Hudson County, N.J., Trial Judge Declares Gestational Surrogacy Contract Involving Gay Male Couple Unenforceable

A New Jersey Superior Court Judge ruled on December 23, 2009, that a gestational surrogate who has no genetic relationship to the twin girls she bore by agreement with a gay male couple is the legal mother of the children. The case illustrates the complications that may ensue when same-sex couples seek to have children by involving third parties. We first heard about this case last month through press reports, but have just come into possession of a copy of the court’s unpublished decision in A.G.R. v. D.R.H. & S.H., Docket # FD-09-001838-07 (N.J. Superior Ct., Hudson County, Dec. 23, 2009).

The opinion by Superior Court Judge Francis B. Schultz is vague about some of the dates, so reconstructing the factual history requires some guesswork.

It seems that D.R. and S.H., a gay male couple who reside in New Jersey, registered as domestic partners in that state under the Domestic Partnership Act. They sought to have a child, and D.R.’s sister, A.G.R., volunteered to be a surrogate for them. When it turned out that her own eggs were not suitable for the procedure, eggs were obtained from an anonymous woman. S.H. was the sperm donor. A doctor performed the insemination. A.G.R., D.R. and S.H. entered into written agreements spelling out the rights and obligations of the parties, under which A.G.R. agreed to consent to the termination of any parental rights and the adoption of the child by D.R.

The court also states that D.R. and S.H. were married in California, but does not mention a date, so it seems likely that they were married subsequent to the main events in this case, as same-sex marriage did not become available in California until the spring of 2008. The New Jersey Attorney General’s Office during the Corzine Administration (which ended January 19) took the position that same-sex couples validly married in other states would be treated as civil union partners for purposes of New Jersey law. However, apart from reciting that the men married in California and registered as domestic partners in New Jersey, Judge Schultz never mentions their legal status as partners again in the opinion and apparently placed no weight on that factor in reaching his conclusions.

Twin girls were born on October 4, 2006. A.G.R. visited the girls in the hospital and after they were released to the custody of D.R. and S.H. until January 2007, when their dispute arose. After A.G.R. filed suit seeking a declaration of her legal status as parent of the twins, the court ordered that visitation resume. Since September 2007, A.G.R. has had three full days of parenting time with the twins every week, and D.R. and S.H. have had the twins the other four days.

In her lawsuit, A.G.R. claimed that as birth mother of the twins she was entitled to the legal status of a parent. D.R. and S.H. pointed to the various agreements that were executed, under which A.G.R. had agreed in advance to allow the twins to be adopted by her brother, which necessarily terminated her parental rights. A.G.R. countered that the agreement to give up the twins for adoption was not valid under New Jersey law because of the New Jersey Supreme Court’s 1988 decision In the Matter of Baby M., 109 N.J. 396. In that case, the dispute was between a surrogate (who was also the egg donor, and thus genetically related to the child she bore) and the different-sex married couple who contracted with her to produce a child for them, using the husband’s sperm. The surrogate was compensated financially.  The New Jersey Supreme Court found the element of compensation objectionable, tantamount to baby-selling prohibited by N.J. law, and also objected to a biological mother consenting to adoption in advance of the birth of the child. Thus, the court held that the surrogacy agreement was invalid and unenforceable as a matter of public policy, and that the child’s legal parents were the surrogate mother and the genetic father, giving the surrogate mother the right of visitation after concluding that it was in the best interest of the child to live with its genetic father and his wife.

D.R. and S.H. sought to distinguish Baby M., because A.G.R. is not the genetic parent of the twins. They also argued that A.G.R. was a volunteer, not a paid surrogate. Judge Schultz rejected these distinctions as being legally insignificant. The judge pointed out that the court in the Baby M case did not focus on the surrogate’s genetic tie to the child, and had relied on various factors apart from compensation in reaching its determination that surrogacy agreements were contrary to public policy in New Jersey.

