There’s a new surrogacy case from NJ. To be really precise, there are two opinions from the New Jersey Supreme Court which deadlocked 3-3. Since neither view garnered a majority of the votes the lower courts decision is affirmed. If you don’t want to read the actual opinions, there’s decent coverage of the story in the New York Times. You can see this as expanding the discussion from UK law discussed in the last post. I think there’s been mention the NJ case in the comments from the last post, but I haven’t actually had time to really look and it’s worth raising to the status of a full post anyway.
Fairly simple facts: TJS and ALS are husband and wife. ALS could neither produce eggs nor carry a pregnancy to term. Using sperm from TJS and an egg from an anonymous provider, TJS and ALS had an embryo created. The embryo was then transferred into the uterus of AF who agreed to act as a surrogate and who eventually gave birth to a healthy child. She subsequently surrendered any parental rights she might have. (That means this is not a case of surrogacy gone bad, for what that is worth.)
Before the child was born, TJS and ALS sought a court order adjuding them legal parents of the child. This was keyed to AF agreeing to the after-birth termination of any rights she might have. While the lower court initially granted the order sought, in the end the court’s rejected the request and this rejection was affirmed by an equally divided state supreme court. This means that the only way for ALS to become a legal parent to the child is via adoption. This is true even though AF did indeed renounce her rights as had been planned all along which means that right now the child only has one legal parent–TJS.
To understand this let me go back a bit. New Jersey’s Supreme Court authored what is doubtless the most famous court opinion on surrogacy in the US–Baby M. In that case the Court determined that the legal mother of a child conceived through an arrangement where the woman serving as surrogate uses her own gametes is the surrogate. This means that to become a legal parent the intended mother had to adopt the child, which wasn’t possible in Baby M since the surrogate would not surrender her rights.
As a result of Baby M, gestational surrogacy became the most common form of surrogacy through the US. After all, the whole idea behind surrogacy is that the surrogate will not be the legal mother. This shift happened even though Baby M is only binding law in NJ. And as I understand NJ law, if a female intended parent provides the egg used in surrogacy than she is the legal mother of the resulting child, just as a male intended parent who provides the sperm is the legal father.
But this isn’t what happened in the present case. In the present case the intended mother (ALS) did not provide the egg. She is not genetically related to the child and neither is AF, the surrogate.
ALS made a simple argument that given principles of equal protection she is nevertheless entitled to be considered the legal mother of the child. After all, when a wife uses third party sperm to become pregnant because her husband is infertile, he is considered to be the legal father of the child. The absence of a genetic relationship with the husband/intended father doesn’t matter.
If we are committed to equal treatment for infertile people, whether they be male or female, then the absence of a genetic relationship with the wife/intended mother shouldn’t matter either. She should be entitled to the same treatment a man should recieve and should be considered the legal mother of the child. Otherwise you are treating infertile women less favorably than infertile men.
To put this slightly differently, (still making the wife’s argument) consider what happens when a married heterosexual couple uses third-party gametes. The man in this couple will not need to adopt the child if what was used was third-party sperm but the woman will need to adopt the child if what was used was third-party eggs. This is not similar treatment.
Three members of the NJ Court accepted this view, but three others disagreed. From their point of view, what ALS wanted to do here was basically an end-run around adoption. Ordinarily if ALS had wanted to become a legal parent of a child another woman gave birth to, she’d have to adopt. That’s true even if the woman who gives birth is a surrogate (see Baby M.) ALS is trying to avoid adoption by going through the intricacies of gestational surrogacy. ALS has no greater claim to be a legal mother than did the intended mother in Baby M.
ALS is not in the same position as the infertile man, above, because in his case there is no one in the position of the surrogate. Men and women are, in this regard, different. While the legislature could set up a system that works as ALS wants it to, she has no right to that system by virtue of equal protection.
There’s a lot to think about here and doubtless many other ways to think about the issues raised here, but I’ve gone on long enough. I’m sure it surprises no one that I have my own thoughts and judgments about who got this right or how it should be decided, but before I get to that I need to think a bit more.
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Basically it seems that ALS is attempting to claim the marital presumption for herself. Since the marital presumption is based on odds grounded in biological differences, I do not see men and women as being similarly situated and therefore I do not find it discriminatory that it is not applied to her as a woman.
