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The New Jersey Supreme Court remains divided on the issue of paternity rights assigned to infertile men and women. In a recent ruling, Matter of Parentage of a Child by T.J.S. and A.L.S., A-130-10, the state Supreme Court met to determine whether the Parentage Act of 2006 violates the Equal Protection Clause, and ultimately let stand a decision from the lower court about surrogacy and parenthood.
Assisted reproduction methods, meaning any other methods of bringing about pregnancy besides sexual intercourse, have changed the legal implications of paternity. Married couples who are unable to conceive have several options thanks to advancing technologies, but some of these options do not name the wife as a legal parent. The Parentage Act rules that an infertile man is the legal father of any children his wife bears through artificial insemination, but that an infertile woman is not the legal mother of any children born biologically to her husband and a gestational carrier. Under this Act, surrogacy is risky for an infertile married woman—a child born from an artificially inseminated surrogate using the husband’s DNA is only the legal child of the husband, New Jersey family attorneys say.
The Act’s “presumption of paternity cannot be understood or interpreted to create a presumption of maternity,” the state Supreme Court ruled. The Act was put in place to protect surrogates, the judges reasoned, and if a woman who shares no genes or biological connection with a child is legally recognized as the child’s mother, more couples may turn to surrogacy than adoption, potentially placing a greater burden on gestational carriers.
The court’s ruling upheld the Appellate Division’s earlier decision that there was no equal protection problem inherent in the Parentage Act, because the law makes allowances for the biological and physiological differences between women and men. The three state Supreme Court justices who voted to let the Appellate Court’s ruling stand claimed that the state would have an Equal Protection violation if the decision were overturned, because then infertile wives would be elevated to motherhood by virtue of their marriage, rather than their connection to the child, putting infertile wives at an unequal advantage over all others seeking to assert parenthood.
As technology advances, the law strives to keep up. Assigning parental rights has become a complicated matter, as parents turn to surrogates and artificial insemination to conceive. The New Jersey family lawyers at Helmer, Conley, and Kasselman are keeping up to date on these issues, and can offer advice to parents whose legal standing in the life of their children may be questioned.
