Once again, court finds 'mom' isn't simple word
By Leslie Brody, Staff Writer, World Wide Infertility Network, March 29, 2000

If an infertile woman has her egg implanted in another woman to carry to term for her, who is the official mother?

That's the thorny question Judge Ellen J. Koblitz, presiding judge in family court in Bergen County, grappled with Tuesday. Her decision: Give the woman carrying the baby three days after delivery to make sure she's comfortable following through with the surrogacy agreement, then allow the genetic mother to have her name on the birth certificate.

That certificate was at the core of a disagreement between the state and the intended parents, whose names were kept confidential. The state argued that the woman carrying the child is the "birth mother" and that state law requires she be given three days to make sure she wants to surrender the child. Doctors usually sign birth certificates immediately.

But the intended parents -- and the woman who carried the baby -- sought a court order stating the genetic mother's name be the official one even before the birth.

That name matters when it comes to medical insurance, the mother's feelings of legitimacy, and the baby's future sense of identity, said the genetic parents.

The North Jersey couple created an embryo using their egg and sperm and had it implanted in the wife's sister, who wanted to help them. She expects to give birth at Englewood Hospital and Medical Center next month.

The couple's lawyer, Melissa Brisman of Ridgewood, said if the genetic mother's name did not appear on the birth certificate, she would have to adopt the child legally, often an expensive, time-consuming, and emotionally draining process.  

"The genetic parents feel this is their child, their biological baby in somebody else's womb for nine months," and they want its parentage declared before birth, Brisman said.  

Deputy Attorney General Susan Slaff, representing the state Division of Youth and Family Services, argued that by state law, a birth mother must have a three-day waiting period before she can sign away her parental rights, so there should be no pre-birth decisions that could hurt her claim. Koblitz expressed some support for both sides. "One way to look at it is there are two legal mothers," she said. "Why would the gestational mother have precedence over the biological mother? This is not simple."

Koblitz said she was not comfortable creating a precedent for a pre-birth maternity order in New Jersey, although some states have endorsed them. Instead, Koblitz said, she will instruct the gestational mother's doctor to hold off on creating a birth certificate for three days. If the gestational mother does not change her mind by then, she can formally surrender her rights, the original birth certificate will carry only the genetic parents' names, and there will be no need for an adoption.

"You can't anticipate what you'll feel like after you have the baby," Koblitz said.

A similar case also before Koblitz has its own unique circumstances. The bureaucratic dispute has dragged on for so long, due to court delays, that twins born more than a year ago still have no birth certificates. That means they can't get Social Security numbers or passports, and their parents
cannot get tax deductions.

"These children were not born, except in reality," Koblitz said, shaking her head at the quirk.

In the twins' case, a California couple used the husband's sperm and a donated egg to impregnate the man's sister, who agreed to act as the couple's gestational carrier. The couple had a pre-birth order from Orange County, Calif., saying the couple's names should go on the birth certificate, but the sister delivered the baby unexpectedly at Holy Name Hospital in Teaneck.

According to court papers, the hospital and New Jersey Bureau of Vital Statistics would not list the couple as the legal parents without a New Jersey court order. The gestational carrier has been adamant that she be kept off the certificate lest it appear she had a sexual relationship with
her brother.

"Why should the birth certificate reflect the insinuation that the sister and brother committed a crime?" asked Brisman, who specializes in gestational carrier arrangements and represents the California couple.  

Brisman herself has 2-year-old twins by a gestational carrier. She argues that in such arrangements, the carrier has no genetic tie to the baby and so has no parental rights. In medical parlance, the carrier is simply the "host uterus," she said.  

Several states, including Maine, Massachusetts, Texas, and Pennsylvania, have created court procedures that let genetic parents be listed on birth certificates of children born to gestational carriers.

Those states are responding to a surge in the use of gestational carriers in the past three years due to scientific advances, according to the American Surrogacy Center in Marietta, Ga. There is no official enumeration of such births, however.

Gestational carriers differ from traditional surrogates in that they have no genetic ties to the babies they carry. Traditional surrogates, such as Mary Beth Whitehead Gould in the "Baby M" custody case, conceived using their own eggs. Gestational surrogacy is increasingly popular because prospective parents think there is less risk that the pregnant woman will change her mind about giving them the baby.

In the Baby M case, the New Jersey Supreme Court ruled in 1988 that it was illegal to pay a woman to surrender her parental rights to her genetic child, and that a woman could not sign away her parental rights before giving birth. The court likened commercial surrogacy contracts to "baby selling," and declared them invalid.

It is legal for a woman in New Jersey to carry a child for another woman, but she can't be compensated for her efforts. Further, if the surrogate changes her mind soon after the birth and wants to keep the child, she can seek custody or visitation in court. The judge would have to decide the case based on the best interest of the child.

Brisman says that among traditional surrogates, less than a quarter of 1 percent change their minds and sue for custody.  

Copyright © 2000 Bergen Record Corp.