However ANYTHING is better than ruling that a child has no mother. This sets a dangerous precedent to rule that a child has no kin at all. Completely disconnected to any other human being on earth. Unfortunately, again because of biology, there have been children with no identifiable father throughout history. However there has always been a mother.
In my own mind I’ve established a hierarchy for motherhood as follows: genetic mother, then gestational carrier. But if New Jersey does not want to go in that direction than Spouse of other Legal Parent is still a better option than no one at all.
The Spouse of the Legal Parent (the Intended Father) is the Intended Mother.
This is a slam dunk adoption case that nobody will contest and the child is already living with the biological father and the wife. The State of New Jersey will then issue a new birth certificate with the Mothers name on it so why are the extra steps needed? It just makes the process more expensive and time consuming.
How does this delay, because that’s all it is, serve the best interest of the child?
It’s problematic because it attempts to change the whole system by applying the marital presumption to women. That could affect huge number of all sorts of different families.
However I do credit New Jersey for not falling into the California trap of asserting parentage on the basis of a financial contract.
This just goes to show you why surrogacy isn’t such a great idea; no matter how you slice it you end up having to compromise on one principle or another.
All this says is that they need to spend more money and go out of State or more money to an adoption lawyer.
Just stating in this region of the US, the Intended Father and Intended Mother can be named on a Pre-Birth Order in this situation in Connecticut, Maine, Massachusetts, Vermont, Rhode Island, Delaware, Virginia, Pennsylvania, Ohio, Michigan, West Virginia, and Kentucky.
There are varying laws per State on if compensation is allowed for the Surrogate, but they all allow for altruistic Surrogacy and BOTH Intended Parents name to go on the Birth Certificate.
This changes nothing for the Surrogate or Egg Donor in the New Jersey ruling.
The only winner is the Lawyers who now get to make an extra $5,000 to file a slam dunk adoption.
No the winner is the child because they are respected the truth was respected everyone wins in this case nobody was robbed by having a big old fat lie printed on their birth record. Why does this guys wife deserve the title of mother without having to adopt? Is she so special? Why do we even bother with adoption or step parent adoption? Lets just have all child custody and parentage be decided by who paid who. Then fat greasy slimy profiteering Business people can make more money treating human beings like dolls
Do you know that not one State outlaws altruistic Surrogacy? Not even New Jersey, New York, or Michigan.
Do you mean adoption they don’t outlaw adoption? These sleazy little contracts for human life ought to never be enforced by the courts. I’ve met some people whose mothers were surrogates and they are a wreck. Not that everyone will process it that way but you’d have to be numb to not feel like crap that your parents would do such a thing to you for no good reason at all.
it would be needless if the woman were related to the child but if they don’t handle it as an adoption the child’s records will falsely reflect the intended mother as the mother. Motherhood is not something you get because you paid or are even judged worthy its something you are by being related. People that put their names on birth certificates of children they are not ralated to are liars
this is an interesting way to think about it. If you know where you are going and could get there via adoption, why not write in a short cut?
I don’t know for sure but my thought here is that if there is any flaw in the logic here it lies in focussing on the specific case. It’s true that we know that this child will end up with these adults as legal parents. Why not just get there immediately? It would make more sense for this child and these parents. But however we resolve this case does not only apply to this child and these parents. The way law (at least usually) works, you have to articulate a rule that then applies generally. this, it seems to me, is the key difference between a system of law and a system of ad hoc decision making.
So you have to ask what kind of general rule would get to where you want to do? A rule that favors intended parents would, that’s clear. (Probably there are other possible rules as well.) But this rule (or these rules) would then be applied in a host of other cases, including some that might include some greater conflict than is present here. And in prudence, I think we have to think about how we’d feel about the rules applying generally before we can opt for what is, in this case, the easy, even obvious, solution.
Ki what is wrong with a ruling that acknowledges the truth? This child’s mother is unknown. It’s the truth. What is wrong with recording the truth. It is not better to just be assigned one at random without a proper adoption.
I see that elsewhere, Rebecca wrote that the biological mother would have been considered the legal mother; expect that she had relinquished her rights before all these proceedings took place. If this is the case I am cool with the outcome.
