[I’ve added in the link to the full opinion–it’s in the text below.] Last year I wrote about a NJ case that began with a surrogacy arrangement gone awry. DRH and SH are a gay male couple. They wanted to start a family. AGR, sister of DRH, agreed to serve as a surrogate. SH provided sperm and an egg from an unidentified provider was fertilized in vitro and transferred to AGR. After a difficult pregnancy, AGR gave birth to twins.
It seems clear that the original idea had been that DRH and SH would be the parents of the resulting child, but AGR changed her mind. In the opinion I discussed last year, the court determined that AGR was a legal parent (the mother) of the twins even though she was not genetically related to them. (This holding is at odds with conclusions reached in some other states and the principle is being reviewed by the NJ Supreme Court in a different matter that I’ll discuss in another post.)
That means that the case (which is called AGR vs. SH & DRH) becomes what amounts to a custody case. SH (the man who provided the sperm) is the legal father of the twins. AGR is the legal mother. The mother and the father do not agree on custody/care of the children, so the court must decide.
The opinion is long and detailed, and while this case is unusual in some regards, it’s the sort of opinion you would expect to get in a custody case–very much focussed on the specifics of the parties involved. (Remember that recent post about general/specific? That’s what I’m alluding to.)
For my purposes there are a couple of noteworthy points. First, this is a pointed reminder of what happens when people are determined to be legal parents. Had the court initially decided that AGR was not a legal mother, none of the detailed analysis would have been necessary and the litigation would have ended months ago. But because this is seen as a custody fight between legal parents, an incredibly detailed and intrusive inquiry follows.
So remember how Trent Arsenault may actually be a legal parent–because the sperm isn’t transferred via a doctor? This is why it worries me. People who do not intend to have Arsenault as a legal parent may unwittingly find themselves in the position of the gay male couple here.
Beyond that, you can see how strong the preference for contact with legal parents is. The situation here is not ideal–the parties do not get along well. That’s why SH ends up with sole custody. But the girls will still spend quite a bit of time with AGR. I think it’s very likely that if AGR had not been found to be a legal parent, the amount of time she got to spend with the girls would be entirely up to their fathers. (While I think of it, I would imagine that DRH cannot now adopt the child and become a legal parent, which was the original plan.)
The second point is that the court considers the willingness of parties to work with the girls to come to terms with their origin as children born of surrogacy, raised by gay men and with multiracial heritage. It’s important to the court that SH will maintain a relationship with AGR and help the girls understand the role she played in their lives. As we’ve had all these discussions about honesty and what not (mostly in a slightly different context–that of use of third-party gametes) this resonates with me. It’s clear that SH (and presumably DRH) understands the importance of candor and the court recognizes that this is important. SH and DRH are comfortable being honest about the origins of their daughters and it is nice to see this recognized as an important (and a good) thing.