Assisted Reproduction and Parental Rights

What happens regarding assisted reproduction and parental rights when child custody is at stake? The rapid development of assisted reproductive technology in recent decades has been a boon to would-be parents who are unable to conceive without medical assistance.  Laws regarding parental rights in surrogacy and sperm donation are still developing, and laws differ from state to state. For parents who are not genetically-related to children, legal parental rights may depend on the exact process through which a child is conceived, as well as the state in which the child is born. The following information relates to the laws and public policy followed by New Jersey Vital Records and New Jersey courts.

The New Jersey Parentage Statute

The New Jersey Parentage Statute defines a “parent and child relationship” as “the legal relationship existing between a child and the child’s natural or adoptive parents” (N.J.S.A. 9:17-39). A natural mother can establish parentage simply by proof of having given birth to a child. Under most circumstances, a natural father is named on the birth certificate and paternity is never challenged. When there are challenges to parentage, certain presumptions set out in the statute come into play. For couples using assisted reproductive technology, challenges either from a birth mother or from a second genetic parent of either gender are far more common. Prospective parents need to be prepared for such possibilities.

Sperm Donation

Section 9:17-44 of the New Jersey Parentage Statute provides that a husband will be the legal father of a child if, with both spouse’s written consent, his wife is artificially inseminated with donated semen under physician supervision. The semen donor has no parental rights unless the mother has signed a written contract with him to the contrary. The statute contains no parallel presumptions regarding motherhood. After the 2006 New Jersey Supreme Court decision of Lewis v. Harris, however, New Jersey began issuing birth certificates for registered domestic partners or civil union couples (and now married couples) where one of two female partners carry a child conceived via physician-assisted anonymous sperm donation.

Traditional Surrogacy

The New Jersey Supreme Court declared surrogacy contracts invalid and against public policy in the 1988 Baby M. case. Baby M. dealt with a traditional surrogacy arrangement, in which a woman carries a child conceived from her own egg and the intended father’s sperm.  The court noted that it was illegal for a New Jersey birth parent to contractually relinquish parental rights in exchange for monetary payment, and that New Jersey’s adoption statute, N.J.S.A. 9:3-41e, prohibits a birth mother from signing away her parental rights before 72 hours have passed following the child’s birth.

Gestational Surrogacy

Baby M. did not directly address gestational surrogacy, in which the surrogate carries both a donated egg and donated sperm. Under New Jersey’s Parentage Statute, however, a birth mother has a claim to parentage even absent genetic ties to the child. The statute is silent as to parental rights in conceptions using donated eggs or embryos. In the 2012 case of TJS and ALS, the New Jersey Supreme Court refused to extend the marital presumptions of parenthood applicable in anonymous sperm donations to anonymously donated eggs or embryos carried by surrogates. In T.J.S., a married woman claimed that she was entitled to a presumption of motherhood for a child conceived with her husband’s sperm and an anonymous donor’s ovum, and carried by a gestational surrogate. The court disagreed, reasoning that surrogates are birth mothers who, unlike sperm donors, typically develop strong physiological and emotional ties to the children they carry. The court also noted the applicability of the 72 hour waiting period in New Jersey’s adoption statute.

The TJS decision means that in order to obtain legal parental status in a surrogacy situation, intended but non-genetically related mothers, as well as intended but non-genetically related fathers in same-sex couples, must pursue second-parent adoptions.

Gestational Surrogacy Where Both Genetic Parents Are Intended Parents

In the 2000 case of AHW v. GHB, a New Jersey superior court addressed the situation where a surrogate carries the child of two genetic parents (conceived via the intended father’s sperm and the intended mother’s egg). The judge ruled that both genetic parents could be named on the birth certificate, but not until 72 hours had passed since the birth and the birth mother had relinquished her rights. The court declined to address what might occur if the birth mother refused to relinquish such rights.

Proposed Legislative Change in New Jersey

Since Baby M., New Jersey courts have attempted to address the constantly developing scenarios involving assisted reproduction. This has been challenging due to the competing legal rights of the various individuals involved. Courts have left it to the legislature to make major changes in the law. In June of 2015, a bill (S866/A2648) that would have validated gestational surrogacy contracts complying with certain detailed requirements, including medical and psychological prescreening evaluations for potential surrogates, passed both houses in the New Jersey legislature. The new law would have permitted pre-birth parentage orders for intended parents using gestational surrogates. It would also have regulated the kinds of reasonable expenses, including medical fees, legal fees and living expenses during pregnancy and post-partum recovery, that intended parents can legally pay surrogates. On June 30, 2015, Governor Christie vetoed this bill. In early 2016, the bill’s sponsors reintroduced it as A910/S1238.

Proceeding with a Surrogacy Arrangement in New Jersey

The current state of the law does not mean that New Jersey couples cannot use surrogates to complete their families. It does however, mean that this choice must be made carefully and with full knowledge of the applicable laws and the risks for all parties. There are surrogacy programs available for New Jersey parents. If you wish to use a surrogate, obtain as much information as possible from different programs regarding procedures and costs. Above all, be sure that both you and your surrogate have attorneys with legal expertise and experience with surrogacy.

For help at any stage of the process of expanding your family through assisted reproduction, request and initial consultation today. Secure your family’s future. Call today: (888) 888-0919.