Many New Jersey married couples who can’t have a baby themselves turn to artificial insemination as a way of fulfilling their dreams of having a family.
Under the New Jersey Parentage Act, a married man is deemed to be the natural father of his wife’s child, if the wife artificially inseminated with another man’s sperm. Therefore, he can be listed as the father on the child’s birth certificate, even though there is no biological link between the husband and the baby.
However, a wife is not given similar rights, if the baby is born as a result of the husband’s sperm being implanted in the womb of another woman.
In the Matter of Parentage of a Child by T.J.S. and A.L.S. the New Jersey Supreme Court was recently asked to review a decision by a lower New Jersey appeals court, which had refused to allow a wife to be listed as the mother on the child’s birth certificate in that situation—even though the surrogate mother had previously relinquished her rights.
This case started when T.J.S. (the husband) and A.L.S. (the wife) could not naturally conceive a child. They turned to in vitro fertilization and used the husband’s sperm to fertilize the egg of another woman, which was then implanted in the surrogate. Therefore, neither the wife nor the surrogate had any genetic connection to the child.
The trial court initially granted the request of the husband and wife for a pre-birth Order, allowing both of their names on the child’s birth certificate of the child. However, after the child’s birth, the trial court vacated that pre-birth Order at the request of the New Jersey Bureau of Vital Statistics/Registration and Department of Health, and ruled that the wife’s only option available under New Jersey family law is to adopt the child.
The husband and wife appealed to the Appellate Division of the New Jersey Superior Court. They argued that to deny the wife the same right as the husband constituted a violation of the wife’s equal protection rights. The Appellate Division, however, affirmed the trial court’s decision.
Incredibly, the six Justices of the New Jersey Supreme Court could not reach a majority decision. Three Justices voted to affirm the lower court decisions, and three Justices voted to reverse those decisions. As a result of the tie, the lower courts’ decisions were allowed to stand.
Why should a woman be forced to go through the time and expense of having to adopt a child in order to be declared as the child’s legal mother, when a man in seemingly the same position does not have to do so? The Appellate Division’s reasoning was that a woman does not have a fundamental right to be declared a child’s mother through the most convenient way possible, even if all parties involved desire that result.
It would therefore appear that it is up to the New Jersey Legislature to amend the New Jersey Parentage Act, if the Legislature wishes to remedy the inconsistency.
Salvaggio Law Group LLC devotes its entire practice to New Jersey Divorce and Family Law matters, including those relating to issues about adoption and child custody.
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