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.