Surrogacy in NJ–A Study in Contrast

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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