NEW JERSEY SURROGACY – Was it Properly Judged
The story is pretty straightforward – The implications are far from
One of the partners in a gay union asks his sister to be a gestational surrogate using the egg of an anonymous donor and the sperm of his partner. Twins are born and ……….
The surrogate seeks parental rights despite the fact that she has no genetic link with the twins – and she gets it.
What is left to see is if she gets primary custody and the amount of child support she will ultimately receive.
Interestingly, the court did not see any difference (in the parental rights of the surrogate) if there is a genetic link or not. This emotion is generally reserved for the level of love and caring of either intended parents or adoptive parents, not for people who have decided to and committed to carry a baby for others with the express understanding that will relinquish any rights they may have regarding the children.
In fact, the court’s decision, which is appended below, in equating gestational (no genetic link) with traditional surrogacy (genetic link) created new fangled parental rights for the non genetic surrogate.
The effect of this decision is far reaching.
Prior conventional wisdom of New Jersey law was that based on the famous Baby M case, traditional surrogacy (in which the surrogate was also the egg donor and there was a genetic link with the child) was not permissible, and that even gestational surrogacy in which the ova (egg) is either supplied by the intended parent or by an egg donor (leaving the surrogate without any genetic link to the child) would only be acceptable if there was no compensation. In fact, the lack of compensation, from a practical perspective essentially rendered the only possible surrogacy arrangements that would be condoned in New Jersey to be those for which the surrogate was performing this service of carrying the child for altruistic reasons – generally a very close friend or a family relation. Clearly this decision does away with surrogacy in New Jersey.
The effect of embarking on surrogacy without a very conservative approach to the law, and in the case of foreign surrogacy, embarking on the journey without both a very conservative approach to surrogacy law and immigration law can be catastrophic.
The pain in this case begins shortly after twins in question were born on October 4, 2006, when custody issues and questions of parental rights first came before the court. The decision was issued more than three years after the children were born. This is not a case that only deals with potential future rights of and between a surrogate, the sperm donor and his partner, but inherent in this case are three years of visitation, custody and child support battles – issues that one would normally find in a hotly contested divorce.
This case is far from over because all the court has really done is establish that the surrogate, despite the fact that she has no genetic link with the child, has been granted parental rights – and that the lives of intended parents who were hoping to live happily ever after, will never be the same. What remains to be seen is what those parental court created parental rights will yield vis-à-vis custody and support in the future.
The couple entering into this arrangement, might well have proceeded on what was conventional wisdom at that time – that gestational surrogacy without payment was permissible in New Jersey – despite the fact that relating to surrogacy, there had been no affirmative ruling conferring parental rights on gay couples.
The pain and the uncertainty that the couple face in this case, not to mention their future battle is heartbreaking.
One would hope that people seeking to build a family (who are in positions because of which they have to resort to surrogacy) would at least be able to proceed with the peace of mind that if they finally achieve their dream and a child was born would in fact have the familial setting that they both hoped for, anticipated and agreed to. There is too much uncertainty in the reproductive process to allow for unnecessary uncertainty once children are born of surrogacy.
The lessons to be learned from this tragedy are, the importance choosing a venue that is surrogacy friendly, drawing proper documents, and in the case of foreign surrogacy covering all of the immigration issues in advance.
