LEGAL VIEW: Is infertile wife parent of husband's child?

By Pat Murphy The Daily Record Newswire Since artificial insemination has been around since the 1970s, you'd think that by now states would have figured out all of the basic parentage issues that the science presents. So it was sorta surprising that a New Jersey court last week had to decide the rather fundamental question of whether an infertile wife is the legal mother of her husband's biological child, born to a gestational carrier. The husband and wife in In re T.J.S. are understandably not identified by name in the court's decision. The couple ("plaintiffs") could not have a baby on their own because the wife could not carry a child to term. To solve this common enough problem, the plaintiffs arranged for the in vitro fertilization of an ovum furnished by an anonymous donor using the sperm of the husband. To complete the process, the plaintiffs entered into a surrogacy agreement with a woman, A.F., who consented to act as the gestational carrier. Like all parents with a child on the way, the plaintiffs had a busy time getting the kid's bedroom ready, finding a crib with all the bells and whistles, and, of course, buying stupid toys that will never be played with but look cool to the dad nonetheless. Apart from this fun stuff, the plaintiffs wanted to get the mundane task of having their child's legal status squared away before his birth. To accomplish this, the plaintiffs filed a petition for a declaration of parentage under the New Jersey Parentage Act. The plaintiffs wanted the state's family court to issue a pre-birth order directing that their names be listed on the birth certificate as the child's parents and preventing A.F. from being named as the mother. The plaintiffs understandably wanted to avoid the lengthy adoption process which would have placed the legal status of the child in limbo. The trial court granted the plaintiffs' petition, ordering that a birth certificate be placed on file for this child to reflect the plaintiffs as parents, provided that A.F., the gestational carrier, surrender her rights to the child 72 hours after giving birth. The child, T.D.S., was born on July 7, 2009, and A.F. fulfilled her side of the bargain by relinquishing all parental rights. But then the state bureaucracy caught up with what was going on. The state registrar learned of the pre-birth order and moved to vacate the portion of the order directing the wife to be listed as the mother on the child's birth certificate. Faced with a contest by the state, the trial court reversed itself and concluded that the New Jersey Parentage Act did not authorize the wife being declared the child's mother through a pre-birth order. Last week, the New Jersey Appellate Division affirmed that decision. Construing the state's parentage law was fairly straightforward for the appeals court, with even the plaintiffs agreeing that the statute did not expressly authorize the pre-birth order in this case. The court concluded that "the plain language of the Act provides for a declaration of maternity only to a biologically or gestationally-related female and requires adoption to render [the wife] the mother of T.D.S. No alternative construction is plausible and nowhere in the statutory scheme may it be implied that maternity is established simply by the contractual or shared intent of the parties." A thornier issue for the court was the plaintiffs' constitutional argument that the statue denied the wife equal protection of the law. This was problematic because the state's parentage law presumes paternity when a child is born to the wife during a marriage. Ultimately, though, the court concluded that there was no violation of the wife's equal protection rights. "[T]he Legislature, in recognizing genetic link, birth, and adoption as acceptable means of establishing parenthood, has not preferred one spouse over the other because of gender. And where both spouses are infertile, the law treats them identically by requiring adoption as the singular means of attaining parenthood," the court said. It explained that, where only one of the spouses is infertile, "an equal protection claim has not been articulated because their respective situations are not parallel and the Legislature is entitled to take these situational differences into account in defining additional means of creating parenthood." The court concluded: "[W]e are satisfied that the complained of disparate treatment is not grounded in gendered constructions of parenthood but in actual reproductive and biological differences, necessitating in the case of an infertile wife, the introduction of a birth mother whom the law cloaks with superior protection. ... "Given the State's valid interest in making identification of the father easier when the child is born during the marriage for child support purposes, and its equally sound interest in requiring more than a shared intent before effectuating a legal change in the parental relationship between adult and child, the distinctions drawn by the Legislature in the Parentage Act are not without a rational basis and therefore pass constitutional muster." (In re T.J.S.) Published: Wed, Mar 2, 2011