Are Would-Be Mothers and Fathers Equal as Parents in Surrogacy Births?

New Jersey Husband and Wife want children. But Wife is sterile.

So Husband and Wife arrange an anonymous egg donor and a surrogate mother to carry their Baby.

The surrogate mother waives her legal rights to their Baby in writing.

Finally, Husband’s and Wife’s Baby is born. Arrangements are made among the “players”, including the surrogate mother, for Husband and Wife to be listed as the parents on Baby’s birth certificate.

Only … the bureaucrats at the New Jersey Office of Vital Statistics won’t go along with listing Wife as Baby’s mother. They are fine with listing Husband as Baby’s father though.

Huh?! So say Husband and Wife. What is the problem?

Well, it turns out that the New Jersey statute governing surrogate births to sterile couples legislates that:

  1. even if the would-be father is not the sperm donor, the would-be father will automatically be the surrogate birth child’s legal father

  2. but if the would-be mother is not the egg donor, the would-be mother will not be the child’s legal mother; the would-be mother must legally adopt the surrogate birth child.

Based on that statute, the New Jersey Office of Vital Statistics fights listing Wife’s name as Baby’s mother on Baby’s birth certificate.

So, Husband and Wife counterstrike, challenging the statute as discriminatory and violating the constitutional principle of equal protection under the law.

But a New Jersey intermediate level appellate court disagrees with them, upholding the statute – and leaving the Wife in the position of having to adopt the now three year old Baby she and Husband have been rearing for three years.

The intermediate appellate court opines that, absent a legal adoption by the Wife, the Baby is biologically related only to the surrogate mother and the egg donor. And that any discrimination in the statute is adequately justified by physiological differences between mothers and fathers.

On appeal to the New Jersey Supreme Court, three of six justices agree with the lower appellate court … and three justices agree with Husband and Wife.

A “tie”. But, unlike in sports, this tie does not go to extra innings until a clear winner emerges.

Instead, here, the “tie” falls short of the majority required to reverse the intermediate appellate court. Leaving the lower appellate court’s ruling in effect.

Requiring the Wife to adopt her Baby.

Via a streamlined stepparent adoption though. Possible because the statute recognizes the Husband as the Baby’s legal father.

As may be apparent, New Jersey has yet to approve surrogacy contracts. This may go a long way toward explaining this outcome in the New Jersey Supreme Court.