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.
In my rush to complete the blog post, I concede that I did not do a very good job articulating my position. What I meant by this paragraph was that Judge Schultz (according to the limited information about the opinion that has been released) did not rule that the Hollingsworths were not the fathers. Rather, he only ruled that Robinson was the mother. The two are not mutually exclusive, particularly in a case involving two fathers and a gestational carrier. Further, given Judge Schultz’s dogged (and, in my opinion, misplaced) reliance upon the Baby M case of 1988, which validated the use of the best interest of the child analysis in custody conflicts, it may very well be that this is less about surrogacy and more about Schultz’s opinion of the Hollingsworths’ lifestyle and fitness as parents.
Now I admit this is pure speculation on my part, particularly since I am relying solely upon news accounts to make sense of this Judge’s ruling. Given Judge Schultz’s bizarre decision last year in which he found portions of the New Jersey domestic violence laws unconstitutional, it would not be beyond the realm of possibility that this Judge awarded provisional custody to Ms. Robinson because of his own prejudices against same sex-parenting. I fully recognize the attenuated connection between the two cases, however it does give us some insight into this Judge’s thought process and possibly his ideological and political philosophies. Perhaps I am being too cynical and conspiratorial. However, opponents to gay marriage habitually contend that marriage is a solemn institution between a man and a women. I wonder if this decision was nothing more than Judge Schultz’s way of saying that parenting belongs in the exclusive domain of a man and a woman? If anyone has any information on other rulings of Judge Schultz, particularly in child custody disputes, please send them my way so I can give this Judge his fair due.