Infertile Wife Held Not Parent of Husband's Surrogate Child

A New Jersey appeals court held recently in a ruling that harkens the landmark Baby M case that there is no constitutional or legal basis for recognizing an infertile wife as the mother of her husband's child born to a surrogate.  The court said it did not deny the "intrinsic societal worth, emotional appeal, and compelling logic" of granting parenthood to the infertile wife, but said adoption remains the means chosen by the Legislature to create that status. 

"Indeed, nothing in our Constitution or law provides that an adult - male or female - with no biological or gestational connection to a child has a fundamental right to create parentage by the most expeditious or convenient method possible," the court held.  The panel said its ruling, in Matter of the Parentage of a Child by T.J.S. and A.L.S., A-4784-09, flows directly from In re Baby M., 109 N.J. 396 (1988), which voided surrogacy-for-hire contracts and rejected an equal protection challenge to the New Jersey Parentage Act provision in question.

Prior to birth of the child, Husband [“H”] and Wife [“W”] sought a declaration of parentage under the Parentage Act from the family part and a pre-birth order that the birth certificate would list them as the child's parents and would prevent the surrogate from being named as the mother. [This is commonly done in states that permit surrogate contracts.]H & W deliberately rejected adoption because they wanted to avoid any lapse of time wherein the surrogate might change her mind about giving them the baby. Their complaint was accompanied by a consent from the gestational carrier to voluntary termination of her parental rights. The surrogate also relinquished all rights she might have to the child, which, by New Jersey statute cannot be waived until 72 hours have elapsed after birth.

The family part court entered the order and all went according to the plan. However, the Department of Health and Senior Services, Bureau of Vital Statistics and Registration (Bureau or State Registrar) took exception to this process, which circumvented New Jersey law. As a result, the State Registrar promptly file a motion to vacate the portion of the order directing A.L.S. to be listed as the mother on the child's birth certificate, which was granted by the trial court.
H & W raised a constitutional issue, which was rejected by the New Jersey appellate court. As a result, New Jersey residents planning a surrogate birth will have to plan on a step-parent adoption as the vehicle by which a child born to a gestational carrier.

The decision cannot be produced here because the record on appeal has been impounded.