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Assisted Reproduction

New Jersey Judge Orders Custody Of Twins Be Given To Surrogate

In a surprising decision, a New Jersey Superior Court judge has just ruled that a woman who served as the gestational carrier for her brother is the legal mother of the twins she gave birth to:

In the New Jersey case, the surrogate, Angelia G. Robinson, agreed to have the children in 2006 for her brother, Donald Robinson Hollingsworth, an accountant in Manhattan, and his spouse, Sean Hollingsworth. The embryos were created from anonymous donor eggs and fertilized with sperm from Sean Hollingsworth.

The girls were born in October 2006 and went to live with the Hollingsworths at their home in Jersey City. But in March 2007 Ms. Robinson filed a lawsuit seeking custody, alleging that she had been coerced into the arrangement.

Judge Francis B. Schultz of Superior Court, who ruled in the case in Hudson County, N.J., relied heavily on the precedent established by the New Jersey Supreme Court in 1988 in the case of Baby M. The surrogate in that case, Mary Beth Whitehead, carried her own genetic child for another couple after artificial insemination with the man’s sperm. After Ms. Whitehead decided that she wanted to keep the baby, the court ruled that her maternal rights could not be terminated against her will.

“The surrogacy contract,” the Baby M court found, “is based on principles that are directly contrary to the objectives of our laws. It guarantees the separation of a child from its mother; it looks to adoption regardless of suitability; it totally ignores the child; it takes the child from the mother regardless of her wishes and maternal fitness.”

Citing that passage, Judge Schultz wrote, “Would it really make any difference if the word ‘gestational’ was substituted for the word ‘surrogacy’ in the above quotation? I think not.”

This ruling is surprising on a number of levels and I suspect will be overturned on appeal. Even if this ruling were to be upheld, its precedential value will be extremely limited and should not be interpreted as the death knell for surrogacy except, possibly, in New Jersey. First of all, the court’s reliance on the Baby M case is misplaced in my opinion given the significant differences between traditional and gestational surrogacy. In particular, the Baby M court was troubled by the fact that the payment to the surrogate to relinquish her biological child was the equivalent of a contract for the sale of a child which, by the way, is outlawed in every state. In this case, the child was not genetically related to the surrogate and presumably her compensation (if any), was not tied to her relinquishment of the child. Secondly, the parties worked in a state, New Jersey, where surrogate arrangements are void as violative of public policy. There is no information available to indicate if the sister was compensated to serve as the surrogate but if she was, then the Intended Parents ought to bring a legal malpractice claim against any attorney who advised them they could proceed given the legal climate in New Jersey. Thirdly, in this case, the surrogate contended that she was coerced which apparently factored into the court’s decision.

There are a number of other oddities about this case that make it aberrant. Among them is that the surrogate never had a child of her own nor underwent any psychological screening. In an industry that has little uniformity, there are five sacrosanct constants: 1) You never work with a surrogate who has not delivered a child of her own; 2) You never work with a surrogate that has not been psychological and medically screened; 3) You never compensate a surrogate for relinquishment of a child; 4) You never work with a surrogate on public assistance; and 5) You retain the services of an attorney to draft a contract memoralizing the understanding of the parties. There are a number of other factors that I can add to this list but these five are universally accepted. In this case, the parties violated no less than two of the commandments and thus the dispute should not be surprising. While I am sure the parties had the best of intentions at the outset, the system failed the Hollingsworths as they should never have been allowed to proceed with Donald Hollingswoth’s sister.

I would be remiss if I did not point out that while same-sex couples make up approximately 10% of all surrogate arrangements in the United States today, the issue that was ultimately adjudicated in this case will not be present in the other 90% of surrogate cases. To wit, Judge Schultz ruled that Ms. Robinson is the mother of the child. Since neither Donald or Sean Hollingsworth ever contended that they were the mother of the child, this case did not pit the rights of an Intended Mother against a Surrogate Mother as did the Baby M case. I am curious if the fact that the Hollingsworths were a gay couple influenced the judge’s decision in anyway. In the Baby M case, the New Jersey Supreme Court did, in dicta, affirm the lower court’s application of the best interest of the child analysis. If Judge Schultz factored the Intended Parents sexual orientation into his ruling, then I hope an equal protection challenge is raised in the likely appeal.

By the way, someone ought to advise Judge Schultz that words matter. In what might be one of the most insipid statements I have ever heard a judge utter, his statement that “Would it really make any difference if the word ‘gestational’ was substituted for the word ‘surrogacy’ in the above quotation? I think not…” has to rank at the top of the list. I wonder if Judge Schultz would think it mattered if he was charged with felony manslaughter instead of misdemeanor manslaughter. Or heck, whats the difference between murder and battery?

I will comment further on this case once I have had a chance to read the full opinion. However, from the little I have gleaned from news accounts over the past few months, this case is aberrational and its impact likely to be very limited. I have no doubt the New York Times will use this case to further its narrative about how complicated and risky surrogacy is due to the absence of any rules. Instead, it should serve though as a sobering reminder to anyone considering surrogacy that they run the risk of having profound problems if they fail to retain the services of qualified professionals and adhere to all industry protocols. The bottom line is that there have been over 38,000 successful surrogate arrangements in the United States since 1979. Over that 30 year span, only 31 times now has a surrogate tried to change her mind – a staggering 99.99% success rate. Surrogacy risky? Hardly.

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