applicability of this rule is whether the employ-
ment or services of the plaintiff were personal in
nature. The rule is not applicable in contracts
that do not require all, or a significant portion,
of the plaintiff’s time, or those that do not
preclude the plaintiff from becoming engaged in
simultaneous performance of other contracts.
Torts
A party who suffers a PERSONAL INJURY is required to
exercise ordinary care an d perseverance to f ind a
cure, thereby reducing the damages to the most
practicable extent. Such an individual should seek
reasonable medical care i f so required by the injury.
It is not necessary for the person to undergo
excessively painful treatment or that which involves
a significant hazard of death o r injury or o ffers a
mere possibility of a cure. The pain inherent in the
necessary medical care and treatment may be taken
into consideration in assessing whether the plaintiff
acted reasonably in declining to submit to it.
Although submission to treatment is not a
prerequis ite to an awa rd of damages, recovery
cannot be obtained for increased damages that
stem from the failure to submit to necessary
medical treatment. Conversely,themerefactthat
medical attention was not sought immediately, or
at all, will not proscribe an award of damages where
the circumstances did not reasonably indicate that
medical aid and attention was necessary.
In addition, an injured party has no absolute
duty to subscribe t o a physician’s advice t o miti-

An open declaration by an attorney representing a
party in a lawsuit, made after the jury has been
removed from the co urtroom, that requests the
admission of particular testimony from a witness
that would otherwise be inadmissible because it
has been successfully objected to during the trial.
An avowal serves two purposes. It enables
an
ATTORNEY to have the court learn what a
witness would have replied to a question had
opposing counsel not made an objection to the
question sustained by the court. It also provides
the interrogator with an opportunity to offer
evidence that contradicts the disputed
TESTIMONY.
If, upon appeal, an appellate court decides that
a witness should have been allowed to respond
to such questions before a jury, an avowal will
be a record of the witness’s response.
AVULSION
The immediate and noticeable addition to land
caused by its removal from the property of
another, by a sudden change in a water bed or
in the course of a stream.
When a stream that is a boundary suddenly
abandons its bed and seeks a new bed, the
boundary line does not change. It remains in
the center of the original bed even if water no
longer flows through it. This is known as the
rule of avulsion.

M, 109 N.J. 396, 537 A.2d 1227 (N.J. 1988).
Mary Beth Whitehead entered into a
contract with William Stern in which she agreed
to be artificially inseminated with Stern’s sperm.
At the time, Mary Beth was married to Richard
Whitehead, with whom she had two children.
In the Surrogate Parenting Agreement Mary Beth
agreed that after the baby was born she would
relinquish the baby to Stern and his wife
Elizabeth and would permit the termination of
her parental rights so that the Sterns could
adopt the baby. In return the Sterns would pay
Whitehead the sum of $10,000, plus expenses.
Elizabeth Stern was not a party to the contract.
Richard Whitehead did not object to the
contract and acknowledged that his wife would
be artificially inseminated by Stern’s sperm.
Prior to the Baby M case, surrogacy agreements
had been most often used when the wife of the
adopting couple was infertile. But in the Baby M
case Elizabeth Stern was not infertile. Instead
the Sterns decided not to have Elizabeth bear a
child due to the possibility that being pregnant
would exacerbate her multiple sclerosis.
Under the Surrogate Parenting Agreement,
Mary Beth was not entitled to payment of her
$10,000 fee until after the child was born,
surrendered to the Sterns, and her parental
rights had been terminated. The contract also
provided that the Whiteheads would receive no

ING ORDER
and an order requiring the White-
heads to surrender Melissa to William Stern.
B
459
The Whiteheads refused to surr ender the child,
instead removing her from the state of New
Jersey and taking her to Florida. While in
Florida, Mary Beth Whitehead threatened to kill
the child if Stern did not drop his case to
enforce the surrogacy contract. She also threat-
ened to accuse William Stern of sexually
abusing Whitehead’s other daughter. Melissa
was later recov ered by law enforcement officials
in Florida and returned to New Jersey, where
the Sterns assumed custody under the New
Jersey court order.
The case then proc eeded to a trial on the
merits. During trial Mary Beth stressed the
bond that had developed between her and
Melissa, especially after the child ’s birth.
Whitehead testified that she intended to turn
over Melissa to the Sterns but that after the
child was born she was emotionally unable to
do so. She testified that she felt an obligation to
the Sterns but said that the “the obligation [she]
felt to [her] child was stronger.” Whitehead also
offered
TESTIMONY by child development experts
who testified as to the important and the unique

