TRENTON – A divided state Supreme Court this morning upheld a lower court decision that an infertile wife is not recognized as the legal mother of her husband’s biological child born to a gestational carrier.
The court ruled that the right to equal protection under the New Jersey Constitution was not violated because the distinctions drawn between an infertile husband and an infertile wife are grounded in actual reproductive and biological differences, which the Legislature may consider in defining alternative means of creating parenthood.
State Supreme Court Justices Helen Hoens, Anne Patterson and Dorothea O’C. Wefing ruled in favor of the lower court ruling today.
Dissenting were justices Jaynee LaVecchia, Stuart Rabner and Barry Albin.
The issue was whether the New Jersey Parentage Act, which provides that an infertile man is the father of a child born to his artificially inseminated wife, violates equal protection by not recognizing an infertile woman as the legal mother of her husband’s biological child born to a gestational carrier.
The plaintiffs, identified solely by initials, arranged for in vitro fertilization and entered into a surrogacy agreement with a woman also identified just by initials.
Before the child’s birth, plaintiffs sought a court order declaring their parentage under the Act and a pre-birth order directing that their names be listed on the birth certificate as the parents. Plaintiffs did not pursue the adoption process because the delay would place the child’s status in limbo, the court stated.
Three days after the child was born, the surrogate relinquished her rights. Soon after, the Department of Health and Senior Services, Bureau of Vital Statistics and Registration, learned of the pre-birth order and moved to vacate the portion directing the wife to be listed as the mother on the birth certificate, according to the court.
The couple fought that effort by the state, arguing the Act should be gender neutral, otherwise the Act is unconstitutional.
The court sided with the state, and an appellate court agreed.
“The Appellate Division held that the right to be legally declared the child’s mother based solely on the parties’ shared intent and by the most convenient and immediate means possible is not a fundamental right, and that … gender-based differentiation may survive an equal protection challenge if it is based on real physiological differences between men and women,” the court stated.
The court, operating in this matter with only six members, divided evenly. There remain two vacancies on the court, with temporary justices being assigned to cases.
However, in his dissent, Albin said that “A legal scheme that treats differently those who should be treated alike violates the equal-protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution.”