"It was pointed out in Baby M that the Parentage Act was silent as to acknowledging surrogacy agreements and that Court suggested that the silence of the Legislature suggested that the Legislature chose not to recognize surrogacy. If that interpretation of the Legislature’s silence is correct, the additional twenty-one years of silence as to surrogacy agreements speaks even louder," wrote Judge Schultz.

"It also was the position of the Court that surrogacy as a whole is bad for women even if in any one particular case the surrogacy agreement is entirely satisfactory to all parties involved. Baby M did not find a constitutional right for a surrogate mother to the companionship of her child only because that issue was moot since the surrogacy contract was invalid, and the parental rights were not properly terminated. The Parentage Act gave both the birth mother, because she gave birth to the child, the status of parent as well as the man who contributed the genetic link. This is because ‘the natural mother, may be established by proof of her having given birth to the child,’ NJSA 9:17-41(a), and ‘the natural father may be established . . . on a blood test or genetic test,’ NJSA 9:17-41(b)."

"Essentially," the judge continued, "the Supreme Court had no difficulty with surrogacy agreements so long as there was no payment and so long as the surrogate mother is given the right to change her mind. While the Baby M decision did not distinguish between ‘gestational’ carriers and ‘surrogate’ mothers, the Court was well aware of the preservation of sperm and eggs and embryo implantation," procedures which are mentioned in passing in the Baby M opinion. In Baby M, the New Jersey Supreme Court had also stressed psychological issues, particularly the bonding between a pregnant woman and her expected child, as a factor that counseled against enforcing agreements to terminate parental rights for adoption that were made before the child is born.

Judge Schultz disagreed with the defendants’ argument that the lack of a genetic tie between A.G.R. and the twins made the case distinguishable from Baby M. "The public policy considerations enumerated above from Baby M are far reaching and unrelated to a strict genetic connection," Schultz insisted. "The lack of plaintiff’s genetic link to the twins is, under the circumstances, a distinction without a difference significant enough to take the instant matter out of Baby M."

Schultz also rejected the significance of California cases holding that the intent of the parties upon entering into a surrogacy arrangement would later be binding when a surrogate changed her mind and sought parental status. Schultz pointed out that California has a different statutory framework and has embraced different public policies from New Jersey. "If the underlying principles in California were consistent with the principles in New Jersey, then the reasoning in the California case upholding the gestational carrier agreement might have been tempting," Schultz wrote. "However, New Jersey’s law as expressed in Baby M and the California case had so many conflicting underpinnings that this judge sees no reason to follow the California law or that of other jurisdictions for the same reason."

"The parties’ intent in voluntarily entering into the surrogacy agreement was of no significance under Baby M," wrote Schultz. "This clearly suggests that arguments derived from intent such as detrimental reliance and estoppel would be of no significance either."

Thus, Schultz concluded that A.G.R. was entitled to summary judgment on her claim to be a legal parent of the twins. Schultz declared that the surrogacy agreement was void and could not serve as a basis for terminating A.G.R.’s parental rights or implementing her consent to having the children adopted by her brother. At the same time, Schultz found that S.H. "Is the legal father of the twins."

This ruling on the motion does not end matters, since the declaration that A.G.R. and S.H. are the legal parents of the twins leaves open questions of custody. When legal parents are not living together and cannot work out an amicable agreement on custody and visitation, a court will decide these issues based on its determination of what would be in the best interest of the child. Having been declared a legal parent of the twins, A.G.R. is now in an equal position with their legal father, S.H., to contend for custody. The opinion does not indicate whether A.G.R. was seeking to be a custodial parent, or merely seeking to assert parental rights to visitation and a decisional role in the upbringing of the children.

A.G.R. is represented by Harold J. Cassidy. D.R.H. and S.H., the fathers, are represented by Alan S. Modlinger. Daniel A. D’Allessandro served as Law Guardian appointed by the Court to represent the interest of the twins in this lawsuit.