New Jersey Judge Rules Against Gay Couple In Surrogacy Case

1/1/10-by Paula Brooks
A New Jersey judge has ruled that a gestational surrogate who gave birth to twin girls for her brother and his legal spouse, is their legal mother, even though she is not genetically related to the twins.

Relying heavily on the precedent established by the New Jersey Supreme Court in 1988 during the case of Baby M, where Mary Beth Whitehead decided that she wanted to keep a baby she had carried as part of a surrogacy agreement with a New Jersey couple, New Jersey Superior Court Judge Francis B. Schultz ruled that Angelia G. Robinson maternal rights could not be terminated against her will.

Citing a passage in the Baby M decision at said “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.” 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.”

Court papers released last week say Ms Robinson agreed to act as a surrogate and 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.

In the Baby M case, Mary Beth Whitehead, carried her own genetic child for another couple after artificial insemination with the man’s sperm, but later decided that she wanted to keep the baby. The New Jersey Supreme Court invalidated the traditional surrogacy agreement in that case, which provided a $10,000 fee to Whitehead. The Court also barred the use of money in an adoption placement and further held that no one could contractually abandon his or her parental rights.

However in gestational surrogacy, the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is unrelated to the child (e. g. because the child was conceived using egg donation, sperm donation or is the result of a donated embryo).

Prof. Charles P. Kindregan, an expert in reproductive technology law who teaches at Suffolk University Law School in Boston, said the New Jersey ruling, which was made Dec. 23 but released to the parties in the case this week, could expand the rights of gestational surrogates if it stood.

“If it’s upheld, that suggests that gestational surrogacy is not as different from traditional surrogacy as we’ve always interpreted it to be,” Professor Kindregan said.

Mr. Kindregan has worked with an American Bar Association committee in an effort to standardize surrogacy laws across the country…. (via NYTimes.com)

Since 2007, custody of the twins has been shared between the Hollingsworths’ home and that of Robinson’s, who has three parenting days a week. Judge Schultz’s ruling will give, Robinson, the right to seek primary custody of the children at a trial scheduled for latter this year.

Related articles by Zemanta

• Custody Battle Pits Gay Couple Against Surrogate (blogs.wsj.com)