ruled, however, that the third through sixth and eighth through ninth causes of action were still pending as against as against Hansberger, because he had neither filed a SLAPP motion of his own nor joined in the County’s. Hansberger therefore brought a second motion for summary judgment with respect to the remaining causes of action. Sanchez did not oppose Hansberger’s second motion for summary judgment, which was granted. The trial court then entered judgment against Sanchez and in favor of Hansberger.

Sanchez filed a timely notice of appeal from each judgment.

II.

FACTUAL BACKGROUND

A. Preliminary Evidentiary Issues.*

B. Facts Shown by the Evidence.

Sanchez began working for the County in 1987. Over the years, she was given a number of promotions. In July 2000, she was named chief of the employee relations division. As such, she was the County’s chief labor negotiator and its principal advisor on employee relations.

Around September 2002, the County began negotiations with the Association toward a new memorandum of understanding (MOU).1 Sanchez was the chief negotiator for the County. James Erwin was the president of the Association. However, he was not the lead negotiator for the Association, and he participated in the negotiations over the MOU only infrequently. By March 2003, the board of supervisors had adopted the MOU.

In May 2003, Sanchez and Erwin “began a physical romantic relationship.” At the time, each of them was already married to someone else.

The County’s personnel rules included the following “Conflict of Interest” provision: “No official or employee . . . shall have a financial or other personal interest or association which is in conflict with the proper discharge of official duties or would tend to impair independence of judgment or action in the performance of official duties. Personal as distinguished from financial interest includes an interest arising from blood or marriage relationships or close business, personal, or political association.”

Sanchez recognized that the relationship was “inappropriate,” but only because there could be “the appearance of a conflict of interest”; in her opinion, there was never any actual conflict of interest. As she acknowledged, it was theoretically possible that issues could have arisen regarding an amendment or an interpretation of the MOU such that she would have had an actual conflict of interest. However, we assume, for purposes of argument, that there was a triable issue of fact as to whether this ever actually occurred once the affair was in progress.2

After the affair had begun, Erwin and Sanchez gave each other a number of gifts. Erwin’s gifts to Sanchez included diamond earrings, a necklace, and a $350 Raymond Weil watch. In October 2003, he gave her $5,000 in cash. Sometime in 2004, he gave her an additional $2,000 in cash.

Sanchez was legally required to disclose most gifts and loans that she received by filing a “Statement of Economic Interests,” also known as a “form 700.” However, she did not disclose any of these gifts from Erwin. She relied on legal advice from county counsel to the effect that she was not required to disclose gifts received in the context of a dating relationship. The Fair Political Practices Commission had in fact issued an advice letter stating, “Gifts of a personal nature received in a ‘bona fide dating relationship’ are not subject to the reporting or gift limitation provisions of the [Political Reform] Act.” (Boldface omitted.)

In July 2004, Sanchez was promoted to director of human resources. At. that point, her supervisor was County Administrative Officer Mark Uffer. By August 2004, Uffer had heard a rumor about a relationship between Sanchez and Erwin. He “confronted” Sanchez about this, but she “lied to him about the existence of [the] relationship . . . .”

Meanwhile, in December 2003, Sanchez had filed for divorce. In September 2004, her divorce became final. By October or November 2004, however, her relationship with Erwin had become strained.

On December 14, 2004, Erwin drove Sanchez to a restaurant for lunch. Once there, Sanchez broke up with him. He was angry and remarked, “You better find another job.” She took this as a threat. She told him to leave the restaurant without her. She then called Uffer and asked him for a ride back to the office. During the ride, she disclosed the true nature of her relationship with Erwin.

On December 20, 2004, Uffer told Sanchez that she needed to resign. He presented her with a “Compromise, Release and Settlement Agreement” (some capitalization omitted; hereafter Severance Agreement) that had been drafted by county counsel. It provided that Sanchez would execute a letter of resignation immediately, although her resignation would not be effective until April 20, 2004; until then, she would be on paid leave.

It also included the following confidentiality provision: “To the maximum extent permitted by law, the parties further agree that this Agreement, the terms and conditions of this Agreement, the facts, events and issues which gave rise to this Agreement, and any and all actions by Ms. Sanchez and the County in accordance therewith, are strictly confidential and shall not be disclosed or discussed with any other persons, entities or organizations, whether within or without the County, except as may be required by applicable law.” Sanchez accepted and signed the Severance Agreement.

Starting on December 22, 2004, a number of newspaper articles reported on Sanchez’s resignation. They named Uffer and Hansberger as sources. Hansberger reportedly stated that Sanchez had “resigned after disclosing that she had an improper relationship with [Erwin,] the president of the union that represents sheriff’s deputies . . . .” Uffer reportedly stated that Sanchez had “created a conflict of interest that required her to leave,” although he indicated that this was “a conflict of the heart,” rather than a financial or legal conflict.

Some of the articles made it clear that the supposed conflict had not existed when Sanchez was negotiating the MOU. However, an article in the Los Angeles Times was somewhat more equivocal; it stated that “Sanchez’s conflict of interest grew out of that negotiation process.”

In January 2005, Uffer directed Sanchez to file amended form 700’s reflecting any and all gifts or loans from Erwin. Accordingly, she filed amended form 700’s. Even though the $5,000 and $2,000 had been gifts, she reported them as loans. She testified, however, that this was Uffer’s idea.

Shortly thereafter, there was a new round of articles, again reporting that Sanchez had resigned after disclosing her affair with Erwin. These articles also reported for the first time—apparently based on Sanchez’s amended form 700’s—that Sanchez had received gifts and a loan from Erwin. Hansberger reportedly stated that “Erwin knew that a loan and gifts he gave Sanchez while their relationship was secret made her vulnerable to pressure to grant the union concessions.” Hansberger also stated that Sanchez had “created an intolerable conflict of interest.” He added, “You do not have a personal relationship with the people on the opposite end of the negotiating table . . . .”

Uffer retained outside counsel to investigate whether Sanchez’s relationship with Erwin had violated County policy. On February 9, 2005, the report by outside counsel (Andrus Report) was completed. It accepted that Sanchez and Erwin’s personal relationship had not begun until May 2003. It concluded that:

“1. The relationship between . . . Sanchez and . . . Erwin violated the County’s Personnel Rule ....

“2. The relationship between . . . Sanchez and . . . Erwin did not have an adverse financial impact on [the] County; nor was there direct evidence that the County was disadvantaged by the relationship in any specific manner.” (Underscoring omitted.)

On April 29, 2005, the County issued a press release setting forth the basic conclusions of the Andrus Report. This resulted in still more newspaper articles. Hansberger was said to disagree with the Andrus Report. He argued that, during the affair, the board had taken further action to approve the MOU. (See fin. 2, ante.) He was quoted as saying, “ ‘Of course it is injurious to the county. Deputies who retired at age 50 could be earning 100 percent or more than 100 percent based on this package.’ ” He also reportedly believed that Sanchez had been required to disclose the gifts from Erwin, because “[t]wo people married to others cannot have a bona fide dating relationship with each other . . . .”

Also in April 2005, the Association hired Erwin as its chief of administration. In a newspaper article on the hiring, Hansberger was said to have commented that “he believes Erwin giving Sanchez gifts at a time when they were negotiating multi-million-dollar contracts amounted to bribery.”

Meanwhile, around January 2005, Sanchez and Erwin had reconciled. At least as of mid-2007, they continued to have a “serious, ongoing, personal and romantic relationship . . . .”

III.

STANDARD OF REVIEW

“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476 [110 Cal.Rptr.2d 370, 28 P.3d 116].) “[I]n moving for summary judgment, a ‘defendant . . . has met’ his ‘burden ... if’ he ‘has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant. . . has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. . . .’ [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 [107 Cal.Rptr.2d 841, 24 P.3d 493].) “We review the trial court’s decision de novo .... [Citations.]” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66 [99 Cal.Rptr.2d 316, 5 P.3d 874].)

IV.

FIRST CAUSE OF ACTION: BREACH OF CONTRACT

A. Additional Factual and Procedural Background.

The County argued that it was entitled to summary judgment on the entire complaint under the First Amendment.

The County also argued that it was entitled to summary adjudication on the first cause of action, for breach of contract, because (1) it had a duty to disclose Sanchez’s misconduct, and therefore (a) the confidentiality provision was void as against public policy, and (b) the County’s disclosures were privileged under Civil Code section 47; (2) Sanchez herself had breached and/or waived the confidentiality provision by disclosing the circumstances of her resignation to her family and to Erwin; and (3) Sanchez could not establish that the County’s disclosures had caused her any damages.

The trial court granted summary adjudication on the first cause of action on the ground that the confidentiality provision was void as against public policy.

B. Analysis.

1. The validity of the confidentiality provision.

In arguing that the confidentiality provision was contrary to public policy and hence void, the County relies on BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742 [49 Cal.Rptr.3d 519].

The precise issue in BRV was the scope of the personnel file exception to the California Public Records Act (Public Records Act; Gov. Code, § 6250 et seq.). The Public Records Act in general provides that “every person has a right to inspect any public record . . . .” (Gov. Code, § 6253, subd. (a).) However, it also creates a number of exceptions, including an exception for “[personnel . . . files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” (Gov. Code, § 6254, subd. (c).)

In BRV, a school district had received complaints about Robert Morris, who was the superintendent of the district as well as the principal of a high school in the district. (BRV, Inc. v. Superior Court, supra, 143 Cal.App.4th at p. 747.) It asked Diane Davis, a private investigator, to interview witnesses and to produce a report “regarding the truth of the complaints and whether the evidence provided by the complainants supported the allegations.” (Id. at pp. 747-748.) After Davis submitted her report to the district, the district and Morris entered into an agreement pursuant to which Morris resigned, and the district promised to seal the Davis report and not to release any information about the investigation “ ‘except as required by law or in accordance with any court order or subpoena.’ ” (Id. at pp. 748-749.) When a newspaper made a Public Records Act request for the Davis report, the district refused to release it. The newspaper then sued. The trial court ruled that almost all of the report was exempt from disclosure under the personnel file exemption. (143 Cal.App.4th at p. 749.)

The appellate court reversed, holding that, under the balancing test applicable to the personnel file exemption (BRV, Inc. v. Superior Court, supra, 143 Cal.App.4th at p. 755), the public’s interest in disclosure outweighed Morris’s “significant privacy interest.” (Id. at p. 757; see also id. at pp. 757-759.) It observed: “Without doubt, the public has a significant interest in the professional competence and conduct of a school district superintendent and high school principal. It also has a significant interest in knowing how the District’s Board conducts its business, and in particular, how the Board responds to allegations of misconduct committed by the District’s chief administrator.” (Id. at p. 757.) “Here, members of the public were greatly concerned about the behavior of the city’s high school superintendent and his governing elected board in responding to their complaints. Indeed, from the public’s viewpoint, the District appeared to have entered into a ‘sweetheart deal’ to buy out the superintendent from his employment without having to respond to the public accusations of misconduct. The public’s interest in judging how the elected board treated this situation far outweighed the Board’s or Morris’s interest in keeping the matter quiet. Because of Morris’s position of authority as a public official and the public nature of the allegations, the public’s interest in disclosure outweighed Morris’s interest in preventing disclosure of the Davis report.” (Id. at p. 759.)

Sanchez argues that BRV is not controlling here, for a number of reasons. For one thing, she argues that it never held that the confidentiality provision in the case before it was against public policy or void. The BRV court, however, did note the existence of the confidentiality provision; plainly it was aware that the provision was at least potentially significant. Although it did not mention it again, we believe that is because the confidentiality provision there—just like the confidentiality provision in this case—expressly carved out any disclosures that were required by law. Once the BRV court held that the Public Records Act required the disclosure of the Davis report, it implicitly—but necessarily—also held that its disclosure did not violate the confidentiality provision. Had there not been such a “carve out,” however, the confidentiality provision would have violated the Public Records Act and therefore would have been void as against public policy. (Cf. Cariveau v. Halferty (2000) 83 Cal.App.4th 126, 133-137 [99 Cal.Rptr.2d 417] [confidentiality provision in settlement agreement between broker and customer was against public policy and void because it conflicted with regulatory rules requiring disclosure].)

Sanchez also argues that BRV is not controlling because it involved a request for a particular document under the Public Records Act. This time, we agree. Here, there has been no such request. Moreover, when the County made its disclosures, the information it disclosed was not contained in any particular document. Hence, the County had no duty to disclose it, and an agreement not to disclose it was not against public policy.

If there had been a Public Records Act request for the Severance Agreement itself, arguably the County would have had to disclose it. This would not have violated the confidentiality provision, because it would have been a disclosure “required by applicable law.” However, it does not appear that there ever was such a request. Even more important, merely disclosing the Severance Agreement would not have disclosed any of the circumstances surrounding Sanchez’s resignation.

Sometime after the County made its initial disclosures, it received the Andrus Report. However, unlike the Davis report in BRV, which was prepared by a private investigator, the Andrus Report was prepared by an attorney. Accordingly, the Andrus Report was prominently labeled, “Attorney-Client Confidential Communication.” (Italics and underscoring omitted.) The Public Records Act does not require the disclosure of a document that is subject to the attorney-client privilege. (Gov. Code, § 6254, subd. (k); STI Outdoor v. Superior Court (2001) 91 Cal.App.4th 334, 340-341 [109 Cal.Rptr.2d 865].) Thus, unless and until the County waived the privilege, the Public Records Act did not require it to disclose the Andrus Report. Moreover, the confidentiality provision essentially made it a breach of contract for the County to waive the privilege.

The County does not point to any basis for holding the confidentiality provision void as against public policy other than under BRV, and hence under the Public Records Act. Admittedly, there is a broad, general public policy in favor of open government. Moreover, as we will hold in the unpublished portion of this opinion, the circumstances of Sanchez’s resignation were a matter of legitimate public concern. On the other hand, this policy must be balanced against the broad, general public policy in favor of privacy. (Cal. Const., art. I, § 1; see also Gov. Code, § 6250 [“the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state”].)

“Historically, th[e California Supreme C]ourt has been reluctant to declare contractual provisions void or unenforceable on public policy grounds without firm legislative guidance. [Citations.]” (Santisas v. Goodin (1998) 17 Cal.4th 599, 621 [71 Cal.Rptr.2d 830, 951 P.2d 399].) “ ‘ “[P]ublic policy” as a concept is notoriously resistant to precise definition, and . . . courts should venture into this area, if at all, with great care and due deference to the judgment of the legislative branch, “lest they mistake their own predilections for public policy which deserves recognition at law.” ’ [Citation.]” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 185 [83 Cal.Rptr.2d 548, 973 P.2d 527].) Thus, in the absence of a statute that required the County to make the disclosures that it did, we cannot say that the County’s agreement not to make such disclosures violated public policy.

We therefore conclude that the trial court erred by granting summary adjudication on the first cause of action on the ground that the confidentiality provision was void.3

2. The First Amendment.

For purposes of our present discussion, we may assume that the County’s statements were protected under the First Amendment. Even if so, the County can be held liable for a breach of the confidentiality provision.

“[I]t is possible to waive even First Amendment free speech rights by contract.” (ITT Telecom Products Corp. v. Dooley, supra, 214 Cal.App.3d at p. 319; accord, Charter Communications, Inc. v. County of Santa Cruz (9th Cir. 2002) 304 F.3d 927, 935, fn. 9.) “ ‘ “[I]t is well established that courts closely scrutinize waivers of constitutional rights, and ‘indulge every reasonable presumption against a waiver.’ ” ’ [Citation.]” (Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1400 [88 Cal.Rptr.2d 843].) “ ‘A waiver of First Amendment rights may only be made by a “clear and compelling” relinquishment of them. [Citation.] . . .’ [Citation.]” (City of Glendale v. George (1989) 208 Cal.App.3d 1394, 1398 [256 Cal.Rptr. 742].) Here, however, we see no way to construe the confidentiality provision except as a waiver of whatever rights the County would otherwise have had to disclose the circumstances of Sanchez’s resignation. It had been drafted by county counsel; presumably the County knew what it was doing.