Yes, the woman that gave birth to the child (but did not provide the egg) signed papers after X amount of days/hours (whatever is the wait time in that state) giving up all parental rights. Since a previous NJ Supreme Court ruling found that a woman who gave birth to twins in a surrogacy arrangment using anonymous donor eggs who did not sign away her rights to the children was the legal mother, presumably that would have been the result here as well had she not signed consent to terminational of parental rights after x hours/days (whatever the waiting time is in that state).
Just a little terminology note—“the biological mother”–what do we all mean when we say that? Is the genetic mother a biological mother? The woman who gives birth? Both? (I’d personally go for both.) I just think we need to make sure we all mean the same things with this phrase.
Biology and genetics are not separable. It is not possible to be a genetic mother if your not also the biological mother because your genes are only shared through the sharing of your biology with your offspring.
The American Society for Reproductive Medicine, the American Medical Association and the Society for Reproductive Technology all state that the biological mother is the woman from whose egg the child originated. They refer to the woman who delivers as birth mother of record. legal birth mother.
Unless you feel qualified to redefine well established terminology in order that you can give the impression of something that is not true and then stand on technicality when busted in a lie as many gestational carrying legal mothers do these days. Some of them go with the approach that it was there egg once they bought it, therefore it is their genes and their biology rather than that of the donor who gave up that right to both biological and legal recognition as the mother of their offspring once born. They believe they reproduce and they conceived since its their egg
There are four judges in New Jersey that are calling the Surrogate the Biological Mother:
JUSTICE HOENS, CONCURRING, joined by JUSTICE PATTERSON and JUDGE WEFING (temporarily assigned), would affirm largely for the reasons set forth in the Appellate Division opinion. In her view, the Act makes plain that the child is genetically the child of the anonymous ovum donor and biologically the child of A.F., who carried the child to term and gave birth.
why have an even number of justices ruling? wouldn’t an odd number be more definitive?
If memory serves me correct, I think there’s a vacancy on the court at the moment. When filled, that person will bring the total to 7, yielding an odd number.
Going back to my original argument about terminology; Wikipedia on Baby M states “According to later terminology, Mary Beth would be considered a traditional surrogate, as opposed to a gestational surrogate, because she was the genetic mother of the child. At the time, the technology for gestational surrogacy was not yet in common use.”
No kidding.
I know this is the use of language you recently objected to. Baby M is a huge part of why (in the US) surrogates are generally gestational surrogates. I’m not at all convinced that this is a good thing and indeed, from my theoretical point of view it’s clearly a bad thing–it is insistence on the primacy of genetic relationships that makes gestational surrogacy popular. Baby M (and what follows) leaves us with the need to distinguish between surrogacy where the pregnant woman is genetically related to the child she carries and surrogacy where she is not.
We are well of your insistence that the idea of genetic connection is outdated and must be removed from people’s hearts and minds by legal force if need be. The fact that this flies in the face of most people’s real-life experience (including Mary Jo’s) (that which you claim to value as long as it involves a connection with a non-genetic parent) means nothing to you. We know that.
I’ve been reviewing informally the status of so-called “traditional surrogacy” Unfortunately actual scientific data is hard to come by but it seems that nationwide surrogacy agencies, lawyers, even one website that actually advocates it, all agree that so-called “traditional surrogates” are more likely to bond to the baby, whether to the point of refusing to surrendur the baby, or simply to expect pictures and updates as to the child’s welfare (like many parents who surrendur a child to adoption). Clients are “warned” of this possibility.
The dualistic formation that if pregnancy is important than genetics isn’t; and vice versa, is not reflective of reality.
As it stands, New Jersey law fails to differentiate between a gestational carrier and a woman pregnant with her own child (I heard this referred to elsewhere as a partial surrogate which is more palatable to me). This being the case, they must give the upper hand to the pregnant woman.
That’s interesting and surprising. The Baby M situation is a lesson learned to anybody who needs medical help conceiving a child. I have the opposite opinion — that prospective parents who need surrogacy should never use the egg of the surrogate. Motherhood is socially constructed in the 21st century U.S., and genetics are a big part of why people may develop attachment to the infant.
I have to say, anybody who asks a surrogate to use her own egg is, well, risking heartbreak for all of the involved adults. Think about it: a surrogate who is using someone else’s eggs does not think of it as her child. When she talks about the pregnancy with her kin, they do not see the prospective new life as their prospective kin. They do not get invested for 9 months. Using her own egg causes a lot of confusion and risks custody fights that are not in the best in interest of the child. (And custody fights are usually stressful, expensive and traumatic for the adults involved.)