awarded custody of Melissa to W illiam and
Elizabeth Stern, and terminated Mary Beth
Whitehead’s parental rights, although the judge
permitted Mary Beth limited visitation rights
pending her direct appeal to the New Jersey
Supreme Court.
The New Jersey Supreme Court affirmed in
part, reversed in part, and remanded the case to
the trial court for further proceedings. Specifi-
cally, the state supreme court reversed the trial
court’s ruling that the surrogacy contract was
valid and enforceable. The supreme court said
the surrogacy contract was unlawful on two
different bases: (1) it conflicted with existing
New Jersey statutes and (2) it violated public
policy.
The high court ruled that the surrogacy
contract conflicted with state laws prohibiting
the use of money in connection with adoptions,
state laws requiring proof of parental unfitness
or
ABANDONMENT prior to the termination of
parental rights, and state laws affording a parent
the righ t to revoke a prior co nsent to
ADOPTION.
The contract also violated important principles
of New Jersey public policy. Among these
principles were the preference for retaining
children with their natural parents; the equal
status of mothers and fathers in custody

Whitehead visitation rights as the trial court
deemed appropriate. Following remand and
after conducting a further hearing, the trial
court granted Mary Beth Whitehead unsuper-
vised, uninterrupted, liberal visitation with
Melissa.
Baby M was the first case decided by a state
court of final jurisdic tion in which the lawful-
ness of a surrogacy contract was addressed.
States responded to the Baby M decision by
passing a flurry of legislation, which fell into
four classes.
The first class of legislation declares all
surrogacy agreements void and/or unenforce-
able in that jurisdiction. Such legislation has
been enacted in Arizona, the District of
Columbia, Indiana, Michigan, New York, North
Dakota, and Utah. The second class of legisla-
tion prohibits only surrogacy agreements in
which the surrogate is compensated with
something of value over the expenses incurred
as a result of the pregnancy. Such legislation has
been adopted in Kentucky, Louisiana, Mary-
land, Nebraska, and Washington. A third class
of legislation addresses one particular aspect of
surrogacy contracts. For example, Alabama,
Iowa, and West Virginia have exempted surro-
gacy agreements from statutory provisions
making it a crime to sell babies.
The fourth class of legislation provides for

FURTHER READINGS
Boyer, Paul S. 2001. Oxford Companion to United States
History. New York: Oxford Univ. Press.
NBC. January 25, 2002. Today Show Transcripts.
Richardson, Herbert, ed. 1987. On The Problem of Surrogate
Parenthood: Analyzing The Baby M Case. Lewiston, NY:
Mellen.
Robbins, Sara. 1988. Baby M Case: The Complete Trial
Transcripts. Superior Court of New Jersey, Chancery
Division, Family Part, Bergen County: Transcript of
Proceedings. Buffalo, NY: Hein.
CROSS REFERENCES
Adoption; Artificial Insemination; Custody; Parent and
Child; Surrogate Motherhood; Visitation Rights.
BACK PAY AWARD
A legally enforceable decree ordering an employer
to pay to an employee retroactively a designated
increase in his or her salary that occurred during
a particular period of employment. A decision
rendered by a judicial or quasi-judicial body that
an employee has a legal right to collect accrued
salary that has not been paid out to him or her.
Back pay awards ensue from
LITIGATION
involving employment discrimination and
issues regarding labor-management relations.
Federal
CIVIL RIGHTS legislation provides for
back pay awards to compensate the victim
for economic losses suffered as a result of

father, was educated at Trinity College, Cam-
bridge, where he enrolled at the age of twelve. In
1576 he was admitted to Gray’s Inn , one of the
four
INNS OF COURT in London, which were
institutions established for
LEGAL EDUCATION.He
also spent time in France as a member of the
English ambassador’s staff, before his father’s
sudden death required him to return to England
and resume his legal education so that he could
support his family. After completing his studies,
Bacon became a barrister in 1582 and then
attained the posts of reader (lecturer at the Inn)
and bencher (senior member of the Inn).
In 1584, at the age of twenty-three, Bacon
was elected to the House of Commons,
representing Taunton, Liverpool, the county of
Middlesex, Southampton, Ipswich, and the
University of Cambridge. In 1594 he argued
his first major case, Chudleigh’s Case (1 Co. Rep.
1136, 76 Eng. Rep. 261 [K.B. 1594]), which
involved the interpretation of complex inheri-
tance statutes. He also began writing about
science and philosophy and started work on his
first major volume, Temporis Partus Maximus
(The greatest part of time), though the book,
along with many of his earliest works, was never
published and so disappeared.
Through his friendship with Robert Dever-

