Once again, we’re talking about adoption as a safeguard for those who have become parents through surrogacy. In the past, we’ve written about gay couples who turn to second-parent adoptions to secure their parental rights following birth orders. But in some states, adoption following surrogacy is highly recommended for all intended parents—gay and straight.
A new New Jersey surrogacy decision
Again, our eyes are on New Jersey. Two months following Governor Chris Christie’s decision to veto the New Jersey Gestational Carrier Agreement Act and 24 years after the state’s famous Baby M case, the New Jersey Supreme Court is once again making things difficult for intended parents who pursue surrogacy in the state.
Last week, a New Jersey mother lost her battle to be named a legal parent of her child without being forced to go through the adoption process. She and her husband couple created embryos using his sperm and eggs from an anonymous egg donor, which were implanted in a gestational surrogate. They all signed a surrogacy agreement and a trial court issued a pre-birth judgment that both intended parents would be named on the birth certificate following New Jersey’s mandatory 3-day waiting period after the birth.
At first, all went as planned. A birth certificate was issued naming both parents. But shortly afterwards, the state’s Bureau of Vital Statistics and Registration stepped in and asked to have the mother’s name removed from the birth certificate, arguing that New Jersey law would require an adoption in this case.
New Jersey law says that infertile men are the legal fathers of the children their wives conceive using donor sperm. But no such protection exists for an infertile woman who requires a gestational surrogate and egg donor to become a mother. But the statute, the parents argued, should be read as gender neutral—otherwise it violates the guarantee of equal protection enshrined in the state’s constitution.
The appellate court disagreed with this argument citing physiological differences between men and women and the involvement of a separate gestational mother with her own rights. The state’s Supreme Court split on its decision last week, effectively affirming the appellate court decision and requiring the mother to pursue adoption to secure her parental rights.
Adoption as a safeguard of parental rights
It’s unfortunate when a case like this comes around and adds additional obstacles for intended parents who are pursuing surrogacy. Circle’s focus is on ensuring our intended parents are able to fully secure their parental rights.
Circle Surrogacy does not accept surrogate applicants from New Jersey because of the state’s record on surrogacy. But the recent judgment may also raise questions for intended parents from New Jersey who are matched with surrogates elsewhere in the United States.
Adoption in addition to any judgments of paternity is the surest way to protect parental rights across the nation following a surrogacy arrangement. In the event of a divorce proceeding in the future, adoptions help protect the rights of non-biological parents since states have mixed records on recognition of judgments of paternity or pre-birth orders.
“We’re now going to be recommending to New Jersey residents what we’ve always recommended for our New Yorkers,” says Circle President John Weltman, “If you’re doing gestational surrogacy with egg donation, we’re advising that you obtain an adoption in addition to any birth order, in order to safeguard your parental rights.”