In its annual look back at notable law cases argued before the New Jersey Supreme Court over the past year, the New Jersey Law Journal highlights a case that divided the court on the rights of infertile women. Namely, should an infertile woman who uses a surrogate to have a baby be allowed to be named on the child’s birth certificate as mother, or is the woman required to go through the New Jersey adoption process first before being considered a child’s legal mother?
The case involves a New Jersey couple unable to conceive due to infertility on the part of the woman. To still have a child, the couple did what an increasing number of 21st-century parents with the financial means have done: they obtained an egg from an anonymous donor and then hired a surrogate to carry the child for them.
To prevent any difficulties down the road with parentage, the couple went about taking steps they believed would make sure all their legal ducks were in a row, including having the surrogate legally renounce her right to the child, and having a judge pre-emptively order that their names appear on the birth certificate.
This step — having the wife’s name placed on the birth certificate — is where their plans hit a snag. When the state found out this happened, it sued, successfully, to strip the wife’s name from the birth certificate. The couple argued this was discrimination. After all, state law automatically makes an infertile husband the father if his wife uses a sperm donor, so why should the same presumption not apply to an infertile wife? As the New York Times reported, an appeals court disagreed with that distinction, siding with state officials who argued adoption was the only option for a mother with no genetic connection to a child.
In late 2012, the New Jersey Supreme Court deadlocked over how to handle the wife’s plea to be named the mother of the child, which has effectively left the child, now 3, legally motherless. Three justices agreed with the couple that the law should not treat infertile women differently from infertile men, but three others argued that allowing women who hire surrogates to bypass adoption gives special privileges to those who can afford surrogacy.
The justices also said in their ruling that the New Jersey State Legislature, not the courts, should be dealing with these types of questions of social policy. Ironically, the Legislature passed a bill in June 2012 — four months before this ruling — that would have avoided similar situations. That bill, however, was vetoed by the governor before it could become a law.
Almost one year later, it’s unclear whether the couple involved in this case will decide to pursue this matter legally or opt to go through the adoption process to have the women recognized as the child’s mother. A concern for this couple, or other couples facing a similar situation would be what could happen if the couple decides to divorce. If the woman does not have legal claim as a parent of the child, her rights to custody and parenting time could be placed in jeopardy.
What do you think? Is there a double standard for infertile women in New Jersey?