By Kate Coscarelli and Patty Paugh, Star Ledger Staff
The Star Ledger, NJ, March 13, 2003
Judge rules both women can have their names on birth certificate
Sometime soon, New Jersey for the first time will issue a birth certificate that lists two women as the parents when one of them has a baby.
In a ruling issued Tuesday, Superior Court Judge James Farber in Newton said both members of the lesbian couple can be listed as mothers and equal parents when their child is born.
The two Sussex County women, whose identities were sealed with the court records, are physically connected to the unborn child – one is carrying the child, who is due in May; the other woman provided the egg. An anonymous sperm donor is the father.
Because both women will legally be considered parents, there would be no custody questions if one should die. The ruling would also give the child automatic inheritance and government benefits rights.
The decision only applies to a narrow segment of the population that matches the same situation as these women, and other judges are not bound to follow it, said Melissa Brisman, the Park Ridge attorney who represented the women.
Neither woman could be reached for comment.
While conservative groups said they were looking into legal or legislative action to stop such practices, the decision was heralded by many in the legal community who said it is the most recent in a series of rulings nationwide that are redefining who is legally recognized as a parent.
“It’s a growing recognition of courts around the country and around the world that it is important for a child to have a legally recognized relationship with both people who bring them into the world with the intention of being their parents, even if they don’t have a biological connection to the child,” said Courtney Joslin, staff attorney at the National Center for Lesbian Rights in San Francisco.
A few states, such as California, Massachusetts, and Colorado, have issued birth certificates to same-sex parents.
The practice also is permitted in British Columbia. Same-sex parents have been recognized in several other states through adoptions or during custody proceedings, Joslin said.
Over the past year, several influential groups changed their positions to accommodate alternative families and same-sex couples.
The American law Institute and the National Conference of Commissioners on Uniform State Laws recommended more parenting rights to same-sex couples. Several leading professional organizations, including the American Academy of Pediatrics, also have issued position papers dealing with various issues relating to gay and lesbian families.
According to the 2000 U.S. Census, there are 594,000 same-sex couples in the United States, about 16,600 of whom live in New Jersey.
Legal groups have worked to address the issue of children and same-sex couples because most laws were designed to deal with heterosexual couples, said Katharine Bartlett, dean of Duke University School of Law, who worked on the American Law Institute project.
“Since the law is supposed to have answers to things that keep coming up, everyone is trying to fill in the vacuum,” she said.
New Jersey has issued birth certificates to same-sex couples since 1995, but only after one parent sought adoption, said Marilyn Riley, spokeswoman for the state Department of Health and Senior Services. Sperm donors are not listed on the document.
This case is different because the birth mother is carrying an egg donated by her partner, so both have a biological connection to the fetus, Riley said. “There was a genetic difference in this case,” she said.
Family policy groups in New Jersey, however, are not buying that argument.
John Tomicki, executive director of the League of American Families, said the judge’s decision defies human biology.
“How can two females be on the same birth certificate?” he asked.
Len Deo, president of the New Jersey Family Policy Council, said the judge’s action broadens rights that state lawmakers never conferred upon same-sex couples.
Deo accused the judge of “deciding something based on his interpretation of the law as opposed to clearly reading the law.”
The decision could create different classes of people whose names eventually might be permitted on birth certificates, he said.