I am going to withhold comment on this opinion until I have some more information on the underlying facts. But for the time being, this case highlights how the legal system has not kept pace with modern technology as New Jersey law never contemplated the role of egg donors in family building. Ultimately the New Jersey Court of appeal determined that state law only permits parenthood to be established through genetic consanguinity, delivery of the child or by completing an adoption. Hopefully this decision will serve as a clarion call to New Jersey and other states with similar laws, to revisit the issue of parenthood in light of the surrogacy and gamete donation. For the time being, however, this opinion means that the baby and all similarly situated children delivered with the assistance of a gestational carrier and an egg donor, have no legal mother unless a step-parent adoption is undertaken:
A state appellate court issued an opinion last week in a case that seems as complicated as the child’s parentage: The boy, identified only as T.D.S., was conceived outside the womb with sperm from his father and an egg from an anonymous donor. The embryo then was implanted into a “gestational carrier,” or surrogate, retained by the father and his infertile wife.
So which woman is named as the mother on the boy’s current birth certificate: the egg donor who provided his genetic material or the one who gave birth to him in July 2009? Neither. It’s the infertile wife.
She and her husband first obtained the surrogate’s agreement to give up her parental rights, then got a Family Court order before the boy’s birth that allowed them to be listed as parents on the boy’s certificate. The order took effect when the surrogate waived her rights three days after childbirth. At least that was the plan, says Donald Cofsky, a Haddonfield attorney for the husband and wife, who now live in Union County. But the state Registrar, an office that records birth certificates, asserted after the child’s birth the wife had no legal grounds to claim maternity. Her only option, it said, is stepparent adoption.
The Family Court judge in Camden agreed with the Registrar, which wants to issue a second birth certificate — this one with the mother’s name left blank. And now, a three-judge appellate panel has upheld the Registrar’s view. “(We) were very disappointed with the decision,” said Cofsky, who said the ruling could pose serious legal risks for couples like his clients, as well as for some babies conceived through in vitro fertilization. Cofsky also said the state’s Parentage Act, which played a key role in the case, could not envision recent breakthroughs in reproductive technology. “This statute is from 1983,” he said. “Nobody knew about anonymous egg donors back then.”
In his appeal, Cofsky argued the wife’s rights were violated under the law because husbands are treated differently. When a husband consents to his wife’s artificial insemination, he is considered the father of any baby that results, the attorney said. “Why does it make a difference who donates the genetic material?” asked Cofsky. “Why does a wife have to wait several months for a stepparent adoption? “Why does she have to be fingerprinted and undergo a background check for child abuse? It’s some sort of second-class citizenship.”
But in its 28-page decision, the appellate panel noted state law allows just three ways to establish parenthood — genetics, giving birth or adoption. “Where a husband has a child, born to another woman, while married to his wife, the wife may only establish a parental relationship with the child by adoption,” the ruling said. “Simply put, the Legislature has determined when a woman is the legal mother of a child, and it does not include the present circumstance.”
The judges also said the law’s presumption of fatherhood for infertile husbands is appropriate, in part because the state needs to identify a potential source of child support for babies born through artificial insemination. Deputy Attorney General Kimberly E. Jenkins, who represented the Registrar, said the decision “is significant because it provides clarity and uniformity where uncertainty once existed. “Importantly, all interested parties . . . now have guidance on the process for establishing parentage in these situations.”
Cofsky said his clients, who live with the child, may seek to have the decision reviewed by the state Supreme Court. “My clients very much believe in the principle of this matter, not just for themselves but for others.” If the legal fight does not continue, Cofsky said, the Registrar is prepared to issue a third birth certificate after completion of stepparent adoption. That certificate would list the wife as the boy’s mother. But the adoption process could take three months and cost about $3,000. And a lot can go wrong while an adoption is pending, he said. For instance, if the father died before the adoption took effect, the wife would have no legal claim to his child.
Here’s hoping that these parents seek review by the state Supreme Court. Not just for themselves, but to eliminate the clear discrimination that exists in New Jersey law which allows a man using donor sperm to be considered the father, but would deny his wife the right to be declared the mother if she used donor eggs. Moreover, it could open the door to same-sex couples in New Jersey to be declared the co-parents without the need to proceed with a second parent adoption.