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Assisted Reproduction

New Jersey Case Update: Gestational Carrier/Aunt Given Parental Visitation Rights

Back in 2009, we blogged about this bizarre and unfortunate case out of New Jersey where a trial judge ruled that a gestational carrier was the legal mother of the child she delivered for her brother and his partner. My colleague, Steve Snyder, was kind enough to alert me to the recent ruling which just came down from the trial judge, Francis Schultz. As predicted, the result defies logic and is an insult to all same-sex couples who desire to raise a family. Apparently, in the world Judge Schultz occupies, battered women should not be entitled to restraining orders and same-sex couples cannot be the exclusive co-parents of their children. So while the biological father received custody, the surrogate was granted visitation and nowhere are the parental rights of Donald Robinson Hollingsworth addressed:

It was not the typical custody case.

On one side of the parental tug-of-war over the 5-year-old twin girls at the center of the long-fought court battle were Donald Robinson Hollingsworth and Sean Hollingsworth — a gay couple who married in California and live in Jersey City. On the other was Angelia Robinson, Donald Hollingsworth’s sister, who agreed to serve as a surrogate, ultimately giving birth to the girls through a donor embryo fertilized by Sean Hollingsworth.

At issue for the judge in a case of complicated and strained family relationships, and a contractual agreement with the mother that ended in a bitter lawsuit, was who could best care for the twins. A Hudson County Superior Court judge last week awarded full custody to the biological father, Sean Hollingsworth, while preserving the parental visitation rights of Robinson — who in an earlier court ruling had been declared to be the legal mother.

Through their attorneys, neither parent would comment on the case. But in his opinion, Judge Francis Schultz touched on frayed ties between the two sides. “The parents’ ability to agree, communicate and cooperate in matters relating to the children is nonexistent here,” he wrote. “They hardly speak verbally to each other and there is little communication in writing. They disagree on what school the children should attend, what religion the children should be brought up in, and what they should be told about surrogacy, what they should be told about the gay lifestyle and there is uncertainty as to how the children will be instructed as to their biracial heritage.”

The judge said one thing was clear: “There can be no joint legal custody in this case.” The attorney for the father, Karim Kaspar of Lowenstein Sandler in Roseland, called it a landmark ruling for tolerance and diversity. “This decision is a victory for parents, particularly those in nontraditional families who value diversity and inclusion and pass those values along to their children,” he said.

Attorney Harold Cassidy of Shrewsbury, who represented Robinson, responded that the case had nothing to do with the rights of same-sex couples. “This entire case was litigated on the basis that the sexual orientation of the proposed adoptive parties is absolutely irrelevant,” he stated. “No one raised it. The issue of whether a same sex-couple can be good custodial parents is not an issue in this state. It has not been an issue for 35 years.”

Cassidy said the mother had found herself in circumstances where she was dependent on her brother for a place to live and compelled to sign a contract the day before the embryo implanted. According to court records, Robinson, then living in Texas, struck an agreement in 2005 to become a surrogate for her brother and his partner. She moved to Jersey City, where her brother lived, and was given a job his New York accounting firm. When it was determined that her own eggs could not be used, a donor egg fertilized by Sean Hollingsworth was implanted.

After the girls were born following near-fatal complications for the mother and the infants, the two men took custody of the children. While Robinson had access to the girls, the relationship between her and her brother soon began to badly deteriorate and a lawsuit was filed months later, with Robinson claiming she was coerced into the surrogacy arrangement.

Granted visitation rights, Robinson was found to be the legal mother in a 2009 ruling by Schultz, despite not being genetically related to the children — a ruling that relied heavily on the decades-old Baby M case that determined surrogate mother Mary Beth Whitehead was in fact the biological mother of a child she carried for another couple.

Kaspar said Sean Hollingsworth and his partner felt she had agreed to help them start a family before backing out and changing her mind. “That was a source of tension,” he said.

Cassidy, who had represented Whitehead, said a surrogate contract was legally unenforceable in New Jersey. The judge, in his custody ruling last week, noted the children had bonded well with both the mother and the Hollingsworths. But he said the twins had unique needs, both in how they were conceived, that their father and his partner are in a same-sex relationship, and that there were differences in the churches they attend.

In court proceedings, the judge specifically noted the anti-gay views of both Robinson, who now lives in Middletown, and her mother — who cared for the children when her daughter was at work on days she had custody. In his ruling, he said while Robinson and her mother meant well, be believed “the inevitable would occur” in discussions with the children. “Their strong feelings about surrogacy and homosexuality will be understood by the girls and will have a very damaging effect on them It will make them feel ashamed of themselves.”

He said the stability of their lives in Jersey City, where they presently attend kindergarten, was also a factor. While he did not find any of the parties lacked parental fitness, he said the best interests of the children would be served by awarding custody to the father with visitation rights for the mother.

Cassidy said his client was considering an appeal. “She thought she was going to be involved in the lives of the children,” he said. “She could not and did not expect or anticipate what the experience was going to be like; that there was going to be a falling out.”

Just for the sake of clarity, while the child has been placed in the custody of the Hollingsworths (reversing Judge Schultz’s earlier decision), there is no indication that Donald Hollingsworth has been recognized as a co-parent with Sean Hollingsworth. In fact, Judge Schultz frequently refers to the singluar “father” Also disconcerting is Judge Schultz’s frequent references in his ruling to the surrogate as a “parent” (i.e., “The parents’ ability to agree, communicate and cooperate in matters relating to the children is nonexistent here…”) which by implication deprives Donald Hollingsworth of any legal status as a father.

Finally, most reprehensible was this quote by Judge Schultz, “Their strong feelings about surrogacy and homosexuality will be understood by the girls and will have a very damaging effect on them. It will make them feel ashamed of themselves.” Really? How exactly does Judge Schultz know this? If nothing else, this last sentence is homophobic and bigoted and demonstrates an apparent innate bias which should have had Judge Schultz disqualified. And before anyone sends me an angry email for accusing Judge Schultz of being prejudiced in his ruling, just imagine if Judge Schultz had replaced “homosexuality” with “interracial marriage” and then tell me he shouldn’t be assailed for a blatantly racist comment.


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