enabled him to continue his feud with Coke. He
eventually prosecuted Coke for his role in the
case of Edmond Peacham, a clergyman charged
with treason for advocating rebellion against
OPPRESSION in an unpublished TREATISE, leading to
Coke’s dismissal in 1616. Bacon continued his
Sir Francis Bacon 1561–1626
◆◆◆◆
◆
◆◆◆
◆
❖❖
1626, Died; James I
died same year
1620 Novum Organum published
1617 Appointed lord keeper
of the Great Seal
1618–21 Served as lord
chancellor of England
1603 Elizabeth I died;
James I ascended throne
1600 Became
counsel to Elizabeth I
1613 Became attorney general
1607 Appointed
solicitor
general by
James I
1558 Elizabeth I
became queen

principles about how the world works. This
theory is the opposite of deductive reasoning,
which holds that one can draw specific conclu-
sions by reasoning from more general premises.
Bacon believed inductive reasoning to be more
useful because it permitted the development of
new theories that could be more generally and
widely applied to a variety of situations. The legal
systems of many countries, including the United
States, were eventually grounded on the applica-
tion of general laws derived from specific fact
situations to govern conduct.
Bacon was likewise a strong believer in
empiricism, the belief that experience is the
most important source of knowledge. According
to Bacon, scientists should try to learn about the
world by using information gathered through the
senses rather than by using reason or rules set
forth by religious or political authority. Empiri-
cism, like inductive reasoning, also influenced
the development of later legal philosophies, in
this case theories that viewed the law and justice
as emerging from social life and experience.
Bacon was a prolific writer throughout his
life, authoring a number of works expounding
his theories. The Novum Organum, his most well
known and widely read philosophical work, was
published in 1620. The Instauratio Magna (Great
instauration, from the Latin word instaurare, “to
renew or begin afresh”)wasacomprehensive

Following his ouster from the court, Bacon
returned to his large estate at Gorhambury, in
rural England, to devote all of his energies to
research and writing. He prepared digests of the
laws and wrote a history of Great Britain and its
monarchs. He planned to write six separate
natural histories, but only two were completed:
Historia Ventorum (History of the winds), which
was published in 1622, and Historia Vitae et Mortis
(History of life and death), which appeared the
Sir Francis Bacon.
LIBRARY OF CONGRESS.
JUDGES MUST BE
AWARE OF HARD
CONSTRUCTIONS
AND STRAINED
INFERENCES
, FOR
THERE IS NO WORSE
TORTURE THAN THE
TORTURE OF LAWS
.
—SIR FRANCIS BACON
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
BACON, SIR FRANCIS 463
following year. He also wrote the History of Henry
VII, published in 1622. In 1621 he enlarged his
volume of Essays, which he had first published in
1597, and in 1627 he published The New Atlantis.
He also corresponded with Italian philosophers

NEGLIGENCE. One can make an honest mistake
about one’s own rights and duties, but when the
rights of someone else are intentionally or
maliciously infringed upon, such conduct
demonstrates bad faith.
The existence of bad faith can minimize or
nullify any claims that a person alleges in a
lawsuit.
PUNITIVE DAMAGES, attorney’s fees, or
both, may be awarded to a party who must
defend himself or herself in an action brought
in bad faith.
Bad faith is a term commonly used i n the
law of contracts and other commercial dealings,
such as
COMMERCIAL PAPER, and in SECURED
TRANSACTIONS
. It is the opposite of GOOD FAITH,
the observance of reasonable standards of fair
dealings in trade that is required of every
merchant. A government official who selectively
enforces a nondiscriminatory law against the
members of a particular group or race, thereby
violating the
CIVIL RIGHTS of those individuals, is
acting in bad faith.
v
BADGER, GEORGE EDMUND
George Edmund Badger was a lawyer, judge,
and politician, and the subject of a U.S.

