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Protecting surrogate mother’s right to change her mind, NJ high court denies infertile wife’s claim to be listed as the parent at birth of a child born to another woman artificially inseminated with the husband’s sperm

October 27th, 2012 by Joseph William Singer

An evenly-divided Supreme Court of New Jersey affirmed a lower court’s opinion that protected the potential parental rights of a surrogate mother who had been implanted with the sperm of a man and the egg of an anonymous donor and denying the right of the man’s wife to have her name placed on the birth certificate with her husband’s at the time of birth of the child even though it was contingent on the surrogate mother’s right to change her mind up to 72 hours after the birth of the child. In re T.J.S., 2012 WL 5233616 (N.J. 2012), aff’g In re T.J.S., 16 A.3d 386 (N.J. Super. Ct. App. Div. 2011). The state statute affirms the potential parental rights of the sperm donor and the biological mother who gives birth to the child, as well as the egg donor. The statute protects the rights of the biological mother to retain parental rights (even if the egg is donated by someone else) unless she relinquishes those rights in an approved manner; the statute requires adoption by the mother who is not biologically related to the child while recognizing the sperm donor’s rights as father because of his biological connection to the child.

Although the state statute allows the husband’s name to be placed on the birth certificate of a child born by his wife even if she is impregnated with the sperm of a third-party donor, the court did not find a constitutional equal protection violation when it denied that right to the infertile wife in this case. In effect, the court thought there was a rational reason to make it easier for sperm donors to relinquish parental rights than for surrogate mothers to do so; conversely, it saw reason to place parental obligations on husbands regardless of a biological connection to a child born by their wives while denying parental rights and obligations for wives who have children through a surrogate mother.

The three dissenters found such a distinction to violate the equal protection clause of the constitution by granting the husband the right to immediate parental status despite lacking any biological connection to the child while denying that right to the wife over a child biologically connected to her husband, especially when the birth certificate explicitly made the wife’s parental status contingent on the waiting period that allowed the biological (surrogate) mother to change her mind.

The case implicates property issues because the parental/child relationship not only confers rights on the child but obligations on the parent so who the parent is defines who has obligations to support the child, thus encumbering the parent’s property to comply with those obligations.

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