Typically, when people think of a parentage a dispute, it is the father’s paternity which is at issue. However, with emerging science that paradigm is shifting. Specifically, with assisted reproductive technology on the rise, interesting questions crop up regarding the both of the child’s legal parents. This is because when a surrogate is used, hospital and state birth record procedures mandate that the surrogate’s name is put on the original birth record as the child’s mother simply because she gave birth. If the surrogate is married, her husband’s name is also normally put on the original birth record as the father. Therefore, the surrogate must cooperate in the establishment of parentage as to the intended parents in some sort of legal proceeding, either before or after birth, depending on the state.

This new facet of the law was explored in New Jersey in the Appellate Division’s approved for publication opinion of In the Matter of the Parentage of a Child by T.J.S. and A.L.S., ___ N.J. Super. ___ (App. Div. Feb. 23, 2011). There, the Appellate Division whether the New Jersey Parentage Act (Parentage Act), N.J.S.A. 9:17-38 to -59, recognizes an infertile wife as the legal mother of her husband’s biological child, born to a surrogate, and, if not, whether the statutory omission violates equal protection by treating women differently than similarly-situated infertile men, whose paternity is presumed under New Jersey law when their wives give birth during the marriage. The Appellate Division held that the Parentage Act did not apply to maternity under the circumstances presented by this case and the differing treatment of infertile husbands and wives was not a constitutional violation.

The plaintiffs in this case, T.J.S., the biological father, and A.L.S., his wife were infertile as A.L.S. was unable to carry a child to term. As a result, the husband and wife resorted to reproductive technology to assist them in having a child. They opted to have a child with the help of a surrogate. This involved arranging for the in vitro fertilization (IVF) of an ovum furnished by an anonymous donor using the sperm of T.J.S. The result was two human embryos which were implanted into a surrogate, A.F., who was to carry the child to term. The embryos were biologically related to the donor of the ovum and to T.J.S., but not to the wife or the surrogate.

Before the birth, the husband and wife sought to be declared the child’s father and mother under the Parentage Act, and requested a “pre-birth order” that required their names to be listed on the child’s birth certificate as the child’s parents. The husband and wife specifically rejected adoption because it would extend the process, during which time the child’s legal status would be in limbo. The trial court ordered that the birth certificate that was to be placed on file for the child was to reflect T.J.S. as the father and A.L.S. as the mother, on the condition that that the surrogate, A.F., surrender her rights to the child 72 hours after giving birth. The child, T.D.S., was born on July 7, 2009. Three days later, the surrogate relinquished all parental rights to the child.

Shortly after the child’s birth, the State Registrar learned about the order of the trial court and filed a motion in the trial court to vacate the listing of A.L.S. as the mother on the child’s birth certificate. The trial court granted that motion.

The husband and wife appealed. They argued that because the Parentage Act, presumptively conferred paternity upon a husband where the child was born to the wife during marriage, or automatically under the law, where the wife is artificially inseminated using the sperm of a donor, it should be read in a gender neutral fashion so as to apply to the infertile wife as well. They further argued that if the statute is not construed as such, it would be unconstitutional on its face because infertile married men and women are treated differently under the law.

The Appellate Division began by examining the history of the statute. While noting that the presumption, that a man is the father of a child born to his wife, extends to a husband who consents to his wife being inseminated with donor sperm under the supervision of a licensed physician, the Court noted that the same presumption is specifically not extended to a wife whose husband, while married, fathers a child with another woman. However, this mother-child relationship can be established with relative ease through adoption. Thus, the Appellate Division concluded, that the plain language of the Act, only provides for a declaration of maternity as to the biologically or gestationally-related female and requires adoption to render A.L.S. the mother of T.D.S.

Because the Court concluded that Parentage Act could not be interpreted in a gender neutral manner, the Appellate Division turned to the question of whether a gender-based classification for infertile married women and infertile married men was unconstitutional. After expounding upon New Jersey’s equal-protection jurisprudence, the Appellate Division concluded that the gender-based classification was not unconstitutional because it was only applied to married husbands as the purpose was to address scenarios where there is a strong likelihood that the man is the biological father of a child. Indeed, the legislature’s intent behind the enactment of the statute was to establish paternity “to facilitate the flow of benefits from the father to the child" – i.e. to ensure that the man would not be able to evade his financial obligations to a child born during the marriage. Moreover, the Court reasoned that the language of the statute makes clear that A.L.S. cannot be the presumptive legal mother of the child born to the surrogate simply because she is not the biological mother of the child. Rather, the child is biologically related to T.J.S. and the anonymous ovum donor. A presumption of motherhood under these circumstances would therefore be contrary to the Legislature’s intent behind the enactment of the statute.

In so concluding the Court re-examined the seminal New Jersey case of In re Baby M, 109 N.J. 396 (1988). There, the Supreme Court specifically declined to extend the statute’s applicability to the circumstance at hand:

The Parentage Act’s silence . . . with respect to surrogacy, rather than supporting, defeats any contention that surrogacy should receive treatment parallel to the sperm donor artificial insemination situation. In the latter case the statute expressly transfers parental rights from the biological father, i.e., the sperm donor, to the mother’s husband. . . . Our Legislature could not possibly have intended any other arrangement to have the consequence of transferring parental rights without legislative authorization when it had concluded that legislation was necessary to accomplish that result in the sperm donor artificial insemination context.

Finding the reasoning of the Supreme Court to be sound, the Appellate Division thus found that because the statute already withstood judicial scrutiny in the face of an equal protection challenge, and because the lack of Legislature response to the issues raised by the Supreme Court’s decision in In re Baby M, the plaintiffs’ argument that the Parentage Act should be re-drafted to address their specific situation was rejected. The Court further reasoned:

…paternity attaches to the infertile husband because of the sperm donor’s lack of temporal, physical, and emotional investment in the child’s creation. This stands in sharp contrast to the surrogate mother whose parental rights are deemed worthy of protection and thus stand in the way of the infertile wife’s claim to automatic motherhood.

While the Appellate Division did not “deny the intrinsic societal worth, emotional
appeal, and compelling logic of granting A.L.S. parenthood to the child, T.D.S., provided the gestational carrier’s rights are protected during the statutory seventy-two hour ‘window’ period,” it noted that the fact remains that “the means chosen by the Legislature to create that status in this instance remains adoption, rather than by operation of the Parentage Act.” The Court further remained satisfied that the that the complained of disparate treatment is not grounded in societal notions of parenthood, but rather in the innate reproductive and biological differences between men and women, necessitating in the case of an infertile wife, the introduction of a birth mother whom the law cloaks with superior protection. Thus, given the State’s valid interest in identifying the father more easily 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 legally changing the parental relationship between parent and child, the Court concluded that the distinctions drawn by the Legislature in the Parentage Act are constitutional.