Legal adventures 3: NJ surrogacy case dashes mother's hopes

Michael Cook
3 Nov 2012
Reproduced with Permission

A deadlocked New Jersey Supreme Court has denied the "constitutional right" of a woman to place her name on a birth certificate instead of a surrogate mother's. As the six justices were divided, there has been no change in the law, but the case, In the Matter of the Parentage of a Child by T.J.S. and A.L.S., is more evidence of the confused state of American laws on surrogacy.

The commissioning parents, known as TJS and ALS, had attempted to take the safest possible legal route to parentage. An embryo created with the father's sperm and a donated egg was placed in the womb of "gestational carrier" AF. At first things went smoothly and the baby was handed over. However, the state objected to placing ALS's name on the birth certificate as the mother. Her only remedy was adoption, even though TJS was deemed the father.

The justices who upheld the "plain language" of the statute, contended that this was a matter for the legislature, not the courts. They also said that it would discriminate against other infertile women who wanted to adopt but who could not afford expensive reproductive technology if they were to affirm her as the mother.

ALS will now begin the legal procedures needed to adopt the child she has been raising for three years.

The New York Times report on the case points out that "gestational surrogacy" is a fast-growing industry in the US,

"… reflecting the desperation of many would-be parents to have children, as well as an increased difficulty of foreign adoptions, and same-sex couples seeking to create families. The Society for Assisted Reproductive Technologies says that about 1,100 children are born of gestational surrogacies each year, but lawyers who work to arrange them say that they believe the numbers are far higher, and have become more mainstream as well-known people like Sarah Jessica Parker and Mitt Romney's eldest son, Tagg, have spoken publicly of using surrogates."