Legal Issues Still Surround Surrogate Parenting

Twenty years after it first was practiced by thousands of American couples each year, or by celebrities like Sarah Jessica Parker or Giuliana and Bill Rancic, gestational surrogacy–in which a couple’s embryo is carried by a woman other than the mother–remains a legal minefield, The Washington Times reported this weekend. The newspaper profiled recent cases in New Jersey and California:

In late October, judges of the New Jersey Supreme Court were faced with yet another difficult question regarding surrogate parenting. Because the wife of a couple who wanted children was infertile, their baby was conceived with a donor egg and the husband’s sperm, then carried and delivered by a surrogate. The surrogate legally waived all her parental rights. The couple got a court order to name the wife as the mother on the baby’s birth certificate.

But after a nurse questioned putting the wife’s name down and got the state registrar’s office involved, the registrar refused to list the wife as the mother unless she went through a legal adoption process.

The couple challenged this decision in court, because when a baby is born to a married woman, her husband is automatically considered the legal father whether he is the biological father or not. But this is not true when it is the reverse.

An appeals court ruled in favor of the state registrar, and the New Jersey Supreme Court failed to reach a decision either way. So now, there is a child without any legal mother and the only option is going through the adoption process. This is a lengthy, expensive process and in the meantime there are all sorts of pitfalls that can happen.

This is the exact reverse of the situation in California a month ago. California Governor Jerry Brown vetoed a bill that would have allowed judges to recognize more than two legal parents if it is determined to be “required in the best interests of the child.” It would have allowed a previous custodial or biological parent to have parental rights and take care of a child if the two current legal parents are no longer capable, as long as doing so is required to protect the child’s best interests.

The problems Governor Brown expressed concern about simply haven’t materialized the states where similar laws exist, including the District of Columbia, Delaware Maine, Louisiana and Pennsylvania.

Image: Couple talking to a doctor, via Shutterstock

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