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Assisted Reproduction

New Jersey Rejects Maternity Rights Of A Woman Who Had Child Through Surrogacy

Yet again, New Jersey demonstrates just how regressive it is when it comes to the issue of surrogacy:

The intersection of parentage, gender equality, constitutional rights, and advances in reproductive technology was the focus of the Appellate Division’s opinion in In the Matter of the Parentage of a Child by T.J.S. and A.L.S., ___ N.J. Super. ___ (App. Div. 2011). The Appellate Division confronted two issues: 1) whether, under the New Jersey Parentage Act, N.J.S.A. 9:17-38 to -59, an infertile wife could be recognized as the legal mother of her husband’s biological child who was born by a gestational carrier; and 2) if not, whether the Parentage Act violated New Jersey’s equal protection constitutional clause by treating infertile women differently from infertile men, as paternity is presumed for men when their wives give birth during marriage. The Appellate Division held that the Parentage Act did not allow for maternity under such circumstances and that the different treatment of infertile men and women did not violate the constitution.

The plaintiffs, T.J.S., the husband, and A.L.S., the wife, were not able to have a child because A.L.S. could not carry a child to term. Therefore, the plaintiffs used the sperm of T.J.S. for an in-vitro fertilization of an ovum provided by an anonymous donor. The plaintiff also reached a surrogacy agreement with A.F., who served as the gestational carrier for the plaintiffs. After the ovum was fertilized, two human embryos were implanted in A.F.’s uterus. Those embryos were genetically related to the anonymous donor of the ovum and T.J.S.; neither the wife nor the gestational carrier had any biological connection to the child born of the procedure.

Prior to the birth, the plaintiffs sought a declaration of parentage under the Parentage Act, as well as a pre-birth order that required their names to be listed as the parents on the child’s birth certificate. The plaintiffs did not seek to proceed via the adoption route because it was an extended process that would place the child’s legal status in limbo. The Family Part court ordered that the birth certificate should list T.J.S. and A.L.S. as the parents so long as A.F. surrendered her parental rights. After the child was born A.F. did so. Soon thereafter, the Department of Health and Senior Services, Bureau of Vital Statistics and Registration (“Bureau”) learned about the Family Part’s order and moved to vacate the listing of A.L.S. as the mother on the birth certificate. The trial court granted that motion.

The plaintiffs appealed, arguing that the provisions of the Parentage Act that presumptively conferred paternity on a husband when a child is born to the wife during marriage, N.J.S.A. 9:17-43(a), or by operation of law when a donor sperm is used to artificially inseminate a wife, N.J.S.A. 9:17-44, should be read in a gender neutral manner and thereby apply to wives. Alternatively, the plaintiffs argued that if the court did not interpret those provisions in that manner, then the Parentage Act was unconstitutional. The Appellate Division rejected both arguments.

After discussing the requirements for birth certificates and noting that it merely records the fact of parentage as opposed to a legal finding of parentage, the Appellate Division reviewed the Parentage Act. The court explained that the purpose of the Act was to make the identification of a child’s father easier, which in turn would help to reduce the number of children that need public assistance. The Parentage Act identifies several ways by which a parental relationship can be established: 1) genetic contribution; 2) giving birth; or 3) adoption. Moreover, the Act presumes paternity when a child is born during a marriage or within 300 days after the marriage is terminated. The presumption of paternity that arises from a wife giving birth also applies to a husband who consents to his wife being inseminated by donor sperm. The Act does not extend the presumption of parentage to a wife whose husband fathers a child with another woman or to a wife who acknowledges her maternity of a child. Instead, when a husband has a child with another woman, a wife can only establish a maternal relationship with the child via adoption. Further, the Act does not authorize a presumption of parentage for an infertile wife whose husband’s sperm is used for the birth of a child by another woman.

Based on the provisions of the Parentage Act, the Appellate Division concluded that it could not be interpreted in a gender neutral manner. The court reasoned that such an interpretation was not plausible and that, “[s]imply put, the Legislature has determined when a woman is the legal mother of a child, . . . and it does not include the present circumstance.”

The Appellate Division then turned to the constitutional question and reviewed governing equal protection jurisprudence, including the standards by which it would evaluate the plaintiffs’ claims that a gender-based classification for infertile married women and infertile married men was unconstitutional. First, the Appellate Division ruled that Section 43(a)’s classification was not unconstitutional because it was specific to men since its purpose was to apply to situations in which it was “highly likely” that the man was the biological father. The court stressed that the legislative intent undergirding that section was to create paternity in such situations to ensure that the man would provide financial support to the child. Further, the court reasoned that the plain language of the provision made it clear that A.L.S. could not be presumed to be the mother of the child because there was no biological connection between them. Hence, the court determined that extending the presumption of motherhood when there is no genetic connection would be inconsistent with the Legislature’s intent.

With respect to Section 44, which confers paternity upon a man whose wife is inseminated with donor sperm so long as the husband consents, the Appellate Division first declared that it did not apply to the plaintiffs’ situation because A.L.S. was not inseminated. More generally, the court pointed out that Section 44 applies only to artificial insemination in situations involving an infertile husband, and its purpose is to eliminate the possibility that the sperm donor would have any parental rights. The court reasoned that Section 44 simply could not be extended to include other reproductive technologies like the in-vitro fertilization at issue.

In that regard, the court relied upon In re Baby M, 109 N.J. 396 (1988), in which the Supreme Court refused to extend Section 44 to surrogacy situations. Moreover, the Appellate Division observed that Section 44 had survived an equal protection constitutional challenge in In re Baby M, and it found the Supreme Court’s reasoning in that case equally persuasive, though the facts of that case were different. Acknowledging that the Legislature had not responded to the parentage issues raised in In re Baby M, the Appellate Division rejected the plaintiffs’ request to rewrite the Parentage Act to address their situation.

Although the Appellate Division did not “deny the intrinsic societal worth, emotional appeal, and compelling logic of granting A.L.S. parenthood to the child,” the Appellate Division was constrained by the fact that the Legislature had simply not authorized parentage in this circumstance. The court concluded that, “the Legislature, in recognizing genetic link, birth, and adoption as acceptable means of establishing parenthood, has not preferred one spouse over the other because of gender. And where both spouses are infertile, the law treats them identically by requiring adoption as the singular means of attaining parenthood. Where, however, only one of the spouses is infertile, an equal protection claim has not been articulated because their respective situations are not parallel and the Legislature is entitled to take these situational differences into account in defining additional means of creating parenthood. Thus, we are satisfied that the complained of disparate treatment is not grounded in gendered constructions of parenthood but in actual reproductive and biological differences, necessitating in the case of an infertile wife, the introduction of a birth mother whom the law cloaks with superior protection. Given the State’s valid interest in making identification of the father easier when the child is born during the marriage for child support purposes, … and its equally sound interest in requiring more than a shared intent before effectuating a legal change in the parental relationship between adult and child, the distinctions drawn by the Legislature in the Parentage Act are not without a rational basis and therefore pass constitutional muster.”

Instead of being called the Garden State, perhaps they should be renamed the Anti-Parenthood State.


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