For the most part I agree and for the most part I think there is a preference (esp in the US) for gestational surrogacy–which is to say you don’t use the surrogate’s egg. (When the surrogate uses her own egg it is sometimes referred to as traditional surrogacy.) But I’d add a couple of caveats.
1. There are women who are surrogates who use their own eggs and do not think to the child as their own child. In other words, they work it through and it is fine. It can be done.
2. I generally support surrogacy and think women should be allowed to be surrogates and should be paid for it. From the point of view of woman thinking about being a surrogate, it is physically easier and less dangerous to be a traditional surrogate.
3. While I agree with you about how the genetic connection operates in society, I don’t like it. I look for places to resist it. Treating all surrogates the same is one way of doing that. I would prefer not to structure the law here so that it places great value on the genetic link. (It’s still crucial to do proper counseling to identify women who can be surrogates and to discern what kinds of surrogacy is best for them.)
1) We agree here. I would note that the first disputed surrogate case came out of a traditional surrogacy and using another woman’s egg helps to decrease custody disputes, and, perhaps, emotional pain/attachment due to the current construction of mother.
2) As a side note – I’m not sure it’s clear that it’s less dangerous as medical transfers are not necessary with the new freezing techniques. Specialists may want to use the medical transfer to increase chance of implantation. The actual transfer of the embryo would be a similar physical experience as the transfer of sperm. (Sperm may even open more risk of disease transfer then the transfer of an embryo.) I’d note transfers are quickly moving towards frozen transfers as studies are increasingly showing a similar rate of pregnancy between fresh/frozen. But I take your point that someone, who does not care about using their own egg, may wish to simply try to use sperm in an IUI.
The embryo transfer has a much higher percentage of implantation rate then a simple IUI, which is the transfer of sperm. An IUI causes pregnancy in about 5-10% of the time while a healthy embryo from a healthy young woman will implant about 50-80% of the time (depending on the quality of the lab/ quality of the sperm/ specialist/experience with transfer techniques.) Embryos can be further tested for abnormalities, which reduces the changes of miscarriages and raises implantation rates.
3) We agree about genetics, disagree about the legal remedy in this specific case. I’m concerned that another legal harm may occur out of the situation that reduces the human right/power of intent to form families.
An interesting book that speculates about a different way to think about fatherhood outside of the genetic connection is Kate Elliot’s Jaran. I’ve thought this would be an interesting book for students to read to talk about the social construction of parenthood.
Frankly this case is alarming from the standpoint that a judge declares two people to be the parents and then the State, acting as big brother after being tipped off by a nosy hospital worker – most likely with an agenda, steps in and contests the parentage of one parent. The State should be ensuring that each child has two parents, not suing to revoke parentage.
Absolutely vile behavior on the part of the State and really a very frightening thing. These two parents would have been better off to lie and say the egg was hers. But, Christie appears to be showing just how far he’s willing to use the power of big government to invade people’s personal lives. In the end, this woman will most likely adopt the child and be listed as the mother on the birth certificate. So the end result will be the same BUT the state now has a precedent for justifying acting as Big Brother & interfering in people’s private affairs. So much for limited government.
The state should be ensuring that each child has their two parents who created then not some creepy people who bought a baby
They didn’t buy a baby so your comment doesn’t apply to this situation.
The genetic Father wants his wife to be the legal parent.
What a Monster!!! Let’s throw them both in Jail for 3 years, fine them $300,000, and place the child in the foster care system. That will teach them.
I understand thats what he wanted but her body did not cooperate and he made a child with someone else. What’s wrong with having her fullfill her roll as her child’s mother. The fact that she may not feel like it is not her child’s fault the least she could do is be named on the child’s birth record. Make sure her child is known to all her relatives so that her child can keep in touch with them after she relinquishes her child for adoption. What is wrong with his wife being what she is which is a step mother? By assuming the roll of actual mother she has to participate in the destruction of thee family of her husband’s child. If she were just the step mother she could know her hands were cleana ant that she had nothing to do with the decision her husband and the genetic mother came to. His wife does not want to be in the position where she had anything to do with wanting the child not to be raised by the bio mother and family.
