October 24, 2012


The New Jersey Supreme Court has let stand a parental rights law that was challenged by a couple who said it unfairly favored infertile men over infertile women.

An infertile woman must formally adopt the child conceived from her husband’s sperm and carried by a surrogate mother using a donor egg. But under the same state law, an infertile man is legally considered the father of a child conceived when his wife is artificially inseminated with a donor’s sperm.

Advocates for infertile couples say they are disappointed with the decision, arguing that the law is fundamentally discriminatory. But an attorney who represents surrogate mothers says the law recognizes the essential distinction between the man and a woman who acts as a surrogate.

In the absence of a state law governing surrogacy agreements, New Jersey couples are going to other states that allow money to change hands, like Pennsylvania, to find a woman willing to carry another woman’s fertilized egg to term. These gestational carrier agreements, which include broker fees and medical expenses, are estimated to cost as much as $100,000.

Wednesday’s court decision is the latest case in what surrogacy advocates say will be a series of lawsuits as the state’s legal system tries to catch up with advances in medical technology.

And it was decided by a court that previously led in the nation in reproductive rights. The New Jersey Supreme Court was the first in the country to rule on the legality of contracts between infertile couples and surrogate mothers. In the landmark Baby M case in 1988, the court declared surrogacy contracts were unenforceable, but it still gave custody rights to the husband and wife, William and Elizabeth Stern, a Tenafly couple who were unable to conceive.

In that case, the Sterns contracted with Mary Beth Whitehead to be a surrogate. Whitehead signed a contract to give up the baby to the Sterns and then tried to renege on the agreement after the child was born.

In the Supreme Court decision published on Wednesday, the husband and wife — who were identified only as T.J.S. and A.L.S. — wanted to be the child’s legal parents, and unlike the case involving Baby M, the surrogate mother gave up her legal right to the child. But the state stepped in and blocked the wife from being listed as the child’s mother on the birth certificate, saying she had to first adopt the child.

The couple argued that the law violated the wife’s rights because, under the Parentage Act, an infertile husband would not formally have to adopt a child borne by his wife and conceived with a donor’s sperm. Laws that cannot be applied in a gender-neutral way must be struck down, the couple’s lawyers said.

The number of children born to gestational carriers — 1,448 nationally in 2010 — has nearly doubled since 2004, according to the Society for Assisted Reproductive Technology. Of those, 12 were in New Jersey. The data, however, do not include births in which donor eggs from a third party were used.

Melissa Brisman, a Montvale-based attorney who helps clients contact gestational carriers in states where agreements are allowed, has said she connects 200 or more couples with carriers a year.

In the Supreme Court’s rare 3-3 decision on Wednesday, Associate Justices Helen Hoens and Anne Patterson voted in favor of the Appellate Court’s holding. Chief Justice Stuart Rabner and Associate Justices Barry Albin and Jaynee LaVecchia opposed it. The tying vote was cast by Appellate Judge Dorothea O’C. Wefing,who was temporarily assigned to the Supreme Court at the time the case was argued. The seventh seat was vacant.

There are now two vacancies on the Supreme Court, which are currently being filled with temporary appointments. Democrats rejected two of Governor Christie’s nominees earlier this year, and he has yet to offer new candidates.

The three judges who agreed with the lower court’s decision said the state Legislature should be left to decide such delicate issues of parental rights.

“In the end, the question is not a constitutional one, but one that should be addressed, if at all, by the other branches of government, informed by a thorough and public debate of these profound and significant questions,” Hoens wrote.

The Legislature passed a bill this year that would have formalized the surrogacy relationship, making it legal for an infertile person to contract with and pay a gestational carrier.

Christie conditionally vetoed the legislation, saying surrogacy “unquestionably raises serious and significant issues” and calling for a study of it.

“I am not satisfied that these questions have been sufficiently studied by the Legislature at this time,” Christie wrote in his veto message.

Hoens wrote that the existing statute is not unlawfully discriminatory because a law that is based on real physical differences between men and women — which the state’s Parentage Act is, she said — does not automatically violate the constitution’s equal protection provision.

“If one recognizes that the Legislature could, and did, base its distinction between presumptive rights of men and women on the realities of our physiological differences, then those distinctions can and must survive a constitutional attack,” Hoens wrote.

The three Supreme Court justices who dissented, though, said the state law was discriminatory by differentiating between husbands and wives.

“Despite the obvious anatomical and physiological differences between the infertile husband and wife, once a surrogate knowingly and voluntarily surrenders her parental rights, their situations are not meaningfully different,” Albin wrote for the dissent. One attorney who represents surrogates said he found it “astounding” that three justices found the state law discriminatory.

“A woman who carries a child for nine months and then gives birth is not similarly situated to a man who donates sperm,” attorney Harold Cassidy said.

Brisman, one of the attorneys for the couple, said she was happy three justices sided with the couple.

“You just have to keep trying, and eventually, I think, the court and the system will come around,” she said. “There’s discrimination in all forms. Sometimes the wheels of justice take longer than you’d like.”

A Haddonfield attorney, Donald Cofsky, president-elect of the American Academy of Adoption Attorneys, said he was disappointed with the outcome, but there were still bright spots.

“They have not said that gestational carrier relationships in New Jersey are per se illegal. They’ve clarified from Baby M that you can do this stuff, you can do gestational carriers,” he said.

But Cassidy, the surrogate mother advocate, said he was upset surrogate mothers were not represented on any side of the arguments before the court, and he was worried they may not be considered in future legislation, either.

“You can’t discuss these issues in a vacuum like it’s an academic discussion,” he said. “These are real people.”