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NJ Court Rules Mother Must Adopt Child Conceived Through IVF

By Susan Brinkmann, OCDS Staff Journalist In a decision that could have a far-reaching impact on couples who choose in vitro fertilization (IVF) and surrogacy to start a family, a New Jersey court has ruled that a woman cannot be named the mother of a child she did not give birth to, and with whom she has no genetic links. New Jersey's Star-Ledger is reporting that a professional couple from Union County arranged for a surrogate to carry a baby conceived by fertilizing an egg from an anonymous donor with the husband’s sperm. The dispute arose when the so-called "intended mother" listed her name on the infant's birth certificate. According to the state's Bureau of Vital Statistics, the only way the "intended mother's" name can appear on the birth certificate is if she adopts the child because she did not give him birth and the child has none of her DNA. Experts are saying this case, which has the potential to affect thousands of couples in similar situations, is exposing the law’s inability to keep up with advances in reproductive technology. "We’re operating under a law that’s more than a quarter of a century old," said Donald Cofsky, a Haddonfield attorney representing the "intended mother" and her husband, who are identified in court papers only by their initials. "My clients believe this is something that has to be addressed — not just for them but for everybody else in this situation." In the ensuing legal battle, Cofsky and his clients claimed the "intended mother" was being discriminated against because, under the state’s parentage laws, a husband is always presumed to be the father of a baby even if his sperm isn’t used for conception. But a wife who doesn’t use her egg or her body for the pregnancy is never the presumed to be the mother. Instead, she has to adopt the baby, a process that can take months and cost up to $6,000, he said. "The law says a mother has to be genetic, biological or adoptive," Cofsky said. "A father doesn’t have to be any of those." In a 28-page decision, an appellate panel said there was no discrimination — just a deficiency in state law which does not address the newer reproductive technology of in vitro fertilization. The appellate court decided the case based on laws adopted after the controversial 1988 Baby M case in which surrogate mother Mary Beth Whitehead fought to keep the child she had promised to carry for William and Elizabeth Stern. But the Stern's baby was conceived through artificial insemination rather than through IVF. The appellate panel noted that New Jersey parentage laws only deal with artificial insemination, but said it's up to the Legislature, not the court, to decide the status of the intended mother of a baby conceived through in vitro fertilization. "In the absence of a legislative response, plaintiffs have asked us to rewrite the statute to accommodate their circumstance,’’ Appellate Judge Anthony Parrillo wrote for the three-judge panel. "We decline the invitation." Cofsky admits the panel's decision was "extremely well-written, but said it was also an "extremely conservative one." "They did not take an expansive view," he said. "I wasn’t asking them to rewrite the law. I was asking them to interpret the existing law in a way my clients felt would be a gender-neutral fashion. It raises more questions than it answers." State Sen. Loretta Weinberg (D-Bergen) a champion of family issues, said it’s a topic the Legislature needs to address. "It certainly is a new area that we should be doing some research into to see what is appropriate," she said. "As we move ahead in the scenario of helping people become parents in a variety of ways, I would assume the law might have to catch up to that.’’ © All Rights Reserved, Living His Life Abundantly®/Women of Grace®