No lets make the biological parents cooperate for the child’s benefit why can’t the wife just be the step mother that she is instead of pretending to be the child’s mother? Then the child has to live their whole life playing a roll to satisfy the mother’s enormous ego in some picket fence junior high day dream where she gets married and has her husband’s kids. She did not have her husband’s kids and it is twisted to make everyone act like their hers! It’s bad enough their genetic mother does not care enough to be raising them but to be forced to live as if someone else is your mom when she’s not makes the kid a puppet.
its fraud
I actually think this is a good point. As I said at the start–this is a case where everyone agreed and things went smoothly. Then someone decided it looked different from what they were used to. The problem with this, for me, is that it is always alternative family forms that will bear the brunt of the “this looks strange” reaction. I think, for example, this is why even when same-sex domestic partners have the legal entitlement to be in a hospital room they are sometimes kept away–because someone thinks it out-of-the ordinary.
This isn’t an argument about policy and how parentage should be defined. I just appreciate Tyson’s point about the underlying facts here.
Why can’t she go through the normal process of adoption if she wants rights? Why should that child not be protected by the adoption process? Is something wrong with that child other kids deserve the checing process to vet instances of child trafficking but not this kid?
She shouldn’t have to because a trial judge already declared her a mother. Allowing the State to interfere and undermine this parenting relationship is disturbing. This isn’t a case where someone was contesting parentage & the court needed to decide who was the legal parent. All relevant parties were satisfied. A busybody clerk (most likely with an agenda) kicked off a process that allowed a meddling Governor to strip a child of a parent.
all parties satisfied? what about the kid with the fake birth record and the phoney mother?! I hardly call that all parties satisfied. Why should some woman be able to do this? She is not their mother she is not related to them. If she wants to be a mother to an unrelated child adopt. Or is adoption pointless now forget it those checks are of no use to anyone
Marilyn–your objection to the birth certificate is entirely consistent with the objections you raise in all the adoption cases we talk about, right? I do wish you’d stop using language like “fake” and stick with ‘inaccurate” or “misleading.” Same thing with “phony mother.” The woman you refer to here will be (sooner or later–perhaps after an adoption) the legal mother of this child. She will not be genetically related to her child. This does not make her a phony mother.
I gather you would like her to go through the process of adoption? I assume, however, that you would like the man in the analagous position to do the same thing? Thus, I think you essentially accept her equal protection argument (that men and women should be treated similarly) but would treat them both as adoptive parents? That’s an important thing to note.
The child’s satisfaction is irrelevant. We don’t consider the child’s satisfaction when we allow parents to make decisions regarding circumcision or vaccination. The same applies to establishing legal parentage. Therefore, yes, all parties were satisfied and everything was settled until the State inserted itself in a private family matter.
what’s wrong with officials reviewing records to see if everything was done legally? and how exactly does a clerk actually overturn a judge?
It was reviewed by officials – a judge. The clerk didn’t overturn the Judge’s decision. Christie’s passion for big government led him to use the power of Big Government to needlessly become involved in a matter that had already been legally decided & was not being contested by anyone. That’s when the lower court got overruled. This was never a custody dispute. It was simply a nosy clerk with an agenda who got the State to step in & harrass people. Needlessly. Because the end result will still be a birth certificate with the mother’s name on it.
Kudos to that hospital worker for not overlooking something she found suspicious, and reporting it to the state. Mind your own business? That’s her job for heaven’s sake. To me that shows conscientiousness. Would you have said something otherwise regarding any other regulation?
In fact the hospital worker was correct- the pre-birth orders signed by a judge were considered illegal by the attorney general’s office and they sued- legally. this is all legal.
You may have wished for everything to proceed under the radar but the fact that you don’t like the outcome doesn’t mean the law shouldn’t be followed in general.
That’s not her job. Her job is to follow a court order. She most likely had a bias and wanted to make the parents squirm. The hospital should fire her. Frankly, I hope the parents can establish a claim against the hospital worker and the hospital.
The idea that is isn’t a hospital worker’s job- or anyone’s job- to report something they find suspicious to the appropriate authorities is absurd. That’s completely ridiculous. Since no one did anything negligent, violated any procedure, and she turned out to have reported correctly according the the state’s view, there really are no grounds for a lawsuit.
Even if the person reporting turned out to be mistaken in her assessment, and everything was fine and in order, she would still be protected by whistleblower laws.
