The New Jersey Supreme Court has failed to reach a majority verdict on whether a law that requires women to adopt a child born through surrogacy arrangements using donated eggs, to be considered the child's legal mother, discriminates against women affected by infertility.
A couple, who had entered into a surrogacy arrangement using the man's sperm and eggs provided by an anonymous donor, had sued the state of New Jersey after it overturned a court order putting them both on the child's birth certificate, with the surrogate's consent, obtained before the child was born. The deadlock in the Supreme Court means that an earlier decision against the couple stands and the intending mother, who has been raising the child with her husband for three years, must now apply to formally adopt the child.
New Jersey law states that only women with a genetic connection to the child can be considered the legal mother. Within surrogacy, if the intending mother uses donated eggs, then she must formally adopt the child as a step-mother. However, if a husband consents to using donated sperm to inseminate his wife, then under the Parentage Act the law makes the presumption that he is the legal father.
The couple argued this was unfair and the law discriminates against women who require the use of donated eggs. However, the six Supreme Court justices issued a split decision, with those deciding against the couple saying it was for the state legislators to make laws on public policy – although a measure to do this was vetoed by the state's Governor, Republican Chris Christie, this year.
'If one recognises that the legislature could, and did, base its distinction between presumptive rights of men and women on the realities of our physiological differences, then those distinctions can and must survive a constitutional attack', ruled Justice Helen Hoens, against the couple.
Justice Barry Albin disagreed, however. He wrote: 'Despite the obvious anatomical and physiological differences between the infertile husband and wife, once a surrogate knowingly and voluntarily surrenders her parental rights, their situations are not meaningfully different'.
Commenting on the case, Diane Hinson, a Maryland lawyer specialising in surrogacy, said: 'Nobody wants to make a decision. It's a complex issue, but somebody has to step up to the plate and act'.
In 1988, the New Jersey Supreme Court ruled that a surrogate mother was the legal mother of a child, known as Baby M, and the surrogacy arrangement was invalid – although the intending parents were awarded custody rights. This case involved donated sperm but the egg was that of the surrogate's. Since the decision, most surrogacy arrangements in New Jersey now use donated eggs or eggs from the intending mother, says the New York Times.
'When you look at the patchwork of laws across the country, that just amplifies the stress of infertility for the people who are going through it', said Hinson.
Some US states, including New York and California, have passed measures to deal with gestational surrogacy arrangements, but in the absence of laws in New Jersey many couples are making arrangements elsewhere that allow women to be paid for acting as gestational surrogates. 'Almost [all of] my clients go out of state and the reason for that is easy because you can't get a paid carrier in the state', said lawyer Melissa Brisman.
The Society for Assisted Reproductive Technologies has reported the number of children born to gestational surrogacy arrangements is on the rise in the USA, doubling between 2004 and 2008 to over 1,400.