Surrogacy in NJ–Playing Catch Up

This story is about a trial court opinion from the end of last year, but I just haven’t gotten to write about it.   You can also read about it here and then there’s this spin-off opinion piece, which is probably worthy of its own post. 

One reason I’ve been thinking about this case is that recently I’ve been writing a bit about women who wish to raise children without fathers.   These may be lesbian couples or they may be single women, but they have a common need for donor sperm.   (In many jurisdictions, a child conceived with donor sperm do not have a legal father.  Practically speaking, even in jurisdictions where a donor might be a father, the rights on an unknown donor can be reliably terminated.)    

In that context, some comments raised the question about gender equity–what about men who want to raise children without mothers?  

Gender equity is tricky in this area, as there is a fairly fundamental difference between men and women.  While women need only obtain sperm, which is relatively simple, men need to obtain not only an egg (which is not that much harder to obtain than sperm) but also a womb–or to put it more completely, a woman willing to be pregnant and give birth to the child.

This means that men need surrogacy in order to raise children without mothers.   And they need accommodating law–law that does not necessarily recognize a woman who gives birth as a legal mother.  (Adoption might also be available to all the people I’m thinking of, but let’s just put that to one side for now.)

Which brings us to the NJ case.   Donald Robinson Hollingsworth and Sean Hollingsworth are a married NJ gay couple.   They wished to have a child.   Donald’s sister, Angelia Robinson, agreed to be a surrogate for them.   Embryos were created with sperm from Sean Hollingsworth and eggs from an anonymous source.  They were transferred to Angelia’s womb and, in October 2006, twin girls were born.   

In March 2007,  Ms. Robinson filed suit, seeking custody of the children.   In the ensuing custody fight, the critical question was whether Ms. Robinson was a legal parent.  If she was, she could clearly seek custody.  If she was not, she could not.    The trial court held that she was a parent.    Custody of the twins has not yet been determined.  

Over 20 years ago, the New Jersey Supreme Court decided the first major surrogacy case, Baby M.  In that case, Mary Beth Whitehead had been inseminated with sperm from William Stern.   The plan was for Stern and his wife to be parents of the child.  After giving birth,  Whitehead sought to assert her parental rights with respect to the child while the Sterns sought to enforce the surrogacy agreement.   The NJ Supreme Court determined that surrogacy was against public policy (at least in NJ) and so Whitehead and Stern both had parental rights.

Baby M contributed to the rise of gestational surrogacy–surrogacy where a egg from someone other than the surrogate is used, so that the surrogate gives birth to a baby with whom she does not share a genetic link.     This case is the first in NJ to raise the question of the legal status of a gestational surrogate. 

The opinion here is worth a read.   The court discusses court opinions from other states, particularly California, that conclude that a gestational surrogate does not have parental rights.   Yet this court concludes that the same concerns that lead to the result in Baby M are present here and thus, the court reaches the same result–Ms. Robinson is a legal parent.  

One sentence in the opinion crystallizes the different views NJ and CA take: 

The California case took the position that it is disrespectful toward women to not allow them to enter into agreements of this nature, …whereas New Jersey law takes a clearly different position that agreements of this nature have a “potential for devastation” to women.  [citations omitted.]

That’s certainly one of the issues that lies at the heart of surrogacy debates. 

I’ve written about surrogacy a number of times in the past.  Most recently, there are a series of posts about some empirical research on surrogacy that I found quite informative.    The research suggests that the cases that reach the papers–like this one–are hardly typical.     That’s worth keeping in mind even if they are still worth thinking about.

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8 responses to “Surrogacy in NJ–Playing Catch Up

  1. This is a very interesting case, not the least reason because this is a State which has not set out a procedure for affirming parentage in gestational surrogacy cases. It appears however, that parentage was granted to the Dads, but the Order was voided.

    It also appears that, with this particular judge, there is a nexus between active parenting and an argument for claiming a parentage order is void.

    While I am confident the trial order will be overturned on appeal, there is a clear lesson here.

    When a jurisdiction does not provide a clearly defined procedure for affirming parentage in gestational surrogacy, tread lightly and make sure to get everyone evaluated psychologically… with an MMPI.

  2. Did Ms. Robinson relinquish the baby willingly anytime after the birth? To me, that would be the critical question.

    • This really focuses on a critical question around surrogacy. Ms. Robinson only has to relinquish if she has parental rights after the birth If she has no parental rights, then no reliquishment is required. So again, one reverts to the question whether she is a legal parent, and perhaps the related question of what might make her a parent in the eyes of the law.

      As surrogacy is constructed in some places, the woman who gives birth to a genetically unrelated child has no parental rights and therefore, there is no reliquishment. That means, of course, that she cannot change her mind and refuse to reliquish. It appears that in NJ, at least as far as this court has ruled, she does have rights. In that case, since she has not relinquished, the retains the rights.

  3. This is not to say that I would consider choosing Ms. Robinson instead of the bio-dad- rather I would consider choosing both of them.

  4. Robinson and Hollingsworth are now both legal parents, but I assume they will still have a custody battle because she wants primary custody over the dad.

    I would have said the surrogate is in a weak position, not having planned to coparent at all, but it sounds like she is now parenting the kids 3 days a week, per the Times article. So reality has already trumped the original plans in several ways.

    If there was coercion (as Ms Robinson has alleged) obviously the dads would have acted immorally and might be unfit parents.

    But assuming no coercion, respecting the bond that may form between a woman and a baby to whom she gave birth, I would like visitation rights to be the default assumption in surrogacy agreements. They maybe should be set up more like open adoption and less like “rent-a-womb”. It might make it easier for the parties to anticipate and process the painful feelings that sometimes arise.

  5. Julie, I’m supposing since you generally regard genetic relatedness as being irrelevant, that you would consider the rationale in the Baby M case to be binding here. Certainly in terms of precedent.

    • That’s actually a great question. I take your suggestion to be that since I discount genetics, then Baby M and this case are really no different. After all, the only distinction is the genetics, and I’m reading that out.

      I think you are correct–I should consider them the same. And I think I do. On a technical legal level, that means Baby M would be a binding precedent for the trial court. On a more academic level, I should be consistent in whatever I think about them–both right, both wrong, whatever. I suppose I ought to ponder a little more whether I really do find them the same–it’s a good moment to test my principles.

  6. In terms of financial “fairness,” if a court decides that surrogate can have custody of the child after it is born, then she should also be responsible for reimbursing the original intended parents for their original costs and expenses for the expensive fertility & IVF treatments, plus any compensation/financial support she received as a result of surrogacy. Otherwise, what is to stop a woman who decides on a whim that she’d like to become a mother and enters a “surrogacy” arrangement when her actual intent all along is to keep the baby? That sort of requirement might keep Nadya Sulemann-type whackos out of surrogacy.

    It might also be worth mentioning that when she turned eighteen, the original “Baby M.” (Melissa Stern) terminated the parental rights of her biological/surrogate mother and formalized her parent/daughter relationship with Elizabeth Stern through adoption proceedings.

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