3. Waiver of the confidentiality provision.

a. Forfeiture/abandonment.

The County briefly asserts that it was entitled to summary adjudication on the first cause of action in any event because Sanchez waived the confidentiality provision. However, it does not support this assertion with any reasoned argument or citation of authority. Its brief does not so much as mention any of the facts that it cited and relied on below in support of its waiver claim.

Thus, the County appears to have all but abandoned this claim. (People v. Stanley (1995) 10 Cal.4th 764, 793 [42 Cal.Rptr.2d 543, 897 P.2d 481].)

Nevertheless, “[i]t is the appellant’s burden to demonstrate the existence of reversible error. [Citation.]” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766 [115 Cal.Rptr.2d 705] [Fourth Dist., Div. Two].) Even if the County had not filed a respondent’s brief at all, Sanchez would not necessarily be entitled to prevail on the waiver issue. (In re Marriage of Davies (1983) 143 Cal.App.3d 851, 854 [192 Cal.Rptr. 212].) Accordingly, if only out of an excess of caution, we address the issue on the merits.

b. Additional factual and procedural background.

On December 21, 2004, Sanchez learned that the County and Hansberger had given information to the press and that there were going to be newspaper articles about her resignation. As a result, she contacted a few people close to her in an effort to do some “damage control.”

She called her parents and “gave them very general information about what [she] anticipated was going to be in the newspaper the next day.” She also called her by then ex-husband; she told him for the first time about her relationship with Erwin and added that there was going to be a newspaper article about it.

Sometime before December 23, 2004, Sanchez also told Erwin as well as several friends and coworkers that she had resigned. Later, in January or February 2005, she showed the Severance Agreement itself to Erwin.

c. Analysis.

A party may waive a contract right by “ ‘conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished.’ [Citation.]” (Pacific Business Connections, Inc. v. St. Paul Surplus Lines Ins. Co. (2007) 150 Cal.App.4th 517, 525 [58 Cal.Rptr.3d 450]; accord, Rheem Mfg. Co. v. United States (1962) 57 Cal.2d 621, 626 [21 Cal.Rptr. 802, 371 P.2d 578].)

Here, Sanchez disclosed the circumstances of her resignation only to a handful of people in her immediate circle. A jury could reasonably find that this was not inconsistent with her contractual right to prevent the County from disclosing those circumstances more broadly to the news media.

Even more to the point, Sanchez made her disclosures only after she learned that the County itself had already violated the confidentiality provision. Indeed, she made some of them to protect herself from the consequences of the County’s violation—to make sure that her friends and family would hear about her affair and resignation from her before they read about them in the papers. A reasonable jury could conclude that the County’s breach of the confidentiality provision excused any further performance by Sanchez. (See generally 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 813, p. 906.)

4. Evidence of damages.

Finally, the County argues that it was entitled to summary adjudication on the first cause of action because Sanchez could not prove any damages caused by its breach.

a. Additional factual and procedural background.

After her resignation, Sanchez applied for some 200 to 250 jobs. She submitted several job applications that got as far as the background- and reference-check stage before she was told that she would not be hired. She concluded that the County’s disclosures “interfered . . . with [her] capacity to get a job.”

One potential public sector employer specifically told Sanchez that, based on its check of her background or references, it could not offer her a job. During an interview with another potential employer, the interviewer indicated that he “was well aware of the situation with the County”; she did not get that job.

A representative of the County of Riverside testified that at one point, he considered hiring Sanchez, and “the negative newspaper articles . . . were definitely a factor in [his] decision not to pursue her[.]”

Sometime after May 2005, Sanchez finally got a job with a hospital. However, her “overall compensation package” was less than she had enjoyed in her county job.

b. Analysis.

This evidence—particularly the evidence regarding the loss of a likely job with the County of Riverside—was not merely speculative. It was sufficient to support a jury finding that the County’s breach of the confidentiality provision caused Sanchez to suffer damages in the form of lost employment.

We therefore conclude that the trial court erred by granting summary adjudication on the first cause of action.

V.-VII.*

vra.

DISPOSITION

To the extent that the order granting summary judgment granted summary adjudication on the first cause of action, it is reversed. To the extent that it granted summary adjudication on the second, seventh, and tenth causes of action, it is affirmed. The judgment in favor of the County is reversed. The judgment in favor of Hansberger is affirmed. Sanchez is awarded costs on appeal against the County; Hansberger is awarded costs on appeal against Sanchez.

Ramirez, P. J., and Miller, J., concurred.

Respondents’ petition for review by the Supreme Court was denied November 10, 2009, S176369. Baxter, J., was of the opinion that the petition should be granted.

*

See footnote, ante, page 516.

1

Technically, two MOU’s were negotiated concurrently, one covering the safety unit and one covering the safety management and supervisory unit. The distinction between them is not significant for our purposes.

2

2 Defendants identify four issues that they claim arose after the affair was already in progress and thus created an actual conflict of interest:

1. The “3 percent at 50” retirement formula: One provision of the MOU required the County to adopt a certain retirement formula, contingent upon the settlement of some related litigation. Apparently the settlement did occur, and by October 2003, the board had adopted the formula. However, there was evidence that its adoption was ministerial; if the board had not adopted the formula, the County would have been in breach of the MOU. In any event, Sanchez “was not involved in those things.”

2. Application to 30-year employees: Around October 2003, Sanchez was called upon to decide whether the MOU required 30-year employees to make additional contributions in order to qualify for “3 percent at 50.” However, there was evidence that this was a dispute between the County and the San Bernardino County Employee Retirement Association, not the Association; the Association actually supported the County’s position.

3. Creating an additional bargaining unit: At some point during 2004, the Association wanted to create an additional bargaining unit. Sanchez “was dealing with” Erwin concerning this issue. However, she opposed his position, and she so advised the board.

4. Merging coroner’s investigators into the sheriff’s department: The evidence on this point consisted of a series of e-mails sent to or from Sanchez. The e-mails are hardly self-explanatory; they presuppose a certain preexisting familiarity with the subject. No witness ever testified to what the e-mails meant. We cannot say that they demonstrated an actual conflict beyond a triable issue of fact.

3

In this appeal, the County has not reasserted its contention below that the alleged breach of contract was privileged under Civil Code section 47. That statute, as relevant here, provides that a publication or broadcast made “[i]n the proper discharge of an official duty” is privileged. (Civ. Code, § 47, subd. (a).) We have already concluded that the County had no duty to make the disclosures that it did. Moreover, it has been held that the privilege does not protect voluntary statements that breach an express contract of confidentiality or nondisclosure. (Wentland v. Wara (2005) 126 Cal.App.4th 1484, 1490-1494 [25 Cal.Rptr.3d 109]; Paul v. Friedman (2002) 95 Cal.App.4th 853, 869 [117 Cal.Rptr.2d 82]; ITT Telecom Products Corp. v. Dooley (1989) 214 Cal.App.3d 307, 317-320 [262 Cal.Rptr. 773].) We therefore conclude that the County’s disclosures were not statutorily privileged.

*

See footnote, ante, page 516.

Harold J. Cassidy and Alan J. Karcher argued the cause for appellants, Mary Beth and Richard Whitehead (Cassidy, Foss & San Filippo, attorneys; Harold J. Cassidy, Alan J. Karcher, Robert W. Ruggieri, Randolph H. Wolf, and Louis N. Rainone, on the briefs).

Gary N. Skoloff argued the cause for respondents, William and Elizabeth Stern (Skoloff & Wolfe, attorneys; Gary N. Skoloff, Francis W. Donahue, and Edward J. O'Donnell, on the brief).

Lorraine A. Abraham, Guardian ad litem, argued the cause pro se (Lorraine A. Abraham, attorney; Lorraine A. Abraham and Steven T. Kearns, on the brief).

Annette M. Tobia submitted a brief on behalf of amicus curiae Dr. Betsy P. Aigen, (Spivak & Tobia, attorneys).

George B. Gelman submitted a brief on behalf of amicus curiae American Adoption Congress (Gelman & McNish, attorneys).

Steven N. Taieb and Steven F. McDowell, a member of the Wisconsin bar, submitted a brief on behalf of amicus curiae Catholic League for Religious and Civil Rights.

Steven P. Weissman submitted a brief on behalf of amicus curiae Communications Workers of America, AFL-CIO.

John R. Holsinger, Merrill O'Brien, Mary Sue Henifin, and John H. Hall, and Terry E. Thornton, members of the New York bar, submitted a brief on behalf of amicus curiae Concerned United Birthparents, Inc. (Ellenport & Holsinger, attorneys).

David H. Dugan, III, and Joy R. Jowdy, a member of the Texas bar, submitted a brief on behalf of amici curiae Concerned Women for America, Eagle Forum, National Legal Foundation, Family Research Council of America, United Families Foundation, and Judicial Reform Project.

Alfred F. Russo and Andrew C. Kimbrell, a member of the Pennsylvania bar, and Edward Lee Rogers, a member of the District of Columbia bar, submitted a brief on behalf of amici curiae The Foundation on Economic Trends, Jeremy Rifkin, Betty Friedan, Gloria Steinem, Gena Corea, Barbara Katz-Rothman, Lois Gould, Marilyn French, Hazel Henderson, Grace Paley, Evelyn Fox Keller, Shelly Mindin, Rita Arditti, Dr. Janice Raymond, Dr. Michelle Harrison, Dr. W.D. White, Sybil Shainwald, Mary Daly, Cathleen Lahay, Karen Malpede, Phylis Chesler, Kristen Golden, Letty Cottin Pogrebin, and Ynestra King (Russo & Casey, attorneys).

Louis E. Della Torre, Jr., submitted a brief on behalf of amicus curiae The Gruter Institute for Law and Behavioral Research, Inc. (Schumann, Hession, Kennelly & Dorment, attorneys).

Kathleen E. Kitson, Sharon F. Liebhaber, and Myra Sun, a member of the Washington bar, submitted a brief on behalf of amici curiae Hudson County Legal Services Corporation and National Center on Women and Family Law, Inc. (Timothy K. Madden, Director, Hudson County Legal Services Corporation, attorney).

Priscilla Read Chenoweth submitted a brief on behalf of amici curiae Committee for Mother and Child Rights, Inc. and Origins.

Herbert D. Hinkle submitted a brief on behalf of amicus curiae National Association of Surrogate Mothers.

Joseph M. Nardi, Jr., and Edward F. Canfield, a member of the District of Columbia bar, submitted a brief on behalf of amicus curiae The National Committee for Adoption, Inc. (Lario, Nardi & Gleaner, attorneys).

Charlotte Rosin, pro se, submitted a letter in lieu of brief on behalf of amicus curiae National Infertility Network Exchange.

William F. Bolan, Jr., submitted a brief on behalf of amicus curiae New Jersey Catholic Conference.

Paul J. McCurrie and Cyril C. Means, Jr., a member of the Michigan bar, with whom Priscilla Read Chenoweth and Cathleen M. Halko were on the brief, submitted a brief on behalf of amici curiae Odyssey Institute International, Inc., Odyssey Institute of Connecticut, Inc., Florence Fisher, Judianne Densen-Gerber, Senator Connie Binsfeld, and Angela Holder.

Merrilee A. Scilla, pro se, submitted a letter in lieu of brief on behalf of amicus curiae RESOLVE of Central New Jersey.

Jerrold N. Kaminsky submitted a brief on behalf of amicus curiae RESOLVE, Inc.

Richard J. Traynor and John W. Whitehead, a member of the Virginia bar, and David A. French, a member of the Michigan bar, submitted a brief on behalf of amicus curiae The Rutherford Institute (Traynor and Hogan, attorneys).

Nadine Taub submitted a brief on behalf of amici curiae Women's Rights Litigation Clinic at Rutgers Law School, The New York State Coalition on Women's Legislative Issues, and the National Emergency Civil Liberties Committee.

Table of Contents     

Introduction 410

I.Facts 411

II.Invalidity and Unenforceability of Surrogacy Contract 421

A. Conflict with Statutory Provisions 423

B. Public Policy Considerations 434

III. Termination 444

IV. Constitutional Issues 447

V. Custody 452

VI. Visitation 463

Conclusion 468

The opinion of the Court was delivered by WILENTZ, C.J.

In this matter the Court is asked to determine the validity of a contract that purports to provide a new way of bringing children into a family. For a fee of $10,000, a woman agrees to be artificially inseminated with the semen of another woman's husband; she is to conceive a child, carry it to term, and after its birth surrender it to the natural father and his wife. The intent of the contract is that the child's natural mother will thereafter be forever separated from her child. The wife is to adopt the child, and she and the natural father are to be [411] regarded as its parents for all purposes. The contract providing for this is called a "surrogacy contract," the natural mother inappropriately called the "surrogate mother."

We invalidate the surrogacy contract because it conflicts with the law and public policy of this State. While we recognize the depth of the yearning of infertile couples to have their own children, we find the payment of money to a "surrogate" mother illegal, perhaps criminal, and potentially degrading to women. Although in this case we grant custody to the natural father, the evidence having clearly proved such custody to be in the best interests of the infant, we void both the termination of the surrogate mother's parental rights and the adoption of the child by the wife/stepparent. We thus restore the "surrogate" as the mother of the child. We remand the issue of the natural mother's visitation rights to the trial court, since that issue was not reached below and the record before us is not sufficient to permit us to decide it de novo.

We find no offense to our present laws where a woman voluntarily and without payment agrees to act as a "surrogate" mother, provided that she is not subject to a binding agreement to surrender her child. Moreover, our holding today does not preclude the Legislature from altering the current statutory scheme, within constitutional limits, so as to permit surrogacy contracts. Under current law, however, the surrogacy agreement before us is illegal and invalid.

I.

FACTS

In February 1985, William Stern and Mary Beth Whitehead entered into a surrogacy contract. It recited that Stern's wife, Elizabeth, was infertile, that they wanted a child, and that Mrs. Whitehead was willing to provide that child as the mother with Mr. Stern as the father.

The contract provided that through artificial insemination using Mr. Stern's sperm, Mrs. Whitehead would become pregnant, carry the child to term, bear it, deliver it to the Sterns, and thereafter do whatever was necessary to terminate her maternal rights so that Mrs. Stern could thereafter adopt the child. Mrs. Whitehead's husband, Richard,^[1] was also a party to the contract; Mrs. Stern was not. Mr. Whitehead promised to do all acts necessary to rebut the presumption of paternity under the Parentage Act. N.J.S.A. 9:17-43a(1), -44a. Although Mrs. Stern was not a party to the surrogacy agreement, the contract gave her sole custody of the child in the event of Mr. Stern's death. Mrs. Stern's status as a nonparty to the surrogate parenting agreement presumably was to avoid the application of the baby-selling statute to this arrangement. N.J.S.A. 9:3-54.

Mr. Stern, on his part, agreed to attempt the artificial insemination and to pay Mrs. Whitehead $10,000 after the child's birth, on its delivery to him. In a separate contract, Mr. Stern agreed to pay $7,500 to the Infertility Center of New York ("ICNY"). The Center's advertising campaigns solicit surrogate mothers and encourage infertile couples to consider surrogacy. ICNY arranged for the surrogacy contract by bringing the parties together, explaining the process to them, furnishing the contractual form,^[2] and providing legal counsel.

The history of the parties' involvement in this arrangement suggests their good faith. William and Elizabeth Stern were married in July 1974, having met at the University of Michigan, where both were Ph.D. candidates. Due to financial considerations and Mrs. Stern's pursuit of a medical degree and residency, they decided to defer starting a family until 1981. Before then, however, Mrs. Stern learned that she might have multiple sclerosis and that the disease in some cases renders pregnancy a serious health risk. Her anxiety appears to have exceeded the actual risk, which current medical authorities assess as minimal. Nonetheless that anxiety was evidently quite real, Mrs. Stern fearing that pregnancy might precipitate blindness, paraplegia, or other forms of debilitation. Based on the perceived risk, the Sterns decided to forego having their own children. The decision had special significance for Mr. Stern. Most of his family had been destroyed in the Holocaust. As the family's only survivor, he very much wanted to continue his bloodline.

