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.


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In 1988, the New Jersey Supreme Court ruled that a surrogacy contract was invalid based upon the circumstances of that case.  The Court found that such agreements are in direct conflict with existing statutes and in conflict with New Jersey public policy.  In the Baby M case, would-be parents entered into a contract with a women who agreed to supply the egg for in vitro fertilization, to implantation of the embryo and to carry the fetus to birth at which point the would-be parents would adopt the baby.  However, the surrogate mother changed her mind after the birth of the child and would not agree to the adoption.   The Baby M decision made it clear that New Jersey courts disfavor surrogacy agreements especially those involving monetary exchange. 

The Baby M case involved a surrogacy agreement by a surrogate who was also the biological donor of the egg.  Since the 1988 Baby M decision, the question of whether or not surrogacy agreements are invalid regardless of whether or not the surrogate mother has biological relations to the child has never been answered.  However, recently, on December 23, 2009, a trial Court in Hudson County entered a decision in the A.G.R. v. D.R.H. and S.H. case finding that surrogacy agreements in New Jersey are invalid regardless of the biological relationship of the surrogate mother.


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