judge of N.C.
Superior Court
1841
Appointed
secretary of
the Navy
1853 Nomination to U.S.
Supreme Court defeated
1847–55
Served in U.S.
Senate
1861–65
Civil War
1866 Died,
Raleigh, N.C.
▼▼
▼▼
18001800
17751775
18251825
18501850
18751875
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
464 BAD FAITH
superior court, where he served five years before
resigning to practice law in Raleigh.
Initially a strong supporter of
ANDREW
JACKSON
, Badger became a Whig in the mid-

nominated for the Court, with little debate. But
it postponed consideration of Badger’s nomina-
tion until March 1853, so that Pierce could fill
the vacancy with his own nominee—effectively
defeating Badger’s nomination. The same tactic
would also be used to defeat later Supreme
Court nominees.
Badger served in the Senate until 1855. After
his retirement, he continued to practice law
and took an active role in politics, helping to
organize the Constitutional Union party in
1861. This party was made up of conservative
Whigs who had been alienated by the emer-
gence of
ABRAHAM LINCOLN as the leader of
the Republican party during the presidential
election of 1860. In its platform, the Constitu-
tional Union party took no stand on the issue
of
SLAVERY and strongly advocated preservation
of the Union. Badger was elected as a Union
candidate, but a convention was never held.
Though he was widely known as a national-
ist, when the Civil War broke out Badger was
elected to the North Carolina
SECESSION conven-
tion. At first he argued aga inst secession,
contending that it was unconstitutional. Instead
he offered a
DECLARATION OF INDEPENDENCE, which

battles at Antietam and
Chancellorsville
1861–65
U.S. Civil War
1864 Admitted to Pennsylvania bar
1870 Served as counselor for
Philadelphia and Reading R.R.
1901 Served as
president of Philadelphia
and Reading R.R.
1902 United
Mine Workers went on strike
1914–18
World War I
1914 Died,
Philadelphia, Pa.
▼▼
▼▼
18501850
18251825
18751875
19001900
19251925
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
BAER, GEORGE FREDERICK 465
During the Civil War, Baer fought on the
side of the Union at Bull Run, Antietam,
Chancellorsville, and Fredericksburg.
He was admitted to the bar in 1864, moved to
Reading,Pennsylvania,in1868,andin1870

DEFENDANT may be released on the
issuance of a citation such as a ticket for a driving
violation or when booked for a minor
MISDEMEAN-
OR
at a police station or jail. But for major
misdemeanors and felonies, the defendant must
appear before a judge before bail is determined.
The courts have several methods available for
releasing defendants on bail. The judge deter-
mines which of these methods is used. One
alternative is for the defendant to post a
BAIL BOND
or PLEDGE of money. The bond can be signed by a
professional surety holder, the accused, or the
family and friends of the accused. Signing the bail
bond is a promise that the defendant will appear
in the specified criminal proceeding. The defen-
dant’s failure to appear will cause the signers of
the bond to pay to the court the amount
designated. The amount of bail is generally an
amount determined in light of the seriousness of
the alleged offense.
A defendant can also be released upon her
or his own
RECOGNIZANCE, which is the defen-
dant’s written, uninsured promise to return for
trial. Such a release occurs only if the suspect
has steady employment, stable family ties, and a
history of residence in the community. Willful

guarantee the payment of a debt or the
fulfillment of some civil duty, as ordered by
the court.
The court sets the amount of bail, which is
generally based on the probable amount of
damage against the defendant. In some
instances, if informed of changed circum-
stances, the court might increase or reduce bail.
Cash, as opposed to a bail bond, may be
deposited with the court only w hen authorized
by statute. The purpose of the arrest and the
statutory provisions determine whether this
deposit may be used to pay the judgment
awarded to the plaintiff.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
466 BAIL
Criminal Prosecutions
The objective of bail in criminal actions is to
prevent the imprisonment of the accused prior to
trial while ensuring her or his appearance at trial.
Constitutional and statutory rights to bail prior to
conviction exist for most offenses, but state
constitutional provisions and statutes must be
consulted to determine the offenses to which bail
applies. The Bail Reform Act of 1984 governs bail
in federal offenses. It provides the federal
MAGISTRATE with alternatives to the incarceration
of the defendant. If the charge is a noncapital
offense (an offense not punishable by death), the
defendant may be released on her or his own

ear 2008, Statistical Tables, March 2009.
0 100 200 300 400 500 700600 800 900
2002
2003
2004
2005
2006
2007
2008
621.1
677.8
631.2
699.3
665.5
713.9
691.3
736.5
714.0
755.6
747.5
786.9
765.8
795.0
780.2
810.5
785.6
828.4
a
Rated capacity is the number of beds or inmates assigned to facilities within each jurisdiction.
Rated capacity