Initially the Sterns considered adoption, but were discouraged by the substantial delay apparently involved and by the potential problem they saw arising from their age and their differing religious backgrounds. They were most eager for some other means to start a family.

The paths of Mrs. Whitehead and the Sterns to surrogacy were similar. Both responded to advertising by ICNY. The Sterns' response, following their inquiries into adoption, was the result of their long-standing decision to have a child. Mrs. Whitehead's response apparently resulted from her sympathy with family members and others who could have no children (she stated that she wanted to give another couple the "gift of life"); she also wanted the $10,000 to help her family.

Both parties, undoubtedly because of their own self-interest, were less sensitive to the implications of the transaction than they might otherwise have been. Mrs. Whitehead, for instance, appears not to have been concerned about whether the Sterns would make good parents for her child; the Sterns, on their part, while conscious of the obvious possibility that surrendering the child might cause grief to Mrs. Whitehead, overcame their qualms because of their desire for a child. At any rate, both the Sterns and Mrs. Whitehead were committed to the arrangement; both thought it right and constructive.

Mrs. Whitehead had reached her decision concerning surrogacy before the Sterns, and had actually been involved as a potential surrogate mother with another couple. After numerous unsuccessful artificial inseminations, that effort was abandoned. Thereafter, the Sterns learned of the Infertility Center, the possibilities of surrogacy, and of Mary Beth Whitehead. The two couples met to discuss the surrogacy arrangement and decided to go forward. On February 6, 1985, Mr. Stern and Mr. and Mrs. Whitehead executed the surrogate parenting agreement. After several artificial inseminations over a period of months, Mrs. Whitehead became pregnant. The pregnancy was uneventful and on March 27, 1986, Baby M was born.

Not wishing anyone at the hospital to be aware of the surrogacy arrangement, Mr. and Mrs. Whitehead appeared to all as the proud parents of a healthy female child. Her birth certificate indicated her name to be Sara Elizabeth Whitehead and her father to be Richard Whitehead. In accordance with Mrs. Whitehead's request, the Sterns visited the hospital unobtrusively to see the newborn child.

Mrs. Whitehead realized, almost from the moment of birth, that she could not part with this child. She had felt a bond with it even during pregnancy. Some indication of the attachment was conveyed to the Sterns at the hospital when they told Mrs. Whitehead what they were going to name the baby. She apparently broke into tears and indicated that she did not know if she could give up the child. She talked about how the baby looked like her other daughter, and made it clear that she was experiencing great difficulty with the decision.

Nonetheless, Mrs. Whitehead was, for the moment, true to her word. Despite powerful inclinations to the contrary, she turned her child over to the Sterns on March 30 at the Whiteheads' home.

The Sterns were thrilled with their new child. They had planned extensively for its arrival, far beyond the practical furnishing of a room for her. It was a time of joyful celebration — not just for them but for their friends as well. The Sterns looked forward to raising their daughter, whom they named Melissa. While aware by then that Mrs. Whitehead was undergoing an emotional crisis, they were as yet not cognizant of the depth of that crisis and its implications for their newly-enlarged family.

Later in the evening of March 30, Mrs. Whitehead became deeply disturbed, disconsolate, stricken with unbearable sadness. She had to have her child. She could not eat, sleep, or concentrate on anything other than her need for her baby. The next day she went to the Sterns' home and told them how much she was suffering.

The depth of Mrs. Whitehead's despair surprised and frightened the Sterns. She told them that she could not live without her baby, that she must have her, even if only for one week, that thereafter she would surrender her child. The Sterns, concerned that Mrs. Whitehead might indeed commit suicide, not wanting under any circumstances to risk that, and in any event believing that Mrs. Whitehead would keep her word, turned the child over to her. It was not until four months later, after a series of attempts to regain possession of the child, that Melissa was returned to the Sterns, having been forcibly removed from the home where she was then living with Mr. and Mrs. Whitehead, the home in Florida owned by Mary Beth Whitehead's parents.

The struggle over Baby M began when it became apparent that Mrs. Whitehead could not return the child to Mr. Stern. Due to Mrs. Whitehead's refusal to relinquish the baby, Mr. Stern filed a complaint seeking enforcement of the surrogacy contract. He alleged, accurately, that Mrs. Whitehead had not only refused to comply with the surrogacy contract but had threatened to flee from New Jersey with the child in order to avoid even the possibility of his obtaining custody. The court papers asserted that if Mrs. Whitehead were to be given notice of the application for an order requiring her to relinquish custody, she would, prior to the hearing, leave the state with the baby. And that is precisely what she did. After the order was entered, ex parte, the process server, aided by the police, in the presence of the Sterns, entered Mrs. Whitehead's home to execute the order. Mr. Whitehead fled with the child, who had been handed to him through a window while those who came to enforce the order were thrown off balance by a dispute over the child's current name.

The Whiteheads immediately fled to Florida with Baby M. They stayed initially with Mrs. Whitehead's parents, where one of Mrs. Whitehead's children had been living. For the next three months, the Whiteheads and Melissa lived at roughly twenty different hotels, motels, and homes in order to avoid apprehension. From time to time Mrs. Whitehead would call Mr. Stern to discuss the matter; the conversations, recorded by Mr. Stern on advice of counsel, show an escalating dispute about rights, morality, and power, accompanied by threats of Mrs. Whitehead to kill herself, to kill the child, and falsely to accuse Mr. Stern of sexually molesting Mrs. Whitehead's other daughter.

Eventually the Sterns discovered where the Whiteheads were staying, commenced supplementary proceedings in Florida, and obtained an order requiring the Whiteheads to turn over the child. Police in Florida enforced the order, forcibly removing the child from her grandparents' home. She was soon thereafter brought to New Jersey and turned over to the Sterns. The prior order of the court, issued ex parte, awarding custody of the child to the Sterns pendente lite, was reaffirmed by the trial court after consideration of the certified representations of the parties (both represented by counsel) concerning the unusual sequence of events that had unfolded. Pending final judgment, Mrs. Whitehead was awarded limited visitation with Baby M.

The Sterns' complaint, in addition to seeking possession and ultimately custody of the child, sought enforcement of the surrogacy contract. Pursuant to the contract, it asked that the child be permanently placed in their custody, that Mrs. Whitehead's parental rights be terminated, and that Mrs. Stern be allowed to adopt the child, i.e., that, for all purposes, Melissa become the Sterns' child.

The trial took thirty-two days over a period of more than two months. It included numerous interlocutory appeals and attempted interlocutory appeals. There were twenty-three witnesses to the facts recited above and fifteen expert witnesses, eleven testifying on the issue of custody and four on the subject of Mrs. Stern's multiple sclerosis; the bulk of the testimony was devoted to determining the parenting arrangement most compatible with the child's best interests. Soon after the conclusion of the trial, the trial court announced its opinion from the bench. 217 N.J. Super. 313 (1987). It held that the surrogacy contract was valid; ordered that Mrs. Whitehead's parental rights be terminated and that sole custody of the child be granted to Mr. Stern; and, after hearing brief testimony from Mrs. Stern, immediately entered an order allowing the adoption of Melissa by Mrs. Stern, all in accordance with the surrogacy contract. Pending the outcome of the appeal, we granted a continuation of visitation to Mrs. Whitehead, although slightly more limited than the visitation allowed during the trial.

Although clearly expressing its view that the surrogacy contract was valid, the trial court devoted the major portion of its opinion to the question of the baby's best interests. The inconsistency is apparent. The surrogacy contract calls for the surrender of the child to the Sterns, permanent and sole custody in the Sterns, and termination of Mrs. Whitehead's parental rights, all without qualification, all regardless of any evaluation of the best interests of the child. As a matter of fact the contract recites (even before the child was conceived) that it is in the best interests of the child to be placed with Mr. Stern. In effect, the trial court awarded custody to Mr. Stern, the natural father, based on the same kind of evidence and analysis as might be expected had no surrogacy contract existed. Its rationalization, however, was that while the surrogacy contract was valid, specific performance would not be granted unless that remedy was in the best interests of the child. The factual issues confronted and decided by the trial court were the same as if Mr. Stern and Mrs. Whitehead had had the child out of wedlock, intended or unintended, and then disagreed about custody. The trial court's awareness of the irrelevance of the contract in the court's determination of custody is suggested by its remark that beyond the question of the child's best interests, "[a]ll other concerns raised by counsel constitute commentary." 217 N.J. Super. at 323.

On the question of best interests — and we agree, but for different reasons, that custody was the critical issue — the court's analysis of the testimony was perceptive, demonstrating both its understanding of the case and its considerable experience in these matters. We agree substantially with both its analysis and conclusions on the matter of custody.

The court's review and analysis of the surrogacy contract, however, is not at all in accord with ours. The trial court concluded that the various statutes governing this matter, including those concerning adoption, termination of parental rights, and payment of money in connection with adoptions, do not apply to surrogacy contracts. Id. at 372-73. It reasoned that because the Legislature did not have surrogacy contracts in mind when it passed those laws, those laws were therefore irrelevant. Ibid. Thus, assuming it was writing on a clean slate, the trial court analyzed the interests involved and the power of the court to accommodate them. It then held that surrogacy contracts are valid and should be enforced, id. at 388, and furthermore that Mr. Stern's rights under the surrogacy contract were constitutionally protected. Id. at 385-88.

Mrs. Whitehead appealed. This Court granted direct certification. 107 N.J. 140 (1987). The briefs of the parties on appeal were joined by numerous briefs filed by amici expressing various interests and views on surrogacy and on this case. We have found many of them helpful in resolving the issues before us.

Mrs. Whitehead contends that the surrogacy contract, for a variety of reasons, is invalid. She contends that it conflicts with public policy since it guarantees that the child will not have the nurturing of both natural parents — presumably New Jersey's goal for families. She further argues that it deprives the mother of her constitutional right to the companionship of her child, and that it conflicts with statutes concerning termination of parental rights and adoption. With the contract thus void, Mrs. Whitehead claims primary custody (with visitation rights in Mr. Stern) both on a best interests basis (stressing the "tender years" doctrine) as well as on the policy basis of discouraging surrogacy contracts. She maintains that even if custody would ordinarily go to Mr. Stern, here it should be awarded to Mrs. Whitehead to deter future surrogacy arrangements.

In a brief filed after oral argument, counsel for Mrs. Whitehead suggests that the standard for determining best interests where the infant resulted from a surrogacy contract is that the child should be placed with the mother absent a showing of unfitness. All parties agree that no expert testified that Mary Beth Whitehead was unfit as a mother; the trial court expressly found that she was not "unfit," that, on the contrary, "she is a good mother for and to her older children," 217 N.J. Super. at 397; and no one now claims anything to the contrary.

One of the repeated themes put forth by Mrs. Whitehead is that the court's initial ex parte order granting custody to the Sterns during the trial was a substantial factor in the ultimate "best interests" determination. That initial order, claimed to be erroneous by Mrs. Whitehead, not only established Melissa as part of the Stern family, but brought enormous pressure on Mrs. Whitehead. The order brought the weight of the state behind the Sterns' attempt, ultimately successful, to gain possession of the child. The resulting pressure, Mrs. Whitehead contends, caused her to act in ways that were atypical of her ordinary behavior when not under stress, and to act in ways that were thought to be inimical to the child's best interests in that they demonstrated a failure of character, maturity, and consistency. She claims that any mother who truly loved her child might so respond and that it is doubly unfair to judge her on the basis of her reaction to an extreme situation rarely faced by any mother, where that situation was itself caused by an erroneous order of the court. Therefore, according to Mrs. Whitehead, the erroneous ex parte order precipitated a series of events that proved instrumental in the final result.^[3]

The Sterns claim that the surrogacy contract is valid and should be enforced, largely for the reasons given by the trial court. They claim a constitutional right of privacy, which includes the right of procreation, and the right of consenting adults to deal with matters of reproduction as they see fit. As for the child's best interests, their position is factual: given all of the circumstances, the child is better off in their custody with no residual parental rights reserved for Mrs. Whitehead.

Of considerable interest in this clash of views is the position of the child's guardian ad litem, wisely appointed by the court at the outset of the litigation. As the child's representative, her role in the litigation, as she viewed it, was solely to protect the child's best interests. She therefore took no position on the validity of the surrogacy contract, and instead devoted her energies to obtaining expert testimony uninfluenced by any interest other than the child's. We agree with the guardian's perception of her role in this litigation. She appropriately refrained from taking any position that might have appeared to compromise her role as the child's advocate. She first took the position, based on her experts' testimony, that the Sterns should have primary custody, and that while Mrs. Whitehead's parental rights should not be terminated, no visitation should be allowed for five years. As a result of subsequent developments, mentioned infra, her view has changed. She now recommends that no visitation be allowed at least until Baby M reaches maturity.

Although some of the experts' opinions touched on visitation, the major issue they addressed was whether custody should be reposed in the Sterns or in the Whiteheads. The trial court, consistent in this respect with its view that the surrogacy contract was valid, did not deal at all with the question of visitation. Having concluded that the best interests of the child called for custody in the Sterns, the trial court enforced the operative provisions of the surrogacy contract, terminated Mrs. Whitehead's parental rights, and granted an adoption to Mrs. Stern. Explicit in the ruling was the conclusion that the best interests determination removed whatever impediment might have existed in enforcing the surrogacy contract. This Court, therefore, is without guidance from the trial court on the visitation issue, an issue of considerable importance in any event, and especially important in view of our determination that the surrogacy contract is invalid.

II.

INVALIDITY AND UNENFORCEABILITY OF SURROGACY CONTRACT

We have concluded that this surrogacy contract is invalid. Our conclusion has two bases: direct conflict with existing statutes and conflict with the public policies of this State, as expressed in its statutory and decisional law.

One of the surrogacy contract's basic purposes, to achieve the adoption of a child through private placement, though permitted in New Jersey "is very much disfavored." Sees v. Baber, 74 N.J. 201, 217 (1977). Its use of money for this purpose — and we have no doubt whatsoever that the money is being paid to obtain an adoption and not, as the Sterns argue, for the personal services of Mary Beth Whitehead — is illegal and perhaps criminal. N.J.S.A. 9:3-54. In addition to the inducement of money, there is the coercion of contract: the natural mother's irrevocable agreement, prior to birth, even prior to conception, to surrender the child to the adoptive couple. Such an agreement is totally unenforceable in private placement adoption. Sees, 74 N.J. at 212-14. Even where the adoption is through an approved agency, the formal agreement to surrender occurs only after birth (as we read N.J.S.A. 9:2-16 and -17, and similar statutes), and then, by regulation, only after the birth mother has been offered counseling. N.J.A.C. 10:121A-5.4(c). Integral to these invalid provisions of the surrogacy contract is the related agreement, equally invalid, on the part of the natural mother to cooperate with, and not to contest, proceedings to terminate her parental rights, as well as her contractual concession, in aid of the adoption, that the child's best interests would be served by awarding custody to the natural father and his wife — all of this before she has even conceived, and, in some cases, before she has the slightest idea of what the natural father and adoptive mother are like.

The foregoing provisions not only directly conflict with New Jersey statutes, but also offend long-established State policies. These critical terms, which are at the heart of the contract, are invalid and unenforceable; the conclusion therefore follows, without more, that the entire contract is unenforceable.

A. Conflict with Statutory Provisions

The surrogacy contract conflicts with: (1) laws prohibiting the use of money in connection with adoptions; (2) laws requiring proof of parental unfitness or abandonment before termination of parental rights is ordered or an adoption is granted; and (3) laws that make surrender of custody and consent to adoption revocable in private placement adoptions.

