Stephanie Saul of the New York Times was kind enough to provide me with a link to the New Jersey trial court decision we blogged about last week. For those interested, you can read it by following this link. Having now had a chance to read the entire decision, my ultimate opinion has not changed as I believe this decision will be reversed on appeal. Until I have a chance to post a more detailed analysis, just some quick observations:
Judge Schultz, in addition to ruling that the Surrogate “possesses parental rights”, ruled that Sean Hollingsworth (the biological contributor) was the legal father.
The Judge never took into account the potential applicability of the marital presumption that exists under the New Jersey Parentage Act. While this would be a novel argument, by denying Donald Robinson Hollingsworth paternity rights, Judge Schultz might have violated the Equal Protection Clause (and possibly New Jersey anti-discrimination statutes) as he discriminated against a legally married couple based upon their sexual orientation. I concede this is a creative and uphill argument, but one nevertheless that should be explored further.
Judge Schultz made a point of commenting about the absence of any legislation in the 21 years following the Baby M case, jumping to the conclusion that, a fortiori, New Jersey had no intention of recognizing surrogacy. However, it is my understanding that the New Jersey Assembly began working on the New Jersey Parentage Act of 2006 so as to, among other things, address the new methods by which individuals are having children. As soon as I obtain the status of the this proposed legislation and any pertinent changes, I will update this post. It does bear noting that many states have begun revising their parentage acts to take into account techniques such as egg donation, embryo donation and gestational surrogacy because they recognize their existing laws are woefully inadequate.
Judge Schultz trumpeted the fact that traditional and gestational surrogate arrangements deserve no different treatment under New Jersey law because the Baby M case did not make such a distinction even though it could have. There are several problems with this “analysis”. First, gestational surrogacy was a very new and largely unavailable method to have a child in the 1980s. Use of gestational surrogates did not really become commonplace until the mid-1990s. As a result, there would have been little reason for the Baby M court to address the possibility of gestational surrogacy, let alone the use of a gestational carrier with donor eggs. Moreover, courts are charged with ruling upon the facts before them not speculating about hypothetical situations that have yet to even come into fruition. Further, the Baby M case, so heavily relied upon by Judge Schultz, did not contemplate a couple in a recognized gay marriage and a New Jersey domestic partnership engaging the services of a gestational carrier on an altruistic basis, yet under the Judge’s twisted logic, could have done so if the intended to extend their ruling to this instant case.
The Court also rejected the Hollingsworths’ attempt to use the landmark California Supreme Court decision of Johnson v. Calvert concluding that California and New Jersey have far different public policy interests.
I can find nothing in the decision that indicates whether the surrogate was compensated by the Hollingsworths. My speculation is that the omission of this information is not inadvertent. The Baby M case, used by this court to reach its ruling, involved a compensated traditional surrogate which at least raises the specter of an illegal contract for the sale of a child. If Ms. Robinson was an altruistic gestational carrier, then there is yet another distinction between this case and the Baby M decision.
It remains my opinion that Judge Schultz approached this case with a particular bias and used the facts to justify his opinion as opposed to reaching an objective decision based upon the facts. Schultz, in rejecting the distinction between traditional and gestational surrogacy, quoted this provision of the Baby M decision:
“The surrogacy contract 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.”
It is hard for me to accept that the Baby M court, confronted with an Intended Mother genetically related to her child and fighting for custody against a gestational carrier, would have spoken about “separation of a child from its mother” or taking “the child from the mother regardless of her wishes and maternal fitness” because that is exactly what the Court would have done if they gave custody to the non-genetic carrier. The bottom line is that the Baby M case dealt with a dispute between a compensated traditional surrogate, genetically related to the child she was carrying and an Intended Mother. This case involved a dispute between two individuals neither of which had a genetic connection to the child. Judge Schultz, in order to support his decision, relied on a case that bore little similarity to the case before him and effectively smashed a square peg into a round hole.
I will have more thoughts on this decision shortly.
Related Posts:
- More On The Odd Surrogate Ruling Out Of New Jersey
- New Jersey Judge Orders Custody Of Twins Be Given To Surrogate
- New Jersey Judge No Stranger To Controversial Rulings
- Ohio Appellate Court Awards Custody Of Baby To Intended Mother Who Used Surrogate & Donor Gametes
- German High Court Finds Surrogacy Immoral & Prohibits Entry Of Any Child Born From A Surrogate Arrangement
- Wall Street Journal Takes A Belated Look At Surrogacy
- Michigan Surrogate Defends Her Decision To Keep Twins On Dr. Phil Show
- Belgium Court Refuses To Recognize Parent-Child Relationship Of Twins Born By A California Surrogate
- Indiana Supreme Court Requires Father of Twins Through Surrogacy To Proceed With A Second Adoption
- Germany Refuses To Grant Visas To Twins Born To An Indian Surrogate. Adoption Next?
it’s about money. She also has a malpractice case for millions against the ivf clinic. That’s why it took her 5 months to sue.