Suppose there are hospital workers who find same-sex couples “suspicious.” (I am quite sure they are.) They cannot deny them rights that the law grants based on their personal views. And yet they do. I think that’s a problem (and it is not my expectation that you disagree on this front, though I do not know.) The fact that this problem recurrs makes me wary of granted too much power to hospital workers to exercise their own discretion.
I understand that you may say that’s not what is going on here–and I don’t pretend to know. But it is something that worries me.
the article says she reported it to the state authorities.
This ruling really makes me thankful to live in California.
We have Surrogacy laws and Adoption laws and they each have their own legal process.
Under the Surrogacy laws the Intended Parents have to file documents with the court and be approved by the judge to have their names placed on the birth certificate with the original documents being sealed.
Under adoption law the parents have to file documents with the court and be approved by the judge to have their names placed on the birth certificate with the original documents being sealed.
The process looks a lot alike to me. The only thing this ruling changed is how the paperwork is processed and how much the parents need to pay in legal fees.
You make money every time a person has their identity robbed and every time a family is separated by a donor. As important as your daughter is to you is as important as all kids should be to both thier biological parents and if you think having that kind of attention from only 1 bio parent is all your clients children deserve how cruel is that?
Biology is overrated & there’s absolutely no conclusive studies that show these children are harmed in any way. To think they’re being robbed of anything is pure conjecture.
In this particular case maybe not. But when establishing the law you have to think about its effect on society in general. The idea that children’s kinship can be determined by contract law like property is very frightening. The spectre of widespread renting of women’s bodies is also frightening.
Again, there is no evidence of harm. It’s pure conjecture by people with a bias.
Mary Jo Whitehead and Melissa Stern weren’t harmed?
Out of the last 30 years you can name two people? And they are from the same case.
Let’s outlaw things that harm people.
No vaccines, airplanes, cars, trains, alcohol, or tobacco.
Let’s make signing up for the Army, Navy, or Marines illegal since clearly we should protect people from harms way.
Not everyone should be a Surrogate. It’s a small segment of the population. But, they should be allowed to make their own choice.
glad you agree it’s a small segment of the population. But law is a generalization that should follow the majority.
I couldn’t disagree more. The law should follow the majority? So gay people shouldn’t be allowed to marry because they’re not the majority? While the incidence of out of wedlock births has skyrocketed to alarmingly high levels, the majority of children are born to married parents. Should we set the law to favor children born to married parents at the expense of children born to single women since married parents are the majority? If I recall we used to do this in terms of illegitimate children being blocked from inheritance and other rights. Shall we return to those days since the law should follow the majority – parents who are married?
THIS woman wasn’t harmed?
http://abcnews.go.com/Health/surrogate-mother-suffers-heart-damage-giving-birth-children/story?id=13028197#.UI4LYYLES9s
I am not adding her to for numbers sake but to demonstrate a different type of harm caused than our usual discussions of kinship.
The Surrogate says “she would do it all again” and she lives in a State where is legal.
An Adult making and Adult decision.
Let’s outlaw Sky Diving, Racing, Nail Salons, and Tanning beds because people that engage in these activities can be harmed.
Many laws are designed to protect the minority from the majority so that we can have individual freedoms.
This ruling also shows that a nosy hospital worker who thinks she’s above the law & doesn’t need to follow a court order can cause you a great deal of grief. I would never use that hospital. Who knows what other axes its employees have to grind, leading them to ignore other court orders.
Thank goodness for nosy hospital workers. Nobody else is looking out for this person’s right to an accurate health record and an accurate identity.
That’s not the hospital worker’s decision. Would you like her making decisions for you?
In this case, it was Vital records making the challenge and it is their job to verify that the Birth Certificates are completed within the States laws.
After a birth certificate that complied with the court’s order was issued, the Department of Health and Human Services, Bureau of Vital Statistics filed a motion seeking to have the court vacate its order. The Department, which had not been afforded notice of plaintiffs’ application, contended that there was no basis in the applicable statutes for the relief that plaintiffs had requested from the court.
“Despite the obvious anatomical and physiological differences between the infertile husband and wife, once a surrogate knowingly and voluntarily surrenders her parental rights, their situations are not meaningfully different.” Justice Barry Albin, New Jersey Supreme Court