(1) Our law prohibits paying or accepting money in connection with any placement of a child for adoption. N.J.S.A. 9:3-54a. Violation is a high misdemeanor. N.J.S.A. 9:3-54c. Excepted are fees of an approved agency (which must be a non-profit entity, N.J.S.A. 9:3-38a) and certain expenses in connection with childbirth. N.J.S.A. 9:3-54b.^[4]

Considerable care was taken in this case to structure the surrogacy arrangement so as not to violate this prohibition. The arrangement was structured as follows: the adopting parent, Mrs. Stern, was not a party to the surrogacy contract; the money paid to Mrs. Whitehead was stated to be for her services — not for the adoption; the sole purpose of the contract was stated as being that "of giving a child to William Stern, its natural and biological father"; the money was purported to be [424] "compensation for services and expenses and in no way ... a fee for termination of parental rights or a payment in exchange for consent to surrender a child for adoption"; the fee to the Infertility Center ($7,500) was stated to be for legal representation, advice, administrative work, and other "services." Nevertheless, it seems clear that the money was paid and accepted in connection with an adoption.

The Infertility Center's major role was first as a "finder" of the surrogate mother whose child was to be adopted, and second as the arranger of all proceedings that led to the adoption. Its role as adoption finder is demonstrated by the provision requiring Mr. Stern to pay another $7,500 if he uses Mary Beth Whitehead again as a surrogate, and by ICNY's agreement to "coordinate arrangements for the adoption of the child by the wife." The surrogacy agreement requires Mrs. Whitehead to surrender Baby M for the purposes of adoption. The agreement notes that Mr. and Mrs. Stern wanted to have a child, and provides that the child be "placed" with Mrs. Stern in the event Mr. Stern dies before the child is born. The payment of the $10,000 occurs only on surrender of custody of the child and "completion of the duties and obligations" of Mrs. Whitehead, including termination of her parental rights to facilitate adoption by Mrs. Stern. As for the contention that the Sterns are paying only for services and not for an adoption, we need note only that they would pay nothing in the event the child died before the fourth month of pregnancy, and only $1,000 if the child were stillborn, even though the "services" had been fully rendered. Additionally, one of Mrs. Whitehead's estimated costs, to be assumed by Mr. Stern, was an "Adoption Fee," presumably for Mrs. Whitehead's incidental costs in connection with the adoption.

Mr. Stern knew he was paying for the adoption of a child; Mrs. Whitehead knew she was accepting money so that a child might be adopted; the Infertility Center knew that it was being paid for assisting in the adoption of a child. The actions of all three worked to frustrate the goals of the statute. It strains credulity to claim that these arrangements, touted by those in the surrogacy business as an attractive alternative to the usual route leading to an adoption, really amount to something other than a private placement adoption for money.

The prohibition of our statute is strong. Violation constitutes a high misdemeanor, N.J.S.A. 9:3-54c, a third-degree crime, N.J.S.A. 2C:43-1b, carrying a penalty of three to five years imprisonment. N.J.S.A. 2C:43-6a(3). The evils inherent in baby-bartering are loathsome for a myriad of reasons. The child is sold without regard for whether the purchasers will be suitable parents. N. Baker, Baby Selling: The Scandal of Black Market Adoption 7 (1978). The natural mother does not receive the benefit of counseling and guidance to assist her in making a decision that may affect her for a lifetime. In fact, the monetary incentive to sell her child may, depending on her financial circumstances, make her decision less voluntary. Id. at 44. Furthermore, the adoptive parents^[5] may not be fully informed of the natural parents' medical history.

Baby-selling potentially results in the exploitation of all parties involved. Ibid. Conversely, adoption statutes seek to further humanitarian goals, foremost among them the best interests of the child. H. Witmer, E. Herzog, E. Weinstein, & M. Sullivan, Independent Adoptions: A Follow-Up Study 32 (1967). The negative consequences of baby-buying are potentially present in the surrogacy context, especially the potential for placing and adopting a child without regard to the interest of the child or the natural mother.

(2) The termination of Mrs. Whitehead's parental rights, called for by the surrogacy contract and actually ordered by the court, 217 N.J. Super. at 399-400, fails to comply with the stringent requirements of New Jersey law. Our law, recognizing the finality of any termination of parental rights, provides for such termination only where there has been a voluntary surrender of a child to an approved agency or to the Division of Youth and Family Services ("DYFS"), accompanied by a formal document acknowledging termination of parental rights, N.J.S.A. 9:2-16, -17; N.J.S.A. 9:3-41; N.J.S.A. 30:4C-23, or where there has been a showing of parental abandonment or unfitness. A termination may ordinarily take one of three forms: an action by an approved agency, an action by DYFS, or an action in connection with a private placement adoption. The three are governed by separate statutes, but the standards for termination are substantially the same, except that whereas a written surrender is effective when made to an approved agency or to DYFS, there is no provision for it in the private placement context. See N.J.S.A. 9:2-14; N.J.S.A. 30:4C-23.

N.J.S.A. 9:2-18 to -20 governs an action by an approved agency to terminate parental rights. Such an action, whether or not in conjunction with a pending adoption, may proceed on proof of written surrender, N.J.S.A. 9:2-16, -17, "forsaken parental obligation," or other specific grounds such as death or insanity, N.J.S.A. 9:2-19. Where the parent has not executed a formal consent, termination requires a showing of "forsaken parental obligation," i.e., "willful and continuous neglect or failure to perform the natural and regular obligations of care and support of a child." N.J.S.A. 9:2-13(d). See also N.J.S.A. 9:3-46a, -47c.

Where DYFS is the agency seeking termination, the requirements are similarly stringent, although at first glance they do not appear to be so. DYFS can, as can any approved agency, accept a formal voluntary surrender or writing having the effect of termination and giving DYFS the right to place the child for adoption. N.J.S.A. 30:4C-23. Absent such formal written surrender and consent, similar to that given to approved agencies, DYFS can terminate parental rights in an action for guardianship by proving that "the best interests of such child require that he be placed under proper guardianship." N.J.S.A. 30:4C-20. Despite this "best interests" language, however, this Court has recently held in New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), that in order for DYFS to terminate parental rights it must prove, by clear and convincing evidence, that "[t]he child's health and development have been or will be seriously impaired by the parental relationship," id. at 604, that "[t]he parents are unable or unwilling to eliminate the harm and delaying permanent placement will add to the harm," id. at 605, that "[t]he court has considered alternatives to termination," id. at 608, and that "[t]he termination of parental rights will not do more harm than good," id. at 610. This interpretation of the statutory language requires a most substantial showing of harm to the child if the parental relationship were to continue, far exceeding anything that a "best interests" test connotes.

In order to terminate parental rights under the private placement adoption statute, there must be a finding of "intentional abandonment or a very substantial neglect of parental duties without a reasonable expectation of a reversal of that conduct in the future." N.J.S.A. 9:3-48c(1). This requirement is similar to that of the prior law (i.e., "forsaken parental obligations," L. 1953, c. 264, § 2(d) (codified at N.J.S.A. 9:3-18(d) (repealed))), and to that of the law providing for termination through actions by approved agencies, N.J.S.A. 9:2-13(d). See also In re Adoption by J.J.P., 175 N.J. Super. 420, 427 (App. Div. 1980) (noting that the language of the termination provision in the present statute, N.J.S.A. 9:3-48c(1), derives from this Court's construction of the prior statute in In re Adoption of Children by D., 61 N.J. 89, 94-95 (1972)).

In Sees v. Baber, 74 N.J. 201 (1977) we distinguished the requirements for terminating parental rights in a private placement adoption from those required in an approved agency adoption. We stated that in an unregulated private placement, "neither consent nor voluntary surrender is singled out as a statutory factor in terminating parental rights." Id. at 213. Sees established that without proof that parental obligations had been forsaken, there would be no termination in a private placement setting.

As the trial court recognized, without a valid termination there can be no adoption. In re Adoption of Children by D., supra, 61 N.J. at 95. This requirement applies to all adoptions, whether they be private placements, ibid., or agency adoptions, N.J.S.A. 9:3-46a, -47c.

Our statutes, and the cases interpreting them, leave no doubt that where there has been no written surrender to an approved agency or to DYFS, termination of parental rights will not be granted in this state absent a very strong showing of abandonment or neglect. See, e.g., Sorentino v. Family & Children's Soc'y of Elizabeth, 74 N.J. 313 (1977) (Sorentino II); Sees v. Baber, 74 N.J. 201 (1977); Sorentino v. Family & Children's Soc'y of Elizabeth, 72 N.J. 127 (1976) (Sorentino I); In re Adoption of Children by D., supra, 61 N.J. 89. That showing is required in every context in which termination of parental rights is sought, be it an action by an approved agency, an action by DYFS, or a private placement adoption proceeding, even where the petitioning adoptive parent is, as here, a stepparent. While the statutes make certain procedural allowances when stepparents are involved, N.J.S.A. 9:3-48a(2), -48a(4), -48c(4), the substantive requirement for terminating the natural parents' rights is not relaxed one iota. N.J.S.A. 9:3-48c(1); In re Adoption of Children by D., supra, 61 N.J. at 94-95; In re Adoption by J.J.P., supra, 175 N.J. Super. at 426-28; In re N., 96 N.J. Super. 415, 423-27 (App.Div. 1967). It is clear that a "best interests" determination is never sufficient to terminate parental rights; the statutory criteria must be proved.^[6]

In this case a termination of parental rights was obtained not by proving the statutory prerequisites but by claiming the benefit of contractual provisions. From all that has been stated above, it is clear that a contractual agreement to abandon one's parental rights, or not to contest a termination action, will not be enforced in our courts. The Legislature would not have so carefully, so consistently, and so substantially restricted termination of parental rights if it had intended to allow termination to be achieved by one short sentence in a contract.

Since the termination was invalid,^[7] it follows, as noted above, that adoption of Melissa by Mrs. Stern could not properly be granted.

(3) The provision in the surrogacy contract stating that Mary Beth Whitehead agrees to "surrender custody ... and terminate all parental rights" contains no clause giving her a right to rescind. It is intended to be an irrevocable consent to surrender the child for adoption — in other words, an irrevocable commitment by Mrs. Whitehead to turn Baby M over to the Sterns and thereafter to allow termination of her parental rights. The trial court required a "best interests" showing as a condition to granting specific performance of the surrogacy contract. 217 N.J. Super. at 399-400. Having decided the "best interests" issue in favor of the Sterns, that court's order included, among other things, specific performance of this agreement to surrender custody and terminate all parental rights.

Mrs. Whitehead, shortly after the child's birth, had attempted to revoke her consent and surrender by refusing, after the Sterns had allowed her to have the child "just for one week," to return Baby M to them. The trial court's award of specific performance therefore reflects its view that the consent to surrender the child was irrevocable. We accept the trial court's construction of the contract; indeed it appears quite clear that this was the parties' intent. Such a provision, however, making irrevocable the natural mother's consent to surrender custody of her child in a private placement adoption, clearly conflicts with New Jersey law.

Our analysis commences with the statute providing for surrender of custody to an approved agency and termination of parental rights on the suit of that agency. The two basic provisions of the statute are N.J.S.A. 9:2-14 and 9:2-16. The former provides explicitly that

[e]xcept as otherwise provided by law or by order or judgment of a court of competent jurisdiction or by testamentary disposition, 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....

There is no exception "provided by law," and it is not clear that there could be any "order or judgment of a court of competent jurisdiction" validating a surrender of custody as a basis for adoption when that surrender was not in conformance with the statute. Requirements for a voluntary surrender to an approved agency are set forth in N.J.S.A. 9:2-16. This section allows an approved agency to take a voluntary surrender of custody from the parent of a child but provides stringent requirements as a condition to its validity. The surrender must be in writing, must be in such form as is required for the recording of a deed, and, pursuant to N.J.S.A. 9:2-17, must be such as to declare that the person executing the same desires to relinquish the custody of the child, acknowledge the termination of parental rights as to such custody in favor of the approved agency, and acknowledge full understanding of the effect of such surrender as provided by this act.

If the foregoing requirements are met, the consent, the voluntary surrender of custody

shall be valid whether or not the person giving same is a minor and shall be irrevocable except at the discretion of the approved agency taking such surrender or upon order or judgment of a court of competent jurisdiction, setting aside such surrender upon proof of fraud, duress, or misrepresentation. [N.J.S.A. 9:2-16.]

The importance of that irrevocability is that the surrender itself gives the agency the power to obtain termination of parental rights — in other words, permanent separation of the parent from the child, leading in the ordinary case to an adoption. N.J.S.A. 9:2-18 to -20.

This statutory pattern, providing for a surrender in writing and for termination of parental rights by an approved agency, is generally followed in connection with adoption proceedings and proceedings by DYFS to obtain permanent custody of a child. Our adoption statute repeats the requirements necessary to accomplish an irrevocable surrender to an approved agency in both form and substance. N.J.S.A. 9:3-41a. It provides that the surrender "shall be valid and binding without regard to the age of the person executing the surrender," ibid.; and although the word "irrevocable" is not used, that seems clearly to be the intent of the provision. The statute speaks of such surrender as constituting "relinquishment of such person's parental rights in or guardianship or custody of the child named therein and consent by such person to adoption of the child." Ibid. (emphasis supplied). We emphasize "named therein," for we construe the statute to allow a surrender only after the birth of the child. The formal consent to surrender enables the approved agency to terminate parental rights.

Similarly, DYFS is empowered to "take voluntary surrenders and releases of custody and consents to adoption[s]" from parents, which surrenders, releases, or consents "when properly acknowledged ... shall be valid and binding irrespective of the age of the person giving the same, and shall be irrevocable except at the discretion of the Bureau of Childrens Services [currently DYFS] or upon order of a court of competent jurisdiction." N.J.S.A. 30:4C-23. Such consent to surrender of the custody of the child would presumably lead to an adoption placement by DYFS. See N.J.S.A. 30:4C-20.

It is clear that the Legislature so carefully circumscribed all aspects of a consent to surrender custody — its form and substance, its manner of execution, and the agency or agencies to which it may be made — in order to provide the basis for irrevocability. It seems most unlikely that the Legislature intended that a consent not complying with these requirements would also be irrevocable, especially where, as here, that consent falls radically short of compliance. Not only do the form and substance of the consent in the surrogacy contract fail to meet statutory requirements, but the surrender of custody is made to a private party. It is not made, as the statute requires, either to an approved agency or to DYFS.

These strict prerequisites to irrevocability constitute a recognition of the most serious consequences that flow from such consents: termination of parental rights, the permanent separation of parent from child, and the ultimate adoption of the child. See Sees v. Baber, supra, 74 N.J. at 217. Because of those consequences, the Legislature severely limited the circumstances under which such consent would be irrevocable. The legislative goal is furthered by regulations requiring approved agencies, prior to accepting irrevocable consents, to provide advice and counseling to women, making it more likely that they fully understand and appreciate the consequences of their acts. N.J.A.C. 10:121A-5.4(c).

Contractual surrender of parental rights is not provided for in our statutes as now written. Indeed, in the Parentage Act, N.J.S.A. 9:17-38 to -59, there is a specific provision invalidating any agreement "between an alleged or presumed father and the mother of the child" to bar an action brought for the purpose of determining paternity "[r]egardless of [the contract's] terms." N.J.S.A. 9:17-45. Even a settlement agreement concerning parentage reached in a judicially-mandated consent conference is not valid unless the proposed settlement is approved beforehand by the court. N.J.S.A. 9:17-48c and d. There is no doubt that a contractual provision purporting to constitute an irrevocable agreement to surrender custody of a child for adoption is invalid.

In Sees v. Baber, supra, 74 N.J. 201, we noted that a natural mother's consent to surrender her child and to its subsequent adoption was no longer required by the statute in private placement adoptions. After tracing the statutory history from the time when such a consent had been an essential prerequisite to adoption, we concluded that such a consent was now neither necessary nor sufficient for the purpose of terminating parental rights. Id. at 213. The consent to surrender custody in that case was in writing, had been executed prior to physical surrender of the infant, and had been explained to the mother by an attorney. The trial court found that the consent to surrender of custody in that private placement adoption was knowing, voluntary, and deliberate. Id. at 216. The physical surrender of the child took place four days after its birth. Two days thereafter the natural mother changed her mind, and asked that the adoptive couple give her baby back to her. We held that she was entitled to the baby's return. The effect of our holding in that case necessarily encompassed our conclusion that "in an unsupervised private placement, since there is no statutory obligation to consent, there can be no legal barrier to its retraction." Id. at 215. The only possible relevance of consent in these matters, we noted, was that it might bear on whether there had been an abandonment of the child, or a forsaking of parental obligations. Id. at 216. Otherwise, consent in a private placement adoption is not only revocable but, when revoked early enough, irrelevant. Id. at 213-15.

