N.J. agency says only way 'intended mother's' name could appear on birth certificate of child is through adoption because she did not give birth to him and the child has none of her DNA
Clik here to view.
A January file photo of Sen. Loretta Weinberg (D-Bergen), a champion of family issues, says laws on reproductive technology is a topic the Legislature needs to address.TRENTON — She has a birth certificate identifying her as the mother of her 19-month-old son. But because she has no biological or genetic connection to the child, no court in New Jersey will recognize her as the mother.
The boy, conceived with a donor egg and carried by a surrogate, is not the son of the woman in the eyes of the law because she did not give birth to him and has no genetic link to him, an appellate court declared last month. If she wants be named the child’s mother, she must adopt him, the court said.
More than two decades after the Baby M controversy highlighted the shortcomings of New Jersey’s parentage laws, this case, which has the potential to affect thousands of couples trying to start a family, is again exposing the law’s inability to keep up with advances in reproductive technology.
"We’re operating under a law that’s more than a quarter of a century old," said Donald Cofsky, a Haddonfield attorney representing the woman and her husband, who are identified in court papers only by their initials. "My clients believe this is something that has to be addressed — not just for them but for everybody else in this situation."
The controversy centers on how the couple’s son was conceived and born. The pair, professionals who live in Union County, arranged for a surrogate to carry a baby conceived by fertilizing an egg from an anonymous donor with the husband’s sperm.
A Superior Court judge issued the couple a pre-birth order allowing Cofsky’s client, the so-called "intended mother," to be listed on the birth certificate as the infant’s mother, as long as the surrogate relinquished any claim to the baby. The surrogate did so three days after giving birth, on July 7, 2009.
But the state Bureau of Vital Statistics, which learned of the judge’s ruling, asked him to invalidate the order. The agency said the only way the "intended mother’s" name could appear on the birth certificate is through adoption because she did not give birth to him and the child has none of her DNA.
Cofsky says that’s discrimination. Under the state’s parentage laws, a husband is always presumed to be the father of a baby even if his sperm isn’t used for conception, he said. But a wife who doesn’t use her egg or her body for the pregnancy is never the presumed to be the mother. Instead, she has to adopt the baby, a process that can take months and cost up to $6,000, he said.
"The law says a mother has to be genetic, biological or adoptive," Cofsky said. "A father doesn’t have to be any of those."
In a 28-page decision issued Feb. 23, an appellate panel said there was no discrimination — just a deficiency in state law which does not address the newer reproductive technology of in vitro fertilization.
The court deciding the case was working with laws adopted after the 1988 Baby M ruling that sorted out the rights of parents using what was then the relatively new reproductive technology of artificial insemination and surrogacy.
In the Baby M case, surrogate Mary Beth Whitehead, who was artificially inseminated and gave birth in 1986, refused to give up the baby girl to the biological father, William Stern, and his wife Elizabeth. The case highlighted the deficiency of surrogate contracts and prompted legislators throughout the country to more clearly define the relationships of those involved in these agreements.
But Baby M was conceived through artificial insemination — placing sperm directly into a woman for her own egg to be fertilized in her own body. The son of Cofsky’s clients was conceived through in vitro fertilization, in which an egg fertilized by sperm in a laboratory is transferred to a woman’s body, in this case a surrogate, not Cofsky’s client.
The appellate panel noted New Jersey parentage laws only deal with artificial insemination. The panel said it’s up to the Legislature, not the court, to decide the status of the intended mother of a baby conceived through in vitro fertilization.
"In the absence of a legislative response, plaintiffs have asked us to rewrite the statute to accommodate their circumstance,’’ Appellate Judge Anthony Parrillo wrote for the three-judge panel. "We decline the invitation."
Eleanor Nicoll, public affairs manager for the American Society for Reproductive Medicine, said some states have not been able to keep up with the advances in assisted reproductive technology.
"There are a lot of ways that people can form their families these days and the law needs to keep up with that technology," she said. "It seems like it would be a good time for the Legislature to take a look at it and make things clearer."
At the very least, she said, there should be uniformity in how pre-birth orders are obtained.
In the two to three months it takes to adopt a newborn in these circumstances, any number of complications can arise, Cofsky said.
If the intended mother dies before the adoption is finalized, her benefits, such as life insurance or Social Security, can’t pass to the child. If the baby was named a beneficiary in her will, inheritance taxes kick in because only the legally-recognized children are exempt from those taxes. If the father dies during that time, his family has more claim to the child than the intended mother does, said Cofsky, whose clients are deciding whether to ask the state Supreme Court to take up the issue.
"It’s an extremely well-written opinion, but unfortunately is an extremely conservative one,’’ said Cofsky, who is working with the state’s Administrative Office of the Courts to standardize adoption procedures in New Jersey. "They did not take an expansive view. I wasn’t asking them to rewrite the law. I was asking them to interpret the existing law in a way my clients felt would be a gender-neutral fashion. It raises more questions than it answers."
State Sen. Loretta Weinberg (D-Bergen) a champion of family issues, said it’s a topic the Legislature needs to address.
"It certainly is a new area that we should be doing some research into to see what is appropriate," she said. "As we move ahead in the scenario of helping people become parents in a variety of ways, I would assume the law might have to catch up to that.’’