Unable to conceive, the New Jersey couple did what an increasing number of 21st-century parents have done: they got an egg from an anonymous donor, and made an agreement with another woman to carry the child for them.
And knowing that there are any number of ways that having a child by surrogate can end in heartache, they tried to protect against it. They had the surrogate legally renounce her right to the child, and had a judge pre-emptively order that their names appear on the birth certificate.
But for all their efforts, their case has become an object lesson in how much modern babymaking has outpaced the law, leaving even the most careful would-be parents relying on little more than crossed fingers.
On Wednesday the New Jersey Supreme Court deadlocked over how to handle the wife’s plea to be named the mother of the child that she and her husband are raising, ending a lengthy legal battle while providing little new clarity. The state had sued, successfully, to strip the wife’s name from the birth certificate. The couple argued this was discrimination: State law automatically makes an infertile husband the father if his wife uses a sperm donor, so why should the same presumption not apply to an infertile wife? An appeals court disagreed with that distinction, siding with state officials who argued adoption was the only option for a mother with no genetic connection to a child.
The court’s split had the effect of affirming the appellate court’s ruling and leaving the child, now 3, legally motherless. It also neatly captured the continued uncertainty across the country, 25 years after New Jersey was at the center of what remains the best-known surrogate custody dispute, over a child known as Baby M.
Three justices agreed with the couple that the law should not treat infertile women differently from infertile men. Three others argued that allowing women who hire surrogates to bypass adoption would give special privileges to those who can afford expensive reproductive technologies.
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