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New Jersey Supreme Court rules on surrogate parent law

Couples struggling with infertility have several possible options; recently, surrogacy has become more a prevalent choice. In 2010, 1,488 children in the United States were born to surrogates-that is almost double the rate in 2004.

With the increased use of surrogacy, many states are concerned about their laws regarding parental rights and surrogacy. The New Jersey Supreme Court recently upheld New Jersey's current and controversial surrogate parentage law.

Controversy over New Jersey's surrogacy laws

In the case appealed to the New Jersey Supreme Court, a husband and wife used a surrogate mother and donor sperm to become parents. The state required the wife of the couple to adopt the child in order to be included on the child's birth certificate, yet, under New Jersey's surrogate parentage law, the husband was automatically deemed the father.

New Jersey law requires a woman to legally adopt a child that is conceived from her husband's sperm, a donor egg and carried by a surrogate mother. However, the law allows the husband of a woman who is artificially inseminated with a donor's sperm to be legally the father of that child.

The couple who brought the case objected to the requirement that a woman must adopt the child when she is not the one to carry it, but a man is not required to adopt the child when a donor's sperm is used. They argued that the law discriminates on gender grounds. The New Jersey Supreme Court disagreed and upheld the law.

History of surrogacy and parentage issues

In 1988, a landmark case involving a child identified as "Baby M" occurred in New Jersey. Baby M had been carried by a surrogate mother who had signed a surrogacy contact with the future parents of the baby. The surrogate mother was to receive $10,000 after she delivered the baby and gave it to the couple.

But after the surrogate mother gave birth to the baby, she refused to give the child to the husband and wife she had contracted with. All three went to court to establish whether the surrogacy contract was valid. The trial court ruled that the surrogate's parental rights should be ended and allowed the wife of the contracting couple to adopt the child. The father already had parental rights since his sperm had been used.

The New Jersey Supreme Court overruled the trial court's decision in part stating that the surrogate, as a "fit mother," could not be forced to give up her parental rights even though she had signed a contract agreeing to do so. The husband retained custody, the wife's adoption was terminated and the surrogate's parental rights were restored.

The law in New Jersey has been amended so that surrogates are not allowed to be paid for their services. At present, most surrogates are gestational carriers who have no genetic relationship to the baby.

As surrogacy increases as a more popular way for infertile couples to have children, many legal professional are considering issues of parental rights and how they hold up in a surrogacy agreement.

If you are struggling with legal issues related to surrogacy or parental rights, it is advisable to seek out the counsel of an experienced family law attorney who can advise you about the best course of action.