Shades of the Baby M case, in a new generation and a new context. A married heterosexual couple with an infertile wife and fertile husband, decides to have a child by means of a donor egg, fertilized in vitro with the husband’s sperm. They then have an embryo implanted in the uterus of a surrogate mother (not the egg donor), who agrees to carry the baby to term for them.
The New Jersey Parentage Act, N.J.S.A. 9:17-38 to-59, provides that the surrogate, who could be the biological mother of the child, or, in this case, the gestational mother, has 72 hours following the birth to choose whether or not to surrender her parental rights. You may remember the famous Baby M case in 1988 in which the surrogate (biological) mother had contracted with a couple to be inseminated with the husband’s sperm and bear a child for them, but later regretted her decision and took the child from the couple. The New Jersey Supreme court ultimately voided the surrogacy contract as against public policy, and remanded to the trial court which ultimately awarded the couple custody and gave the surrogate mother visitation rights.
In contrast in The Matter of the Parentage of a Child by T.J.S. and A.L.S., the gestational surrogate mother has not sought parental rights, but the couple involved sought a pre-birth judgment that the wife is the mother of the child, as contemplated in their contract with the surrogate. The Appellate Division declined to hold that the wife, A.L.S. is entitled to be considered the mother until after the expiration of the 72 hour waiting period following the birth.
The Appellate Division held that it is not a violation of equal protection to require the infertile wife to gain parental rights by adoption, after the expiration of the 72 hour waiting period, even though a husband whose wife is impregnated (with his consent) by artificial insemination, is deemed to be the father of the child even prior to birth. The court discussed the difference between the real, biological situations of men and women, indicating that the legislature had a rational reason for gaining children the support of a father in artificial insemination situations, and a different rational reason for respecting the rights of a woman who carries a child for 9 months, whether biologically related to her or not.
C. Megan Oltman, Esq.
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