The provision in the surrogacy contract whereby the mother irrevocably agrees to surrender custody of her child and to terminate her parental rights conflicts with the settled interpretation of New Jersey statutory law.^[8] There is only one irrevocable consent, and that is the one explicitly provided for by statute: a consent to surrender of custody and a placement with an approved agency or with DYFS. The provision in the surrogacy contract, agreed to before conception, requiring the natural mother to surrender custody of the child without any right of revocation is one more indication of the essential nature of this transaction: the creation of a contractual system of termination and adoption designed to circumvent our statutes.

B. Public Policy Considerations

The surrogacy contract's invalidity, resulting from its direct conflict with the above statutory provisions, is further underlined when its goals and means are measured against New Jersey's public policy. The contract's basic premise, that the natural parents can decide in advance of birth which one is to have custody of the child, bears no relationship to the settled law that the child's best interests shall determine custody. See Fantony v. Fantony, 21 N.J. 525, 536-37 (1956); see also Sheehan v. Sheehan, 38 N.J. Super. 120, 125 (App.Div. 1955) [435] ("Whatever the agreement of the parents, the ultimate determination of custody lies with the court in the exercise of its supervisory jurisdiction as parens patriae."). The fact that the trial court remedied that aspect of the contract through the "best interests" phase does not make the contractual provision any less offensive to the public policy of this State.

The surrogacy contract guarantees permanent separation of the child from one of its natural parents. Our policy, however, has long been that to the extent possible, children should remain with and be brought up by both of their natural parents. That was the first stated purpose of the previous adoption act, L. 1953, c. 264, § 1, codified at N.J.S.A. 9:3-17 (repealed): "it is necessary and desirable (a) to protect the child from unnecessary separation from his natural parents...." While not so stated in the present adoption law, this purpose remains part of the public policy of this State. See, e.g., Wilke v. Culp, 196 N.J. Super. 487, 496 (App.Div. 1984), certif. den., 99 N.J. 243 (1985); In re Adoption by J.J.P., supra, 175 N.J. Super. at 426. This is not simply some theoretical ideal that in practice has no meaning. The impact of failure to follow that policy is nowhere better shown than in the results of this surrogacy contract. A child, instead of starting off its life with as much peace and security as possible, finds itself immediately in a tug-of-war between contending mother and father.^[9]

The surrogacy contract violates the policy of this State that the rights of natural parents are equal concerning their child, the father's right no greater than the mother's. "The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents." N.J.S.A. 9:17-40. As the Assembly Judiciary Committee noted in its statement to the bill, this section establishes "the principle that regardless of the marital status of the parents, all children and all parents have equal rights with respect to each other." Statement to Senate No. 888, Assembly Judiciary, Law, Public Safety and Defense Committee (1983) (emphasis supplied). The whole purpose and effect of the surrogacy contract was to give the father the exclusive right to the child by destroying the rights of the mother.

The policies expressed in our comprehensive laws governing consent to the surrender of a child, discussed supra at 429-434, stand in stark contrast to the surrogacy contract and what it implies. Here there is no counseling, independent or otherwise, of the natural mother, no evaluation, no warning.

The only legal advice Mary Beth Whitehead received regarding the surrogacy contract was provided in connection with the contract that she previously entered into with another couple. Mrs. Whitehead's lawyer was referred to her by the Infertility Center, with which he had an agreement to act as counsel for surrogate candidates. His services consisted of spending one hour going through the contract with the Whiteheads, section by section, and answering their questions. Mrs. Whitehead received no further legal advice prior to signing the contract with the Sterns.

Mrs. Whitehead was examined and psychologically evaluated, but if it was for her benefit, the record does not disclose that fact. The Sterns regarded the evaluation as important, particularly in connection with the question of whether she would change her mind. Yet they never asked to see it, and were content with the assumption that the Infertility Center had made an evaluation and had concluded that there was no danger that the surrogate mother would change her mind. From Mrs. Whitehead's point of view, all that she learned from the evaluation was that "she had passed." It is apparent that the profit motive got the better of the Infertility Center. Although the evaluation was made, it was not put to any use, and understandably so, for the psychologist warned that Mrs. Whitehead demonstrated certain traits that might make surrender of the child difficult and that there should be further inquiry into this issue in connection with her surrogacy. To inquire further, however, might have jeopardized the Infertility Center's fee. The record indicates that neither Mrs. Whitehead nor the Sterns were ever told of this fact, a fact that might have ended their surrogacy arrangement.

Under the contract, the natural mother is irrevocably committed before she knows the strength of her bond with her child. She never makes a totally voluntary, informed decision, for quite clearly any decision prior to the baby's birth is, in the most important sense, uninformed, and any decision after that, compelled by a pre-existing contractual commitment, the threat of a lawsuit, and the inducement of a $10,000 payment, is less than totally voluntary. Her interests are of little concern to those who controlled this transaction.

Although the interest of the natural father and adoptive mother is certainly the predominant interest, realistically the only interest served, even they are left with less than what public policy requires. They know little about the natural mother, her genetic makeup, and her psychological and medical history. Moreover, not even a superficial attempt is made to determine their awareness of their responsibilities as parents.

Worst of all, however, is the contract's total disregard of the best interests of the child. There is not the slightest suggestion that any inquiry will be made at any time to determine the fitness of the Sterns as custodial parents, of Mrs. Stern as an adoptive parent, their superiority to Mrs. Whitehead, or the effect on the child of not living with her natural mother.

This is the sale of a child, or, at the very least, the sale of a mother's right to her child, the only mitigating factor being that one of the purchasers is the father. Almost every evil that prompted the prohibition on the payment of money in connection with adoptions exists here.

The differences between an adoption and a surrogacy contract should be noted, since it is asserted that the use of money in connection with surrogacy does not pose the risks found where money buys an adoption. Katz, "Surrogate Motherhood and the Baby-Selling Laws," 20 Colum.J.L. & Soc.Probs. 1 (1986).

First, and perhaps most important, all parties concede that it is unlikely that surrogacy will survive without money. Despite the alleged selfless motivation of surrogate mothers, if there is no payment, there will be no surrogates, or very few. That conclusion contrasts with adoption; for obvious reasons, there remains a steady supply, albeit insufficient, despite the prohibitions against payment. The adoption itself, relieving the natural mother of the financial burden of supporting an infant, is in some sense the equivalent of payment.

Second, the use of money in adoptions does not produce the problem — conception occurs, and usually the birth itself, before illicit funds are offered. With surrogacy, the "problem," if one views it as such, consisting of the purchase of a woman's procreative capacity, at the risk of her life, is caused by and originates with the offer of money.

Third, with the law prohibiting the use of money in connection with adoptions, the built-in financial pressure of the unwanted pregnancy and the consequent support obligation do not lead the mother to the highest paying, ill-suited, adoptive parents. She is just as well-off surrendering the child to an approved agency. In surrogacy, the highest bidders will presumably become the adoptive parents regardless of suitability, so long as payment of money is permitted.

Fourth, the mother's consent to surrender her child in adoptions is revocable, even after surrender of the child, unless it be to an approved agency, where by regulation there are protections against an ill-advised surrender. In surrogacy, consent occurs so early that no amount of advice would satisfy the potential mother's need, yet the consent is irrevocable.

The main difference, that the unwanted pregnancy is unintended while the situation of the surrogate mother is voluntary and intended, is really not significant. Initially, it produces stronger reactions of sympathy for the mother whose pregnancy was unwanted than for the surrogate mother, who "went into this with her eyes wide open." On reflection, however, it appears that the essential evil is the same, taking advantage of a woman's circumstances (the unwanted pregnancy or the need for money) in order to take away her child, the difference being one of degree.

In the scheme contemplated by the surrogacy contract in this case, a middle man, propelled by profit, promotes the sale. Whatever idealism may have motivated any of the participants, the profit motive predominates, permeates, and ultimately governs the transaction. The demand for children is great and the supply small. The availability of contraception, abortion, and the greater willingness of single mothers to bring up their children has led to a shortage of babies offered for adoption. See N. Baker, Baby Selling: The Scandal of Black Market Adoption, supra; Adoption and Foster Care, 1975: Hearings on Baby Selling Before the Subcomm. On Children and Youth of the Senate Comm. on Labor and Public Welfare, 94th Cong.1st Sess. 6 (1975) (Statement of Joseph H. Reid, Executive Director, Child Welfare League of America, Inc.). The situation is ripe for the entry of the middleman who will bring some equilibrium into the market by increasing the supply through the use of money.

Intimated, but disputed, is the assertion that surrogacy will be used for the benefit of the rich at the expense of the poor. See, e.g., Radin, "Market Inalienability," 100 Harv.L.Rev. 1849, 1930 (1987). In response it is noted that the Sterns are not rich and the Whiteheads not poor. Nevertheless, it is clear to us that it is unlikely that surrogate mothers will be as proportionately numerous among those women in the top twenty percent income bracket as among those in the bottom twenty percent. Ibid. Put differently, we doubt that infertile couples in the low-income bracket will find upper income surrogates.

In any event, even in this case one should not pretend that disparate wealth does not play a part simply because the contrast is not the dramatic "rich versus poor." At the time of trial, the Whiteheads' net assets were probably negative — Mrs. Whitehead's own sister was foreclosing on a second mortgage. Their income derived from Mr. Whitehead's labors. Mrs. Whitehead is a homemaker, having previously held part-time jobs. The Sterns are both professionals, she a medical doctor, he a biochemist. Their combined income when both were working was about $89,500 a year and their assets sufficient to pay for the surrogacy contract arrangements.

The point is made that Mrs. Whitehead agreed to the surrogacy arrangement, supposedly fully understanding the consequences. Putting aside the issue of how compelling her need for money may have been, and how significant her understanding of the consequences, we suggest that her consent is irrelevant. There are, in a civilized society, some things that money cannot buy. In America, we decided long ago that merely because conduct purchased by money was "voluntary" did not mean that it was good or beyond regulation and prohibition. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937). Employers can no longer buy labor at the lowest price they can bargain for, even though that labor is "voluntary," 29 U.S.C. § 206 (1982), or buy women's labor for less money than paid to men for the same job, 29 U.S.C. § 206(d), or purchase the agreement of children to perform oppressive labor, 29 U.S.C. § 212, or purchase the agreement of workers to subject themselves to unsafe or unhealthful working conditions, 29 U.S.C. §§ 651 to 678. (Occupational Safety and Health Act of 1970). There are, in short, values that society deems more important than granting to wealth whatever it can buy, be it labor, love, or life. Whether this principle recommends prohibition of surrogacy, which presumably sometimes results in great satisfaction to all of the parties, is not for us to say. We note here only that, under existing law, the fact that Mrs. Whitehead "agreed" to the arrangement is not dispositive.

The long-term effects of surrogacy contracts are not known, but feared — the impact on the child who learns her life was bought, that she is the offspring of someone who gave birth to her only to obtain money; the impact on the natural mother as the full weight of her isolation is felt along with the full reality of the sale of her body and her child; the impact on the natural father and adoptive mother once they realize the consequences of their conduct. Literature in related areas suggests these are substantial considerations, although, given the newness of surrogacy, there is little information. See N. Baker, Baby Selling: The Scandal of Black Market Adoption, supra; Adoption and Foster Care, 1975: Hearings on Baby Selling Before the Subcomm. on Children and Youth of the Senate Comm. on Labor and Public Welfare, 94th Cong. 1st Sess. (1975).

The surrogacy contract is based on, principles that are directly contrary to the objectives of our laws.^[10] It guarantees the separation of a child from its mother; it looks to adoption regardless of suitability; it totally ignores the child; it takes the child from the mother regardless of her wishes and her maternal fitness; and it does all of this, it accomplishes all of its goals, through the use of money.

Beyond that is the potential degradation of some women that may result from this arrangement. In many cases, of course, surrogacy may bring satisfaction, not only to the infertile couple, but to the surrogate mother herself. The fact, however, that many women may not perceive surrogacy negatively but rather see it as an opportunity does not diminish its potential for devastation to other women.

In sum, the harmful consequences of this surrogacy arrangement appear to us all too palpable. In New Jersey the surrogate mother's agreement to sell her child is void.^[11] Its irrevocability infects the entire contract, as does the money that purports to buy it.

III.

TERMINATION

We have already noted that under our laws termination of parental rights cannot be based on contract, but may be granted only on proof of the statutory requirements. That conclusion was one of the bases for invalidating the surrogacy contract. Although excluding the contract as a basis for parental termination, we did not explicitly deal with the question of whether the statutory bases for termination existed. We do so here.

As noted before, if termination of Mrs. Whitehead's parental rights is justified, Mrs. Whitehead will have no further claim either to custody or to visitation, and adoption by Mrs. Stern may proceed pursuant to the private placement adoption statute, N.J.S.A. 9:3-48. If termination is not justified, Mrs. Whitehead remains the legal mother, and even if not entitled to custody, she would ordinarily be expected to have some rights of visitation. Wilke v. Culp, supra, 196 N.J. Super. at 496.

As was discussed, supra at 425-429, the proper bases for termination are found in the statute relating to proceedings by approved agencies for a termination of parental rights, N.J.S.A. 9:2-18, the statute allowing for termination leading to a private placement adoption, N.J.S.A. 9:3-48c(1), and the statute authorizing a termination pursuant to an action by DYFS, N.J.S.A. 30:4C-20. The statutory descriptions of the conditions required to terminate parental rights differ; their interpretation in case law, however, tends to equate them. Compare New Jersey Div. of Youth and Family Servs. v. A.W., supra, 103 N.J. at 601-11 (attempted termination by DYFS) with In re Adoption by J.J.P., supra, 175 N.J. Super. at 426-28 (attempted termination in connection with private placement adoption).

Nothing in this record justifies a finding that would allow a court to terminate Mary Beth Whitehead's parental rights under the statutory standard. It is not simply that obviously there was no "intentional abandonment or very substantial neglect of parental duties without a reasonable expectation of reversal of that conduct in the future," N.J.S.A. 9:3-48c(1), quite the contrary, but furthermore that the trial court never found Mrs. Whitehead an unfit mother and indeed affirmatively stated that Mary Beth Whitehead had been a good mother to her other children. 217 N.J. Super. at 397.

Although the question of best interests of the child is dispositive of the custody issue in a dispute between natural parents, it does not govern the question of termination. It has long been decided that the mere fact that a child would be better off with one set of parents than with another is an insufficient basis for terminating the natural parent's rights. See New Jersey Div. of Youth and Family Servs. v. A.W., supra, 103 N.J. at 603; In re Adoption of Children by D., supra, 61 N.J. at 97-98; In re Adoption by J.J.P., supra, 175 N.J. Super. at 428. Furthermore, it is equally well settled that surrender of a child and a consent to adoption through private placement do not alone warrant termination. See Sees v. Baber, supra, 74 N.J. 201. It must be noted, despite some language to the contrary, that the interests of the child are not the only interests involved when termination issues are raised. The parent's rights, both constitutional and statutory, have their own independent vitality. See New Jersey Div. of Youth and Family Servs. v. A.W., supra, 103 N.J. at 601.

Although the statutes are clear, they are not applied rigidly on all occasions. The statutory standard, strictly construed, appears harsh where the natural parents, having surrendered [446] their child for adoption through private placement, change their minds and seek the return of their child and where the issue comes before the court with the adoptive parents having had custody for years, and having assumed it quite innocently.

