Are You My Mother? (Guest Post for Kimberly Mutcherson)

[Editorial Note: This Post is by Kimberly Mutcherson]

Some states have come to terms with commercial surrogacy and create standards to protect parties to contracts and the children born of those contracts. New Jersey, however, just can’t seem to get it right when it comes to surrogacy arrangements. I suppose that is no surprise coming from the state that brought us one of the nation’s most notorious surrogacy related custody disputes—the 1988 Baby M. case. Over 20 years after Baby M., our state courts continue to run scared from the reality of 3rd party reproduction.  The latest blow to sensible policy related to surrogacy comes from an October 2012 New Jersey Supreme Court decision in a case called, In Re: The Parentage of a Child by T.J.S. and A.L.S. The facts are fairly simple within the world of assisted reproduction. A married man and woman hired a gestational surrogate to carry an embryo formed from the husband’s sperm and an egg purchased from an anonymous source. The only two people in this arrangement who were interested in being parents to the child born of this pregnancy were the husband and wife.

To protect their interests and those of the gestational surrogate who, after all, was not looking to add another child to her household, the intended parents sought a pre-birth order from family court. That order was a declaration of parentage, which would have allowed the names of the intended parents to appear on the child’s birth certificate after the gestational carrier voluntarily relinquished her rights to the child. By statute, the relinquishment of parental rights could not take place until 72-hours after the child’s birth. As was contemplated by the agreement between the parties, three days after the child’s birth, the surrogate relinquished her rights after which the pre-birth order required the release of a birth certificate with the names of the intended parents. Here is where things got loopy. The State Registrar got wind of the pre-birth order and moved to vacate the portion of the order as to the issuance of the birth certificate. New Jersey, thus, took the position that the intended mother in a gestational surrogacy arrangement who has no genetic tie to a child cannot be listed on the child’s birth certificate and must complete an adoption procedure in order to secure a legal relationship with the child.

In contrast to this set of circumstance, the New Jersey Parentage Act allows a man to be the legal father of child, without an adoption, where he consents to his wife being artificially inseminated with another man’s sperm. If you are a father with no genetic connection to a child and your wife carries the baby, you are the father and she is the mother. If you are a wife with no genetic connection to a child and a gestational surrogate carries the child, you are a legal stranger to that child unless and until you complete an adoption procedure.The intended parents argued in the Appellate Division that this distinction violated equal protection. The court disagreed and an equally divided Supreme Court upheld this decision when it could not find a majority on either side of the issue.

What we are left with in New Jersey is a system that is failing families.

The legislature tried to bring some consistency to the field with an amendment to the Parentage Act that would have dealt with the disparate treatment of female intended parents versus male intended parents when it comes to genetic connection, but Governor Chris Christie vetoed the bill claiming concerns about acting too hastily.

Of course, hasty is in the eye of the beholder. For the many families whose existence relies upon assisted reproduction because of choice or circumstances, be they heterosexual couples coping with infertility, same-sex couples, or any couple using technology to avoid passing on genetic disease or disability, there is, at this point, a great deal of information available about assisted reproduction in general and surrogacy in particular. If we need more information, then the state should seek to gather such information, which it is not doing. There are thriving message boards where surrogates talk openly and with great pride about the reproductive labor that they perform. There are beautiful families in which a range of parents and children love and support each other in exactly the ways that we want families to care for each other.  No doubt, pregnancy matters and surrogacy makes so many of us uncomfortable because of its implications for women’s bodies and for children as commodities, but we do not serve the interests of children by creating confusion about who their parents are and that is what the state of the law in New Jersey currently does.

I. Glenn Cohen

I. Glenn Cohen is the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and current Faculty Director of the Petrie-Flom Center. A member of the inaugural cohort of Petrie-Flom Academic Fellows, Glenn was appointed to the Harvard Law School faculty in 2008. Glenn is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law. He also teaches civil procedure. From Seoul to Krakow to Vancouver, Glenn has spoken at legal, medical, and industry conferences around the world and his work has appeared in or been covered on PBS, NPR, ABC, CNN, MSNBC, Mother Jones, the New York Times, the New Republic, the Boston Globe, and several other media venues. He was the youngest professor on the faculty at Harvard Law School (tenured or untenured) both when he joined the faculty in 2008 (at age 29) and when he was tenured as a full professor in 2013 (at age 34).

3 thoughts to “Are You My Mother? (Guest Post for Kimberly Mutcherson)”

  1. Very interesting analysis.

    Here’s a link to the Supreme Court case:

    The equal protection claim seems strong at first, but the appellate division’s reasoning is stronger than I expected. Here’s the excerpt from the NJSCOTUS decision describing it.

    “The Appellate Division affirmed, holding that the plain language of the Act provides for a declaration of maternity only to a biologically- or gestationally-related female and requires adoption to render A.L.S. the mother of T.D.S, N.J.S.A. 9:17-41. The Appellate Division held that the right to be legally declared the child’s mother based solely on the parties’ shared intent and by the most convenient and immediate means possible is not a fundamental right, and that Section 44’s gender-based differentiation may survive an equal protection challenge if it is based on real physiological differences between men and women. The panel explained that on its face, Section 44 applies only to artificial insemination and operates to remove the sperm donor from the parental equation while eliminating the potential of having a child created with no legal father. Paternity attaches to the infertile husband because of the sperm donor’s lack of temporal, physical, and emotional investment in the child’s creation, which is in contrast to the surrogate mother, whose parental rights are deemed worthy of protection and thus stand in the way of the infertile wife’s claim to automatic motherhood. The Appellate Division concluded that the Legislature, by recognizing a genetic link, birth, and adoption as acceptable means of establishing parenthood, has not preferred one spouse over the other because of gender; where one spouse is infertile, an equal protection claim has not been articulated because their respective situations are not parallel; the Legislature is allowed to proceed incrementally in addressing parentage issues presented by different forms of reproductive procedures, and it may consider situational differences in defining alternative means of creating parenthood; the Act’s different treatment is grounded in actual reproductive and biological differences, necessitating, in the case of an infertile wife, the introduction of a birth mother whom the law cloaks with superior protection; and, given the State’s interests in making identification of the father easier when the child is born during the marriage for child support purposes and in requiring more than a shared intent before effectuating a legal change in the parental relationship, the Act’s distinctions are supported by a rational basis.”

  2. I could see how that would be very troublesome to the child as he grew up. Thought I may not be a big deal to some. I wouldn’t think it would be a big deal to just let the parents and not the donors…actually be the parents, as that was the original intention.

  3. I could see how that would be very troublesome to the child as he grew up. Thought I may not be a big deal to some. I wouldn’t think it would be a big deal to just let the parents and not the donors…actually be the parents, as that was the original intention.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.