02 Apr Parental Rights for Unrelated Spouses
For over 35 years, surrogacy has grown as a method for couples with infertility issues or other health risks, same-sex couples, and single parents to have biological children with the aid of a third party who carries the child. Legislation under consideration by the New Jersey state legislature, as a result of a recent state Supreme Court case, would help establish parental rights for infertile men or women who become parents via surrogacy.
In the New Jersey case, a childless couple contracted a local attorney, who helped them secure a Family Court prebirth order from Camden County Superior Court Judge Charles Dortch. The prebirth order allowed both the husband (sperm donor) and his infertile wife to be listed as parents on their child’s birth certificate immediately after the surrogate delivered. However, the order didn’t hold. The state’s Registrar, who records birth certificates, persuaded Dortch to vacate the order, pointing out the wife didn’t meet legal standards to claim parentage. The Registrar recommended the couple adopt their baby instead.
The public attention resulting from the case resulted in the drafting of A-2646, the New Jersey Gestational Carrier Agreement Act, which passed out of the Assembly Human Services Committee on March 8. The intent of the bill is to unravel an Appellate Division’s decision to grant rights of parentage only to females who have a biological relationship to the child. This Act declares a standard for gestational carrier agreements acknowledging recent technological advances in reproductive medicine and new trends in family formation.
According to David Gialanella, author for the New Jersey Law Journal, “The Appellate Division affirmed, saying the Parentage Act's gender-based distinctions had a rational basis and were grounded in ‘actual reproductive and biological differences’ that in the case of an infertile wife, necessitated ‘the introduction of a birth mother whom the law cloaks with superior protection.’ ”
The New Jersey Gestational Carrier Agreement Act would streamline the process for both intended parents and surrogates, allowing intended mothers who are infertile to claim full parental rights for their child at birth and eliminating the need for costly adoption. Many states have enacted similar legislation; for example, the Illinois Gestational Surrogacy Act and the California Uniform Parentage Act. For more information about the many approaches to parentage in the United States, see my article written for the American Journal of Fertility Law, Advising “Non-Traditional Families” in Multi-Jurisdictional Surrogacy Arrangements.