These added dimensions in Sees v. Baber, supra, 74 N.J. 201, failed to persuade this Court to vary the termination requirements. The natural parent in that case changed her mind two days after surrendering the child, sought his return unequivocally, and so advised the adoptive parents. Since she was clearly fit, and clearly had not abandoned the child in the statutory sense, termination was denied, despite the fact that the adoptive parents had had custody of the child for about a year, and the mother had never had custody at all.

A significant variation on these facts, however, occurred in Sorentino II, supra, 74 N.J. 313. The surrender there was not through private placement but through an approved agency. Although the consent to surrender was held invalid due to coercion by the agency, the natural parents failed to initiate the lawsuit to reclaim the child for over a year after relinquishment. By the time this Court reached the issue of whether the natural parents' rights could be terminated, the adoptive parents had had custody for three years. These circumstances ultimately persuaded this Court to permit termination of the natural parents' rights and to allow a subsequent adoption. The unique facts of Sorentino II were found to amount to a forsaking of parental obligations. Id. at 322.

The present case is distinguishable from Sorentino II. Mary Beth Whitehead had custody of Baby M for four months before the child was taken away. Her initial surrender of Baby M was pursuant to a contract that we have declared illegal and unenforceable. The Sterns knew almost from the very day that they took Baby M that their rights were being challenged by the natural mother. In short, the factors that persuaded this Court to terminate the parental rights in Sorentino II are not found here.

There is simply no basis, either in the statute or in the peculiar facts of that limited class of case typified by Sorentino II, to warrant termination of Mrs. Whitehead's parental rights. We therefore conclude that the natural mother is entitled to retain her rights as a mother.

IV.

CONSTITUTIONAL ISSUES

Both parties argue that the Constitutions — state and federal — mandate approval of their basic claims. The source of their constitutional arguments is essentially the same: the right of privacy, the right to procreate, the right to the companionship of one's child, those rights flowing either directly from the fourteenth amendment or by its incorporation of the Bill of Rights, or from the ninth amendment, or through the penumbra surrounding all of the Bill of Rights. They are the rights of personal intimacy, of marriage, of sex, of family, of procreation. Whatever their source, it is clear that they are fundamental rights protected by both the federal and state Constitutions. Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Carey v. Population Servs. Int'l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The right asserted by the Sterns is the right of procreation; that asserted by Mary Beth Whitehead is the right to the companionship of her child. We find that the right of procreation does not extend as far as claimed by the Sterns. As for the right asserted by Mrs. Whitehead,^[12] since we uphold it on other grounds (i.e., we have restored her as mother and recognized her right, limited by the child's best interests, to her companionship), we need not decide that constitutional issue, and for reasons set forth below, we should not.

The right to procreate, as protected by the Constitution, has been ruled on directly only once by the United States Supreme Court. See Skinner v. Oklahoma, supra, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (forced sterilization of habitual criminals violates equal protection clause of fourteenth amendment). Although Griswold v. Connecticut, supra, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, is obviously of a similar class, strictly speaking it involves the right not to procreate. The right to procreate very simply is the right to have natural children, whether through sexual intercourse or artificial insemination. It is no more than that. Mr. Stern has not been deprived of that right. Through artificial insemination of Mrs. Whitehead, Baby M is his child. The custody, care, companionship, and nurturing that follow birth are not parts of the right to procreation; they are rights that may also be constitutionally protected, but that involve many considerations other than the right of procreation. To assert that Mr. Stern's right of procreation gives him the right to the custody of Baby M would be to assert that Mrs. Whitehead's right of procreation does not give her the right to the custody of Baby M; it would be to assert that the constitutional right of procreation includes within it a constitutionally protected contractual right to destroy someone else's right of procreation.

We conclude that the right of procreation is best understood and protected if confined to its essentials, and that when dealing with rights concerning the resulting child, different interests come into play. There is nothing in our culture or society that even begins to suggest a fundamental right on the part of the father to the custody of the child as part of his right to procreate when opposed by the claim of the mother to the same child. We therefore disagree with the trial court: there is no constitutional basis whatsoever requiring that Mr. Stern's claim to the custody of Baby M be sustained. Our conclusion may thus be understood as illustrating that a person's rights of privacy and self-determination are qualified by the effect on innocent third persons of the exercise of those rights.^[13]

Mr. Stern also contends that he has been denied equal protection of the laws by the State's statute granting full parental rights to a husband in relation to the child produced, with his consent, by the union of his wife with a sperm donor. N.J.S.A. 9:17-44. The claim really is that of Mrs. Stern. It is that she is in precisely the same position as the husband in the statute: she is presumably infertile, as is the husband in the statute; her spouse by agreement with a third party procreates with the understanding that the child will be the couple's child. The alleged unequal protection is that the understanding is honored in the statute when the husband is the infertile party, but no similar understanding is honored when it is the wife who is infertile.

It is quite obvious that the situations are not parallel. A sperm donor simply cannot be equated with a surrogate mother. The State has more than a sufficient basis to distinguish the two situations — even if the only difference is between the time it takes to provide sperm for artificial insemination and the time invested in a nine-month pregnancy — so as to justify automatically divesting the sperm donor of his parental rights without automatically divesting a surrogate mother. Some basis for an equal protection argument might exist if Mary Beth Whitehead had contributed her egg to be implanted, fertilized or otherwise, in Mrs. Stern, resulting in the latter's pregnancy. That is not the case here, however.

Mrs. Whitehead, on the other hand, asserts a claim that falls within the scope of a recognized fundamental interest protected by the Constitution. As a mother, she claims the right to the companionship of her child. This is a fundamental interest, constitutionally protected. Furthermore, it was taken away from her by the action of the court below. Whether that action under these circumstances would constitute a constitutional deprivation, however, we need not and do not decide. By virtue of our decision Mrs. Whitehead's constitutional complaint — that her parental rights have been unconstitutionally terminated — is moot. We have decided that both the statutes and public policy of this state require that that termination be voided and that her parental rights be restored. It therefore becomes unnecessary to decide whether that same result would be required by virtue of the federal or state Constitutions. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 341, 346-48, 56 S.Ct. 466, 482-83, 80 L.Ed. 688, 707, 710-12 (1936) (Brandeis, J., concurring). Refraining from deciding such constitutional issues avoids further complexities involving the full extent of a parent's right of companionship,^[14] or questions involving the fourteenth amendment.^[15]

Having held the contract invalid and having found no other grounds for the termination of Mrs. Whitehead's parental rights, we find that nothing remains of her constitutional claim. It seems obvious to us that since custody and visitation encompass practically all of what we call "parental rights," a total denial of both would be the equivalent of termination of parental rights. Franz v. United States, 707 F.2d 582, 602 (D.C. Cir.1983). That, however, as will be seen below, has not occurred here. We express no opinion on whether a prolonged suspension of visitation would constitute a termination of parental rights, or whether, assuming it would, a showing of unfitness would be required.^[16]

V.

CUSTODY

Having decided that the surrogacy contract is illegal and unenforceable, we now must decide the custody question without regard to the provisions of the surrogacy contract that would give Mr. Stern sole and permanent custody. (That does not mean that the existence of the contract and the circumstances under which it was entered may not be considered to the extent deemed relevant to the child's best interests.) With the surrogacy contract disposed of, the legal framework becomes a dispute between two couples over the custody of a child produced by the artificial insemination of one couple's wife by the other's husband. Under the Parentage Act the claims of the natural father and the natural mother are entitled to equal weight, i.e., one is not preferred over the other solely because he or she is the father or the mother. N.J.S.A. 9:17-40.^[17] The applicable rule given these circumstances is clear: the child's best interests determine custody.

We note again that the trial court's reasons for determining what were the child's best interests were somewhat different from ours. It concluded that the surrogacy contract was valid, but that it could not grant specific performance unless to do so was in the child's best interests. The approach was that of a Chancery judge, unwilling to give extraordinary remedies unless they well served the most important interests, in this case, the interests of the child. While substantively indistinguishable from our approach to the question of best interests, the purpose of the inquiry was not the usual purpose of determining custody, but of determining a contractual remedy.

We are not concerned at this point with the question of termination of parental rights, either those of Mrs. Whitehead or of Mr. Stern. As noted in various places in this opinion, such termination, in the absence of abandonment or a valid surrender, generally depends on a showing that the particular parent is unfit. The question of custody in this case, as in practically all cases, assumes the fitness of both parents, and no serious contention is made in this case that either is unfit. The issue here is which life would be better for Baby M, one with primary custody in the Whiteheads or one with primary custody in the Sterns.

The circumstances of this custody dispute are unusual and they have provoked some unusual contentions. The Whiteheads claim that even if the child's best interests would be served by our awarding custody to the Sterns, we should not do so, since that will encourage surrogacy contracts — contracts claimed by the Whiteheads, and we agree, to be violative of important legislatively-stated public policies. Their position is that in order that surrogacy contracts be deterred, custody should remain in the surrogate mother unless she is unfit, regardless of the best interests of the child. We disagree. Our declaration that this surrogacy contract is unenforceable and illegal is sufficient to deter similar agreements. We need not sacrifice the child's interests in order to make that point sharper. Cf. In re Adoption of Child by I.T. and K.T., 164 N.J. Super. 476, 484-86 (App.Div. 1978) (adoptive parents' participation in illegal placement does not mandate denial of adoption); In the Matter of the Adoption of Child by N.P. and F.P., 165 N.J. Super. 591 (Law Div. 1979) (use of unapproved intermediaries and the payment of money in connection with adoption is insufficient to establish that the would-be adoptive parents are unfit or that adoption would not be in child's best interests).

The Whiteheads also contend that the award of custody to the Sterns pendente lite was erroneous and that the error should not be allowed to affect the final custody decision. As noted above, at the very commencement of this action the court issued an ex parte order requiring Mrs. Whitehead to turn over the baby to the Sterns; Mrs. Whitehead did not comply but rather took the child to Florida. Thereafter, a similar order was enforced by the Florida authorities resulting in the transfer of possession of Baby M to the Sterns. The Sterns retained custody of the child throughout the litigation. The Whiteheads' point, assuming the pendente award of custody was erroneous, is that most of the factors arguing for awarding permanent custody to the Sterns resulted from that initial pendente lite order. Some of Mrs. Whitehead's alleged character failings, as testified to by experts and concurred in by the trial court, were demonstrated by her actions brought on by the custody crisis. For instance, in order to demonstrate her impulsiveness, those experts stressed the Whiteheads' flight to Florida with Baby M; to show her willingness to use her children for her own aims, they noted the telephone threats to kill Baby M and to accuse Mr. Stern of sexual abuse of her daughter; in order to show Mrs. Whitehead's manipulativeness, they pointed to her threat to kill herself; and in order to show her unsettled family life, they noted the innumerable moves from one hotel or motel to another in Florida. Furthermore, the argument continues, one of the most important factors, whether mentioned or not, in favor of custody in the Sterns is their continuing custody during the litigation, now having lasted for one-and-a-half [456] years. The Whiteheads' conclusion is that had the trial court not given initial custody to the Sterns during the litigation, Mrs. Whitehead not only would have demonstrated her perfectly acceptable personality — the general tenor of the opinion of experts was that her personality problems surfaced primarily in crises — but would also have been able to prove better her parental skills along with an even stronger bond than may now exist between her and Baby M. Had she not been limited to custody for four months, she could have proved all of these things much more persuasively through almost two years of custody.

The argument has considerable force. It is of course possible that the trial court was wrong in its initial award of custody. It is also possible that such error, if that is what it was, may have affected the outcome. We disagree with the premise, however, that in determining custody a court should decide what the child's best interests would be if some hypothetical state of facts had existed. Rather, we must look to what those best interests are, today, even if some of the facts may have resulted in part from legal error. The child's interests come first: we will not punish it for judicial errors, assuming any were made. See Wist v. Wist, 101 N.J. 509, 513-14 (1986); see also In re J.R. Guardianship, 174 N.J. Super. 211 (App.Div.), certif. den., 85 N.J. 102 (1980) (although not explicitly mentioned, natural mother's loss of parental rights based substantially on failures of DYFS to arrange visitation with her child). The custody decision must be based on all circumstances, on everything that actually has occurred, on everything that is relevant to the child's best interests. Those circumstances include the trip to Florida, the telephone calls and threats, the substantial period of successful custody with the Sterns, and all other relevant circumstances. We will discuss the question of the correctness of the trial court's initial orders below, but for purposes of determining Baby M's best interests, the correctness of those initial orders has lost relevance.

There were eleven experts who testified concerning the child's best interests, either directly or in connection with matters related to that issue. Our reading of the record persuades us that the trial court's decision awarding custody to the Sterns (technically to Mr. Stern) should be affirmed since "its findings... could reasonably have been reached on sufficient credible evidence present in the record." Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)); see Palermo v. Palermo, 164 N.J. Super. 492, 498 (App.Div. 1978) (noting that family court judge was experienced in dealing with such matters and had opportunity to observe parties and become immersed in details of case). More than that, on this record we find little room for any different conclusion. The trial court's treatment of this issue, 217 N.J. Super. at 391-400, is both comprehensive and, in most respects, perceptive. We agree substantially with its analysis with but few exceptions that, although important, do not change our ultimate views.

Our custody conclusion is based on strongly persuasive testimony contrasting both the family life of the Whiteheads and the Sterns and the personalities and characters of the individuals. The stability of the Whitehead family life was doubtful at the time of trial. Their finances were in serious trouble (foreclosure by Mrs. Whitehead's sister on a second mortgage was in process). Mr. Whitehead's employment, though relatively steady, was always at risk because of his alcoholism, a condition that he seems not to have been able to confront effectively. Mrs. Whitehead had not worked for quite some time, her last two employments having been part-time. One of the Whiteheads' positive attributes was their ability to bring up two children, and apparently well, even in so vulnerable a household. Yet substantial question was raised even about that aspect of their home life. The expert testimony contained criticism of Mrs. Whitehead's handling of her son's educational difficulties. Certain of the experts noted that Mrs. Whitehead perceived herself as omnipotent and omniscient concerning her children. She knew what they were thinking, what they wanted, and she spoke for them. As to Melissa, Mrs. Whitehead expressed the view that she alone knew what that child's cries and sounds meant. Her inconsistent stories about various things engendered grave doubts about her ability to explain honestly and sensitively to Baby M — and at the right time — the nature of her origin. Although faith in professional counseling is not a sine qua non of parenting, several experts believed that Mrs. Whitehead's contempt for professional help, especially professional psychological help, coincided with her feelings of omnipotence in a way that could be devastating to a child who most likely will need such help. In short, while love and affection there would be, Baby M's life with the Whiteheads promised to be too closely controlled by Mrs. Whitehead. The prospects for wholesome, independent psychological growth and development would be at serious risk.

The Sterns have no other children, but all indications are that their household and their personalities promise a much more likely foundation for Melissa to grow and thrive. There is a track record of sorts — during the one-and-a-half years of custody Baby M has done very well, and the relationship between both Mr. and Mrs. Stern and the baby has become very strong. The household is stable, and likely to remain so. Their finances are more than adequate, their circle of friends supportive, and their marriage happy. Most important, they are loving, giving, nurturing, and open-minded people. They have demonstrated the wish and ability to nurture and protect Melissa, yet at the same time to encourage her independence. Their lack of experience is more than made up for by a willingness to learn and to listen, a willingness that is enhanced by their professional training, especially Mrs. Stern's experience as a pediatrician. They are honest; they can recognize error, deal with it, and learn from it. They will try to determine rationally the best way to cope with problems in their relationship with Melissa. When the time comes to tell her about her origins, they will probably have found a means of doing so that accords with the best interests of Baby M. All in all, Melissa's future appears solid, happy, and promising with them.

Based on all of this we have concluded, independent of the trial court's identical conclusion, that Melissa's best interests call for custody in the Sterns. Our above-mentioned disagreements with the trial court do not, as we have noted, in any way diminish our concurrence with its conclusions. We feel, however, that those disagreements are important enough to be stated. They are disagreements about the evaluation of conduct. They also may provide some insight about the potential consequences of surrogacy.

