App. Div. Rules Infertile Wife is not the Legal Mom of Married Couple’s Child

The Law is like a shark.  It has to constantly move forward or it 

infertility and legal Mom

The right decision?

dies. And I think what we got on our hands is a dead shark

A N.J. appeals court decided the infertile wife of a married couple, who arranged for an in vitro fertilization of an ovum furnished by an anonymous donor using the husband’s sperm, and implanted into the uterus of a gestational carrier, was not the legal mother of the child. The Court ruled:

  • The Parentage Act, N.J.S.A. 9:17-38 to -59 does not intend maternity under those circumstances; and
  • The Parentage Act does not violate constitutional principles of equal protection

The Parentage Act, adopted in 1983, was created to ensure that children born out-of-wedlock are treated the same as those born to married parents; and to provide a procedure to establish parentage in disputed cases.

The Parentage Act defines the parent and child relationship as the “legal relationship existing between a child and the child’s natural or adoptive parents.” The definition does not include in vitro fertilization involving an infertile Mom.

An infertile husband who consents to his wife’s artificial insemination by an unknown sperm donor is, however, recognized  as the legal Dad.

The fatal flaw

The dusty, rusty, AARP carrying Parentage Act, enacted into law in 1983,  does not contain the language as written to recognize A.L.S. as the legal Mom. But, in my humble and contrarian opinion, the Parentage Act does not pass constitutional muster; despite the contortions of the App. Div. How can an infertile Dad be granted the automatic right of legal parentage; while an infertile Mom is denied the same right? How can the Court equate being forced to apply for adoption with being granted the status of legal Mom 72 hours after the birth of your child?

The Court’s logic is flawed in refusing to frame the substantive right asserted by Plaintiffs as one of parentage; and instead characterizes the substantive right asserted to a desire to be declared the legal Mom of T.D.S. based on  shared intent and by the most convenient, expedient and immediate means possible.  The Court stated:

“Such a “right,” we find, is neither enshrined in our Constitution nor
so rooted in “the ‘traditions and [collective] conscience of our
people . . . as to be ranked as fundamental.'”

The Appeals Court went on to state that the gender based classification contained in the Parentage Act is substantially related to the achievement of  an important government objective, facilitation of the determination of paternity.

The crisis of infertility

The family unit is the cornerstone of our society. Due to the wonders and progress of science, infertile couples have options to start a “family,” such as artificial insemination or in vitro fertilization. The choice is a family choice, one to be embraced and supported by the Law; not made more difficult.

“A large portion of human life is centered around reproduction, parenthood and raising a family, and the ability to conceive is closely related to self-esteem, identity, sexuality and body image (Kraft et al., 1980; Lalos et al., 1985c; Möller and Fällström, 1991). When a couple becomes increasingly aware of delays beyond their control or that reproduction is perhaps unattainable, an emotional crisis may occur. A crisis is characterized by definite psychological stress and behavioral changes; it is a state where earlier experiences and learned patterns of behavior are not sufficient for understanding and coping with the actual situation (Caplan, 1964). The couple often face emotional turmoil and the crises have to be dealt with individually and within the marital relationship. Oxford Journals, Human Reproduction

This is an antiseptic, cold, analysis of an incredibly important issue. Law in a vacuum. The Court’s response to infertile Moms is, “Hey you can adopt your child.  Why is it so important to be recognized as the legal Mom immediately upon birth? You are not entitled to be declared the legal Mom as a convenience to you.”

Infertility, and the long, stressful, horrific journey a married couple travels to reach a decision about how best to bring a living, breathing child into the family, and then implementing that decision is hardly  based upon convenience, expedience, and the most immediate means possible.  Cold. Very cold.

N.J. Supreme Court or N.J. Legislature…Please step up to the plate.

You may wish to read the full text of, In the Matter of the Parentage of a Child by T.J.S. & A.L.S h/w

Take a few moments to listen to a terrific discussion about the impact of infertility.


About Lawrence "Larry" Berezin

I retired from the private practice of law after a 35-year legal career and fight parking tickets for people like you and me. I love sharing valuable information and beating NYC parking tickets for the driving community in NYC

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