Women Who Use Surrogates Not Entitled To Same Parental Rights As Men Who Use Artificial Insemination, Court Holds

New Jersey’s highest court has denied parental rights to an infertile woman who arranged with her husband to a have a child carried by a surrogate. A 3-3 tie vote forced the court to accept the opinion of the lower court, and reject arguments that a New Jersey law unconstitutionally discriminated against women when it granted rights only to infertile men.

The New Jersey Parentage Act (N.J.S.A.) allows infertile men parental rights to a child carried by their wife via artificial insemination, even though the sperm come from a different man. It does not, however, grant parental rights to infertile women like the plaintiff, who similarly seek to have children through alternative means using their husband’s sperm.

In distinguishing between the two scenarios, the majority opinion noted that surrogates also have a stake in the outcome, with the option to seek parental rights. In a famous New Jersey case involving “Baby M,” the same court found that a surrogate carrying a child with her own egg could not be forced to relinquish her parental rights, even though she had already agreed to give the baby away. But as the New York Times points out, couples rarely now use the egg of the surrogate, instead relying on an anonymous egg donor and the sperm of the father in what is called “gestational surrogacy.”

The surrogate in this case had already relinquished her parental rights, and was not disputing that issue. Instead, it was the state’s Department of Health and Human Services that intervened, claiming the woman’s name had improperly been included on the child’s birth certificate, and that the wife (A.L.S.) would have to go through the time and expense of the adoption process.

A three-justice dissent lamented the majority’s reliance on hypothetical scenarios, when the rights of the surrogate were not at issue in this case:

Although the purpose of the Parentage Act was for “all children and parents [to] have equal rights with respect to each other,” see Sponsor’s Statement, Statement to Senate Bill No. 888 (Jan. 19, 1982), that is not the case when one set of rights is granted to an infertile husband and his intended child, and a lesser set of rights is granted to an infertile wife and her intended child. In light of the rights conferred on an infertile husband by N.J.S.A. 9:17-44(a), there is no legitimate State interest in denying the infertile wife the ability to become the natural parent of the child conceived by her husband’s sperm when the surrogate, seventy-two hours after the child’s birth, lawfully relinquishes her parental rights. The surrogate’s surrender of her rights places A.L.S., if not in the same shoes, in similar shoes as the infertile husband.

As the case of “Baby M” shows, this is not an easy issue. State lawmakers have been wary to enter the fray of regulating surrogacy agreements, and the majority’s hesitation to question the legislature’s judgment reflects the cultural uncertainty surrounding this issue. In New Jersey, for example, a bill that would have put the names of infertile parents almost immediately on the birth certificate was vetoed by Gov. Chris Christie in August.

But as the dissent points out, this challenge is about whether this particular woman was discriminated against, not whether a third party might have a claim to parental rights in some other case. New Jersey’s law rightly attempts to keep up with the modern familial realities and to ensure that all parents have “equal rights.” Unfortunately, it falls far short of that goal by failing to provide any comparable mechanism by which an infertile woman — or an individual in a same-sex couple for that matter — can gain automatic legal rights to a child. Instead, because the plaintiff contributed no genetic material to the equation, she will be asked to go through the legal hoops of earning the right to the child she has now been mothering for three years.