It seems to us that given her predicament, Mrs. Whitehead was rather harshly judged — both by the trial court and by some of the experts. She was guilty of a breach of contract, and indeed, she did break a very important promise, but we think it is expecting something well beyond normal human capabilities to suggest that this mother should have parted with her newly born infant without a struggle. Other than survival, what stronger force is there? We do not know of, and cannot conceive of, any other case where a perfectly fit mother was expected to surrender her newly born infant, perhaps forever, and was then told she was a bad mother because she did not. We know of no authority suggesting that the moral quality of her act in those circumstances should be judged by referring to a contract made before she became pregnant. We do not countenance, and would never countenance, violating a court order as Mrs. Whitehead did, even a court order that is wrong; but her resistance to an order that she surrender her infant, possibly forever, merits a measure of understanding. We do not find it so clear that her efforts to keep her infant, when measured against the Sterns' efforts to take her away, make one, rather than the other, the wrongdoer. The Sterns suffered, but so did she. And if we go beyond suffering to an evaluation of the human stakes involved in the struggle, how much weight should be given to her nine months of pregnancy, the labor of childbirth, the risk to her life, compared to the payment of money, the anticipation of a child and the donation of sperm?

There has emerged a portrait of Mrs. Whitehead, exposing her children to the media, engaging in negotiations to sell a book, granting interviews that seemed helpful to her, whether hurtful to Baby M or not, that suggests a selfish, grasping woman ready to sacrifice the interests of Baby M and her other children for fame and wealth. That portrait is a half-truth, for while it may accurately reflect what ultimately occurred, its implication, that this is what Mary Beth Whitehead wanted, is totally inaccurate, at least insofar as the record before us is concerned. There is not one word in that record to support a claim that had she been allowed to continue her possession of her newly born infant, Mrs. Whitehead would have ever been heard of again; not one word in the record suggests that her change of mind and her subsequent fight for her child was motivated by anything other than love — whatever complex underlying psychological motivations may have existed.

We have a further concern regarding the trial court's emphasis on the Sterns' interest in Melissa's education as compared to the Whiteheads'. That this difference is a legitimate factor to be considered we have no doubt. But it should not be overlooked that a best-interests test is designed to create not a new member of the intelligentsia but rather a well-integrated person who might reasonably be expected to be happy with life. "Best interests" does not contain within it any idealized lifestyle; the question boils down to a judgment, consisting of many factors, about the likely future happiness of a human being. Fantony v. Fantony, supra, 21 N.J. at 536. Stability, love, family happiness, tolerance, and, ultimately, support of independence — all rank much higher in predicting future happiness than the likelihood of a college education. We do not mean to suggest that the trial court would disagree. We simply want to dispel any possible misunderstanding on the issue.

Even allowing for these differences, the facts, the experts' opinions, and the trial court's analysis of both argue strongly in favor of custody in the Sterns. Mary Beth Whitehead's family life, into which Baby M would be placed, was anything but secure — the quality Melissa needs most. And today it may be even less so.^[18] Furthermore, the evidence and expert opinion based on it reveal personality characteristics, mentioned above, that might threaten the child's best development. The Sterns promise a secure home, with an understanding relationship that allows nurturing and independent growth to develop together. Although there is no substitute for reading the entire record, including the review of every word of each experts' testimony and reports, a summary of their conclusions is revealing. Six experts testified for Mrs. Whitehead: one favored joint custody, clearly unwarranted in this case; one simply rebutted an opposing expert's claim that Mary Beth Whitehead had a recognized personality disorder; one testified to the adverse impact of separation on Mrs. Whitehead; one testified about the evils of adoption and, to him, the probable analogous evils of surrogacy; one spoke only on the question of whether Mrs. Whitehead's consent in the surrogacy agreement was "informed consent"; and one spelled out the strong bond between mother and child. None of them unequivocally stated, or even necessarily implied, an opinion that custody in the Whiteheads was in the best interests of Melissa — the ultimate issue. The Sterns' experts, both well qualified — as were the Whiteheads' — concluded that the best interests of Melissa required custody in Mr. Stern. Most convincingly, the three experts chosen by the court-appointed guardian ad litem of Baby M, each clearly free of all bias and interest, unanimously and persuasively recommended custody in the Sterns.

Some comment is required on the initial ex parte order awarding custody pendente lite to the Sterns (and the continuation of that order after a plenary hearing). The issue, although irrelevant to our disposition of this case, may recur; and when it does, it can be of crucial importance. When father and mother are separated and disagree, at birth, on custody, only in an extreme, truly rare, case should the child be taken from its mother pendente lite, i.e., only in the most unusual case should the child be taken from its mother before the dispute is finally determined by the court on its merits. The probable bond between mother and child, and the child's need, not just the mother's, to strengthen that bond, along with the likelihood, in most cases, of a significantly lesser, if any, bond with the father — all counsel against temporary custody in the father. A substantial showing that the mother's continued custody would threaten the child's health or welfare would seem to be required.

In this case, the trial court, believing that the surrogacy contract might be valid, and faced with the probable flight from the jurisdiction by Mrs. Whitehead and the baby if any notice were served, ordered, ex parte, an immediate transfer of possession of the child, i.e., it ordered that custody be transferred immediately to Mr. Stern, rather than order Mrs. Whitehead not to leave the State. We have ruled, however, that the surrogacy contract is unenforceable and illegal. It provides no basis for either an ex parte, a plenary, an interlocutory, or a final order requiring a mother to surrender custody to a father. Any application by the natural father in a surrogacy dispute for custody pending the outcome of the litigation will henceforth require proof of unfitness, of danger to the child, or the like, of so high a quality and persuasiveness as to make it unlikely that such application will succeed. Absent the required showing, all that a court should do is list the matter for argument on notice to the mother. Even her threats to flee should not suffice to warrant any other relief unless her unfitness is clearly shown. At most, it should result in an order enjoining such flight. The erroneous transfer of custody, as we view it, represents a greater risk to the child than removal to a foreign jurisdiction, unless parental unfitness is clearly proved. Furthermore, we deem it likely that, advised of the law and knowing that her custody cannot seriously be challenged at this stage of the litigation, surrogate mothers will obey any court order to remain in the jurisdiction.

VI.

VISITATION

The trial court's decision to terminate Mrs. Whitehead's parental rights precluded it from making any determination on visitation. 217 N.J. Super. at 399, 408. Our reversal of the trial court's order, however, requires delineation of Mrs. Whitehead's rights to visitation. It is apparent to us that this factually sensitive issue, which was never addressed below, should not be determined de novo by this Court. We therefore remand the visitation issue to the trial court for an abbreviated hearing and determination as set forth below.^[19]

For the benefit of all concerned, especially the child, we would prefer to end these proceedings now, once and for all. It is clear to us, however, that it would be unjust to do so and contrary to precedent.

The fact that the trial court did not address visitation is only one reason for remand. The ultimate question is whether, despite the absence of the trial court's guidance, the record before us is sufficient to allow an appellate court to make this essentially factual determination. We can think of no issue that is more dependent on a trial court's factual findings and evaluation than visitation.

When we examine the record on visitation, the only testimony explicitly dealing with the issue came from the guardian ad litem's experts. Examination of this testimony in light of the complete record, however, reveals that it was an insignificant part of their opinions. The parties, those with a real stake in the dispute, offered no testimony on the issue. The cause for this insufficiency of guidance on the visitation issue was unquestionably the parties' concentration on other, then seemingly much more important, questions: custody, termination of parental rights, and the validity of the surrogacy contract.

Even if we were willing to rely solely on the opinions of the guardian ad litem's experts, their testimony was not fully developed because the issue was not the focus of the litigation. Moreover, the guardian's experts concentrated on determining "best interests" as it related to custody and to termination of parental rights. Their observations about visitation, both in quality and quantity, were really derivative of their views about custody and termination. The guardian's experts were concerned that given Mrs. Whitehead's determination to have custody, visitation might be used to undermine the Sterns' parental authority and thereby jeopardize the stability and security so badly needed by this child. Two of the experts recommended suspension of visitation for five years and the other suspension for an undefined period. None of them fully considered the factors that have led our courts ordinarily to grant visitation in other contexts, with no suspension, even where the non-custodial parent was less than a paragon of virtue. See, e.g., Wilke v. Culp, supra, 196 N.J. Super. at 496; In re Adoption by J.J.P., supra, 175 N.J. Super. at 430. Based on the opinions of her experts, the guardian ad litem recommended suspension of Mrs. Whitehead's visitation rights for five years, with a reevaluation at that time. The basis for that recommendation, whether one regards it as the right or the wrong conclusion, was apparently bolstered when it was learned that Mrs. Whitehead had become pregnant, divorced Richard Whitehead, and then married the father of her new child-to-be. Without any further expert testimony, the guardian ad litem revised her position. She now argues that instead of five years, visitation should be suspended until Melissa reaches majority. This radical change in the guardian ad litem's position reinforces our belief that further consideration must be given to this issue.

The foregoing does not fully describe the extent to which this record leaves us uninformed on the visitation issue. No one, with one exception, included a word about visitation in the final briefs before the trial court. The exception was Mrs. Whitehead's parents who argued for their own visitation. This claim was denied by the trial court and is not now before us. The oral summations of counsel before the trial court were almost equally bereft of even a reference to the visitation issue. Mrs. Whitehead's counsel did not mention visitation. The Sterns' counsel referred to the guardian ad litem's expert testimony about visitation, not to argue for or against visitation but only to support his argument in favor of termination of Mrs. Whitehead's parental rights. The guardian ad litem did argue the visitation issue, devoting a minimal portion of her summation to it. Only the grandparents dealt with visitation, but with their visitation, not with the issue of Mrs. Whitehead's visitation. Finally, on appeal before this Court the record on visitation is inadequate — especially when compared to the treatment of other issues.

We join those who want this litigation to end for the benefit of this child. To spare this two-year-old another sixty to ninety days of litigation, however, at the risk of wrongly deciding this matter, which has life-long consequences for the child and the parties, would be unwise.

We also note the following for the trial court's consideration: First, this is not a divorce case where visitation is almost invariably granted to the non-custodial spouse. To some extent the facts here resemble cases where the non-custodial spouse has had practically no relationship with the child, see Wilke v. Culp, supra, 196 N.J. Super. 487; but it only "resembles" those cases. In the instant case, Mrs. Whitehead spent the first four months of this child's life as her mother and has regularly visited the child since then. Second, she is not only the natural mother, but also the legal mother, and is not to be penalized one iota because of the surrogacy contract. Mrs. Whitehead, as the mother (indeed, as a mother who nurtured her child for its first four months — unquestionably a relevant consideration), is entitled to have her own interest in visitation considered. Visitation cannot be determined without considering the parents' interests along with those of the child.

In all of this, the trial court should recall the touchstones of visitation: that it is desirable for the child to have contact with both parents; that besides the child's interests, the parents' interests also must be considered; but that when all is said and done, the best interests of the child are paramount.

We have decided that Mrs. Whitehead is entitled to visitation at some point, and that question is not open to the trial court on this remand. The trial court will determine what kind of visitation shall be granted to her, with or without conditions, and when and under what circumstances it should commence. It also should be noted that the guardian's recommendation of a five-year delay is most unusual — one might argue that it begins to border on termination. Nevertheless, if the circumstances as further developed by appropriate proofs or as reconsidered on remand clearly call for that suspension under applicable legal principles of visitation, it should be so ordered.

In order that the matter be determined as expeditiously as possible, we grant to the trial court the broadest powers to reach its determination. A decision shall be rendered in no more than ninety days from the date of this opinion.

The trial court shall, after reviewing the transcripts and other material, determine in its discretion whether further evidence is needed and through what witnesses it shall be presented. The trial court should consider limiting the witnesses to the experts who testified and to Mr. and Mrs. Stern and Mr. and Mrs. Whitehead, using its own judgment in deciding which of them, if any, shall be called on to give further evidence. The trial court, in its discretion, may either hear testimony or receive verified written submissions, relaxing the Rules of Evidence to the extent compatible with reliable fact-finding and desirable for an expeditious decision.^[20] Many significant facts bearing on visitation have already been adduced. Although additional evidence may be important, we believe that fairness does not necessarily require that it be produced with all of the procedural safeguards implicit in the Evidence Rules. When it comes to custody matters, application of rules, including those concerning evidence, must on some occasions be flexible, New Jersey Div. of Youth & Family Servs. v. S.S., 185 N.J. Super. 3 (App.Div.), certif. den., 91 N.J. 572 (1982), especially in view of the child's interests in this unique situation.

Any party wishing to appeal from the trial court's judgment on visitation shall file a notice of appeal within ten days thereafter, the Court hereby reducing the ordinary time to appeal pursuant to Rule 2:12-2. Any such appeal is hereby certified to this Court.

Any further proceedings in this matter, or related thereto, if made by application to the trial court shall be made to the judge to whom the matter is assigned on remand. That direction applies to applications related to this matter in any way: whether made before, during, or after proceedings on remand, and regardless of the nature of the application. Any applications for appellate review shall be made directly to this Court.

We would expect that after the visitation issue is determined the trial court, in connection with any other applications in the future, will attempt to assure that this case is treated like any other so that this child may be spared any further damaging publicity.

While probably unlikely, we do not deem it unthinkable that, the major issues having been resolved, the parties' undoubted love for this child might result in a good faith attempt to work out the visitation themselves, in the best interests of their child.

CONCLUSION

This case affords some insight into a new reproductive arrangement: the artificial insemination of a surrogate mother. The unfortunate events that have unfolded illustrate that its unregulated use can bring suffering to all involved. Potential victims include the surrogate mother and her family, the natural father and his wife, and most importantly, the child. Although surrogacy has apparently provided positive results for some infertile couples, it can also, as this case demonstrates, cause suffering to participants, here essentially innocent and well-intended.

We have found that our present laws do not permit the surrogacy contract used in this case. Nowhere, however, do we find any legal prohibition against surrogacy when the surrogate mother volunteers, without any payment, to act as a surrogate and is given the right to change her mind and to assert her parental rights. Moreover, the Legislature remains free to deal with this most sensitive issue as it sees fit, subject only to constitutional constraints.

If the Legislature decides to address surrogacy, consideration of this case will highlight many of its potential harms. We do not underestimate the difficulties of legislating on this subject. In addition to the inevitable confrontation with the ethical and moral issues involved, there is the question of the wisdom and effectiveness of regulating a matter so private, yet of such public interest. Legislative consideration of surrogacy may also provide the opportunity to begin to focus on the overall implications of the new reproductive biotechnology — in vitro fertilization, preservation of sperm and eggs, embryo implantation and the like. The problem is how to enjoy the benefits of the technology — especially for infertile couples — while minimizing the risk of abuse. The problem can be addressed only when society decides what its values and objectives are in this troubling, yet promising, area.

The judgment is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

For affirmance in part, reversal in part and remandment — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN — 7.

Opposed — None.

[1] Subsequent to the trial court proceedings, Mr. and Mrs. Whitehead were divorced, and soon thereafter Mrs. Whitehead remarried. Nevertheless, in the course of this opinion we will make reference almost exclusively to the facts as they existed at the time of trial, the facts on which the decision we now review was reached. We note moreover that Mr. Whitehead remains a party to this dispute. For these reasons, we continue to refer to appellants as Mr. and Mrs. Whitehead.

[2] The Stern-Whitehead contract (the "surrogacy contract") and the Stern-ICNY contract are reproduced below as Appendices A and B respectively. Other ancillary agreements and their attachments are omitted.

[3] Another argument advanced by Mrs. Whitehead is that the surrogacy agreement violates state wage regulations, N.J.S.A. 34:11-4.7, and the Minimum Wage Standard Act, N.J.S.A. 34:11-56a to -56a30. Given our disposition of the matter, we need not reach those issues.

