New Jersey Surrogacy Case Requires Post-Surrogacy Adoption

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.”

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Heartwarming Story from a Surrogate Mother

If you have ever considered becoming a surrogate mother, this video is a must watch. Jesse carried & delivered a baby boy for a gay Czech couple – here, she talks about this moving experience.

The Marriage Commitment: Comments on Last Night’s Episode of ‘The New Normal’

Weddings, pretend, gay or otherwise are only meaningful when they are demonstrations of commitments, one person to another.  They are not about parties.  They are not about satisfying parents’ desires.  They’re are about making a connection to another person and a serious commitment to try to stay together.

My husband, Cliff, and I have been married three times. To each other. I always wanted to get married. I dreamed about it long before I even thought about being gay. I must have married Barbara Goldman about seven times when I was in elementary school. It nearly killed me when she started going out with Jamer Bone (really that was his name) in sixth grade. It was like she was cheating on me. I really wanted to marry my girlfriend in college. If had married my girlfriend in graduate school, my mother would have been thrilled. She is still one of the nicest people I have ever met. She was a nice Jewish girl, with a great mind and an amazing smile.

But I knew I had the right person when I met Cliff.  He was everything I wasn’t.  He was calm, when I was crazy.  He was even when I was erratic.  He was funny when I was provocative.  He was my rock and I was his butterfly in heat (“Boys in the Band”).  I asked him to marry me 25 years ago this month, when we had been together five years.  He said maybe.  Maybe he wanted a better ring.  Or maybe he didn’t  believe any more than David does in gay marriage.  He was committed to me.  He loved me, but public demonstrations of affection weren’t his thing.  I love being the center of attention.  He didn’t need other people’s approval to love me.  But like David, he loved me enough to do it for me.  So eventually he said yes.

Our first wedding wasn’t legal.  It was spiritual.  The Unitarians had just acknowledged the rights of same sex  couples to commit to each other.  So we had a commitment ceremony.  The nice thing about the Unitarians was that they let me throw in some Jewish traditions (like breaking the glass), and some 80s traditions (like listening to Pachebel’s Canon in D) as long as we didn’t mind hearing quotes from Kahlil Gibran and Anne Morrow Lindbergh (I didn’t).   I remember when things almost fell apart because my parents, not unlike the Nana character in New Normal, couldn’t manage the embarrassment of having friends potentially ask why people were traipsing down to their house in black tie, and they made clear they weren’t comfortable with the wedding at their home.  It still went forward.  Because like Goldie, we stood up for what we believed in and went forward at our local church with a reception back at our house instead.  And it was only then, when caterer and location and church all changed, and invitations became meaningless and had to be exchanged for last minute phone calls, that I realized what weddings were really about.  They were about love and statements of commitment to one another in front of one’s friends and family (yes my parents still came).  They are about trying to do your best to stay together, to care about each other, and to build a life together.

So, though, over the course of the last 25 years, the world (at least in our New England part of it) has seen to it to give more credence and validity to the love between two men (or two women) by instituting civil unions in Vermont (where we civilly unioned in 2002) and finally allowing gay marriage in Massachusetts in 2004 (where we had to do it again, because Massachusetts wouldn’t treat either of our earlier commitments ceremonies as a marriage (a rose by any other name… Romeo and Juliet), it remains that first, “pretend” marriage (as Wilbur, Shania’s intended, dubbed it)  where it was about love, commitment and a spiritual connection, and not about legal recognition.  For, despite being a lawyer myself, I will be the first to say that it is only the former that has real meaning.

Who Are Your Daddies?: When It’s Time to Stand Up for What’s Right As Gay Parents

NBC’s The New Normal returns tonight. In last week’s episode, the sitcom about a gay couple pursuing parenthood through surrogacy covered an important question.

David’s mother visits and the couple shares the news that they are expecting a child through surrogacy. As they sit down, she asks whose sperm they used. David tries to downplay the importance, but when she persists, Bryan tells her that they used David’s sperm.

“So it’s yours,” she says to David. “Thank God. My real grandchild.”

When David doesn’t tell his mother that she is wrong, Bryan becomes upset. “She’s excited about your baby,” he says after dinner. “It’s our baby, David. Do you have any idea how much that hurt my feelings?”

Gay parents face barriers to parenthood. There are legal barriers – in many states and countries, gay parents can’t adopt the child of their same-sex partner. In most states, gay couples cannot get married.

But there are also societal barriers that gay parents face. And sometimes, there’s a need to stand up for what’s right, even when the people who are wrong are friends and family.

John Weltman, Circle’s President and founder, shares a personal experience similar to the one portrayed on the show. When he and his husband Cliff had their two sons, they did not reveal who was the genetic father of each child. But their family members later learned of the genetic connections.

When some began treating the sons differently based on whom they shared their DNA with, Cliff and John had to stand up.

“My mother didn’t see either of our sons for six months because of it. But she came around,” John says. “When gay people raise a child, they have to stand up sometimes and say what’s right. It’s critical. You can’t listen to social commentary. Cliff and I are both parents of both of our sons. The genetic connections are unimportant.”

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