[4] N.J.S.A.9:3-54 reads as follows:

a. No person, firm, partnership, corporation, association or agency shall make, offer to make or assist or participate in any placement for adoption and in connection therewith

(1) Pay, give or agree to give any money or any valuable consideration, or assume or discharge any financial obligation; or

(2) Take, receive, accept or agree to accept any money or any valuable consideration.

b. The prohibition of subsection a. shall not apply to the fees or services of any approved agency in connection with a placement for adoption, nor shall such prohibition apply to the payment or reimbursement of medical, hospital or other similar expenses incurred in connection with the birth or any illness of the child, or to the acceptance of such reimbursement by a parent of the child.

c. Any person, firm, partnership, corporation, association or agency violating this section shall be guilty of a high misdemeanor.

[5] Of course, here there are no "adoptive parents," but rather the natural father and his wife, the only adoptive parent. As noted, however, many of the dangers of using money in connection with adoption may exist in surrogacy situations.

[6] Counsel for the Sterns argues that the Parentage Act empowers the court to terminate parental rights solely on the basis of the child's best interests. He cites N.J.S.A.9:17-53c, which reads, in pertinent part, as follows:

The judgment or order may contain any other provision directed against the appropriate party to the proceeding concerning the duty of support, the custody and guardianship of the child, visitation privileges with the child, the furnishing of bond or other security for the payment of the judgment, the repayment of any public assistance grant, or any other matter in the best interests of the child. [Emphasis supplied].

We do not interpret this section as in any way altering or diluting the statutory prerequisites to termination discussed above. Termination of parental rights differs qualitatively from the matters to which this section is expressly directed, and, in any event, we have no doubt that if the Legislature had intended a substantive change in the standards governing an area of such gravity, it would have said so explicitly.

[7] We conclude not only that the surrogacy contract is an insufficient basis for termination, but that no statutory or other basis for termination existed. See infra at 444-447.

[8] The surrogacy situation, of course, differs from the situation in Sees, in that here there is no "adoptive couple," but rather the natural father and the stepmother, who is the would-be adoptive mother. This difference, however, does not go to the basis of the Sees holding. In both cases, the determinative aspect is the vulnerability of the natural mother who decides to surrender her child in the absence of institutional safeguards.

[9] And the impact on the natural parents, Mr. Stern and Mrs. Whitehead, is severe and dramatic. The depth of their conflict about Baby M, about custody, visitation, about the goodness or badness of each of them, comes through in their telephone conversations, in which each tried to persuade the other to give up the child. The potential adverse consequences of surrogacy are poignantly captured here — Mrs. Whitehead threatening to kill herself and the baby, Mr. Stern begging her not to, each blaming the other. The dashed hopes of the Sterns, the agony of Mrs. Whitehead, their suffering, their hatred — all were caused by the unraveling of this arrangement.

[10] We note the argument of the Sterns that the sperm donor section of our Parentage Act, N.J.S.A. 9:17-38 to -59, implies a legislative policy that would lead to approval of this surrogacy contract. Where a married woman is artificially inseminated by another with her husband's consent, the Parentage Act creates a parent-child relationship between the husband and the resulting child. N.J.S.A. 9:17-44. The Parentage Act's silence, however, with respect to surrogacy, rather than supporting, defeats any contention that surrogacy should receive treatment parallel to the sperm donor artificial insemination situation. In the latter case the statute expressly transfers parental rights from the biological father, i.e., the sperm donor, to the mother's husband. Ibid.Our Legislature could not possibly have intended any other arrangement to have the consequence of transferring parental rights without legislative authorization when it had concluded that legislation was necessary to accomplish that result in the sperm donor artificial insemination context.

This sperm donor provision suggests an argument not raised by the parties, namely, that the attempted creation of a parent-child relationship through the surrogacy contract has been preempted by the Legislature. The Legislature has explicitly recognized the parent-child relationship between a child and its natural parents, married and unmarried, N.J.S.A. 9:17-38 to -59, between adoptive parents and their adopted child, N.J.S.A. 9:3-37 to -56, and between a husband and his wife's child pursuant to the sperm donor provision, N.J.S.A. 9:17-44. It has not recognized any others — specifically, it has never legally equated the stepparent-stepchild relationship with the parent-child relationship, and certainly it has never recognized any concept of adoption by contract. It can be contended with some force that the Legislature's statutory coverage of the creation of the parent-child relationship evinces an intent to reserve to itself the power to define what is and is not a parent-child relationship. We need not, and do not, decide this question, however.

[11] Michigan courts have also found that these arrangements conflict with various aspects of their law. See Doe v. Kelley, 106 Mich. App. 169, 307 N.W.2d 438 (1981), cert. den., 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983) (application of sections of Michigan Adoption Law prohibiting the exchange of money to surrogacy is constitutional); Syrkowski v. Appleyard, 122 Mich. App. 506, 333 N.W.2d 90 (1983) (court held it lacked jurisdiction to issue an "order of filiation" because surrogacy arrangements were not governed by Michigan's Paternity Act), rev'd, 420 Mich. 367, 362 N.W.2d 211 (1985) (court decided Paternity Act should be applied but did not reach the merits of the claim).

Most recently, a Michigan trial court in a matter similar to the case at bar held that surrogacy contracts are void as contrary to public policy and therefore are unenforceable. The court expressed concern for the potential exploitation of children resulting from surrogacy arrangements that involve the payment of money. The court also concluded that insofar as the surrogacy contract may be characterized as one for personal services, the thirteenth amendment should bar specific performance. Yates v. Keane, Nos. 9758, 9772, slip op. (Mich.Cir.Ct. Jan. 21, 1988).

The Supreme Court of Kentucky has taken a somewhat different approach to surrogate arrangements. In Surrogate Parenting Assocs. v. Commonwealth ex. rel. Armstrong, 704 S.W.2d 209 (Ky. 1986), the court held that the "fundamental differences" between surrogate arrangements and baby-selling placed the surrogate parenting agreement beyond the reach of Kentucky's baby-selling statute. Id. at 211. The rationale for this determination was that unlike the normal adoption situation, the surrogacy agreement is entered into before conception and is not directed at avoiding the consequences of an unwanted pregnancy. Id. at 211-12.

Concomitant with this pro-surrogacy conclusion, however, the court held that a "surrogate" mother has the right to void the contract if she changes her mind during pregnancy or immediately after birth. Id. at 212-13. The court relied on statutes providing that consent to adoption or to the termination of parental rights prior to five days after the birth of the child is invalid, and concluded that consent before conception must also be unenforceable. Id. at 212-13.

The adoption phase of an uncontested surrogacy arrangement was analyzed in Matter of Adoption of Baby Girl, L.J., 132 Misc.2d 972, 505 N.Y.S.2d 813 (Sur. 1986). Although the court expressed strong moral and ethical reservations about surrogacy arrangements, it approved the adoption because it was in the best interests of the child. Id. at 815. The court went on to find that surrogate parenting agreements are not void, but are voidable if they are not in accordance with the state's adoption statutes. Id. at 817. The court then upheld the payment of money in connection with the surrogacy arrangement on the ground that the New York Legislature did not contemplate surrogacy when the baby-selling statute was passed. Id. at 818. Despite the court's ethical and moral problems with surrogate arrangements, it concluded that the Legislature was the appropriate forum to address the legality of surrogacy arrangements. Ibid.

In contrast to the law in the United States, the law in the United Kingdom concerning surrogate parenting is fairly well-settled. Parliament passed the Surrogacy Arrangements Act, 1985, ch. 49, which made initiating or taking part in any negotiations with a view to making or arranging a surrogacy contract a criminal offense. The criminal sanction, however, does not apply to the "surrogate" mother or to the natural father, but rather applies to other persons engaged in arranging surrogacy contracts on a commercial basis. Since 1978, English courts have held surrogacy agreements unenforceable as against public policy, such agreements being deemed arrangements for the purchase and sale of children. A. v. C., [1985] F.L.R. 445, 449 (Fam. & C.A. 1978). It should be noted, however, that certain surrogacy arrangements, i.e., those arranged without brokers and revocable by the natural mother, are not prohibited under current law in the United Kingdom.

[12] Opponents of surrogacy have also put forth arguments based on the thirteenth amendment, as well as the Peonage Act, 42 U.S.C. § 1994 (1982). We need not address these arguments because we have already held the contract unenforceable on the basis of state law.

[13] As a general rule, a person should be accorded the right to make decisions affecting his or her own body, health, and life, unless that choice adversely affects others. Thus, the United States Supreme Court, while recognizing the right of women to control their own bodies, has rejected the view that the federal constitution vests a pregnant woman with an absolute right to terminate her pregnancy. Instead, the Court declared that the right was "not absolute" so that "at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant." Roe v. Wade, supra, 410 U.S. at 155, 93 S.Ct. at 728, 35 L.Ed.2d at 178. The balance struck in Roe v. Wade recognizes increasing rights in the fetus and correlative restrictions on the mother as the pregnancy progresses. Similarly, in the termination-of-treatment cases, courts generally have viewed a patient's right to terminate or refuse life-sustaining treatment as constrained by other considerations including the rights of innocent third parties, such as the patient's children. Matter of Farrell, 108 N.J. 335, 352 (1987); Matter of Conroy, 98 N.J. 321, 353 (1985). Consistent with that approach, this Court has directed a mother to submit to a life-saving blood transfusion to protect the interests of her unborn infant, even though the mother's religious scruples led her to oppose the transfusion. Raleigh-Fitkin Paul Morgan Hosp. v. Anderson, 42 N.J. 421, 423 (1964); see also Application of President & Directors of Georgetown College, 331 F.2d 1000, 1008 (D.C. Cir.), cert. den., 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964) (ordering blood transfusion because of mother's "responsibility to the community to care for her infant").

In the present case, the parties' right to procreate by methods of their own choosing cannot be enforced without consideration of the state's interest in protecting the resulting child, just as the right to the companionship of one's child cannot be enforced without consideration of that crucial state interest.

[14] This fundamental right is not absolute. The parent-child biological relationship, by itself, does not create a protected interest in the absence of a demonstrated commitment to the responsibilities of parenthood; a natural parent who does not come forward and seek a role in the child's life has no constitutionally protected relationship. Lehr v. Robertson, supra, 463 U.S. at 258-62, 103 S.Ct. at 2991-93, 77 L.Ed.2d at 624-27; Quilloin v. Walcott, supra, 434 U.S. at 254-55, 98 S.Ct. at 554, 54 L.Ed.2d at 519-20. The right is not absolute in another sense, for it is also well settled that if the state's interest is sufficient the right may be regulated, restricted, and on occasion terminated. See Santosky v. Kramer, supra, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599.

[15] Were we to find such a constitutional determination necessary, we would be faced with the question of whether it was state action — essential in triggering the fourteenth amendment — that deprived her of that right i.e., whether the judicial decision enforcing the surrogacy contract should be considered "state action" within the scope of the fourteenth amendment. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Cherminsky, "Rethinking State Action," 80 Nw.U.L.Rev. 503 (1985).

[16] If the Legislature were to enact a statute providing for enforcement of surrogacy agreements, the validity of such a statute might depend on the strength of the state interest in making it more likely that infertile couples will be able to adopt children. As a value, it is obvious that the interest is strong; but if, as plaintiffs assert, ten to fifteen percent of all couples are infertile, the interest is of enormous strength. This figure is given both by counsel for the Sterns and by the trial court, 217 N.J. Super.at 331. We have been unable to find reliable confirmation of this statistic, however, and we are not confident of its accuracy. We note that at least one source asserts that in 1982, the rate of married couples who were both childless and infertile was only 5.8%. B. Wattenberg, The Birth Dearth 125 (1987).

On such quantitative differences, constitutional validity can depend, where the statute in question is justified as serving a compelling state interest. The quality of the interference with the parents' right of companionship bears on these issues: if a statute, like the surrogacy contract before us, made the consent given prior to conception irrevocable, it might be regarded as a greater interference with the fundamental right than a statute that gave that effect only to a consent executed, for instance, more than six months after the child's birth. There is an entire spectrum of circumstances that strengthen and weaken the fundamental right involved, and a similar spectrum of state interests that justify or do not justify particular restrictions on that right. We do not believe it would be wise for this Court to attempt to identify various combinations of circumstances and interests, and attempt to indicate which combinations might and which might not constitutionally permit termination of parental rights.

We will say this much, however: a parent's fundamental right to the companionship of one's child can be significantly eroded by that parent's consent to the surrender of that child. That surrender, if voluntarily and knowingly made, may reduce the strength of that fundamental right to the point where a statute awarding custody and all parental rights to an adoptive couple, especially one that includes a parent of the child, would be valid.

[17] At common law the rights of women were so fragile that the husband generally had the paramount right to the custody of children upon separation or divorce. State v. Baird, 21 N.J. Eq. 384, 388 (E. & A. 1869). In 1860 a statute concerning separation provided that children "within the age of seven years" be placed with the mother "unless said mother shall be of such character and habits as to render her an improper guardian." L. 1860, c. 167. The inequities of the common-law rule and the 1860 statute were redressed by an 1871 statute, providing that "the rights of both parents, in the absence of misconduct, shall be held to be equal." L. 1871, c. 48, § 6 (currently codified at N.J.S.A. 9:2-4). Under this statute the father's superior right to the children was abolished and the mother's right to custody of children of tender years was also eliminated. Under the 1871 statute, "the happiness and welfare of the children" were to determine custody, L. 1871, c. 48, § 6, a rule that remains law to this day. N.J.S.A.9:2-4.

Despite this statute, however, the "tender years" doctrine persisted. See, e.g., Esposito v. Esposito, 41 N.J. 143, 145 (1963); Dixon v. Dixon, 71 N.J. Eq. 281, 282 (E. & A. 1906); M.P. v. S.P., 169 N.J. Super. 425, 435 (App.Div. 1979). This presumption persisted primarily because of the prevailing view that a young child's best interests necessitated a mother's care. Both the development of case law and the Parentage Act, N.J.S.A. 9:17-40, however, provide for equality in custody claims. In Beck v. Beck, 86 N.J. 480, 488 (1981), we stated that it would be inappropriate "to establish a presumption ... in favor of any particular custody determination," as any such presumption may "serve as a disincentive for the meticulous fact-finding required in custody cases." This does not mean that a mother who has had custody of her child for three, four, or five months does not have a particularly strong claim arising out of the unquestionable bond that exists at that point between the child and its mother; in other words, equality does not mean that all of the considerations underlying the "tender years" doctrine have been abolished.

[18]Subsequent to trial, and by the time of oral argument, Mr. and Mrs. Whitehead had separated, and the representation was that there was no likelihood of change. Thereafter Mrs. Whitehead became pregnant by another man, divorced Mr. Whitehead, and remarried the other man. Both children are living with Mrs. Whitehead and her new husband. Both the former and present husband continue to assert the desire to have whatever parental relationship with Melissa that the law allows, Mrs. Whitehead continuing to maintain her claim for custody.

We refer to this development only because it suggests less stability in the Whiteheads' lives. It does not necessarily suggest that Mrs. Whitehead's conduct renders her any less a fit parent. In any event, this new development has not affected our decision.

[19] As we have done in similar situations, we order that this matter be referred on remand to a different trial judge by the vicinage assignment judge. The original trial judge's potential "commitment to its findings," New Jersey Div. of Youth & Family Servs. v. A.W., supra, 103 N.J. at 617, and the extent to which a judge "has already engaged in weighing the evidence," In re Guardianship of R., 155 N.J. Super. 186, 195 (App.Div. 1977), persuade us to make that change. On remand the trial court will consider developments subsequent to the original trial court's opinion, including Mrs. Whitehead's divorce, pregnancy, and remarriage.

[20] Ordinarily relaxation of the Rules of Evidence depends on specific authority, either within the Rules or in statutes. See N.J.Rules of Evidence, Comment 2 to Evid.R. 2(2), 72-76 (1987). There are numerous examples, however, of relaxation of these Rules in judicial proceedings for reasons peculiar to the case at hand. We regard the circumstances of the visitation aspect of this case as most unusual. In addition to the ordinary risks to the stability of an infant caused by prolonging this type of litigation, here there are risks from publicity that we simply cannot quantify. We have no doubt that these circumstances justify any sensible means of abbreviating the remand hearing.