What are the parental rights of a woman who is having someone else bear and give birth to a child? It depends on the specific facts of the case, as recently demonstrated in a case decided by the New Jersey Appellate Division.

Here are the players in this drama, and their story:  We start with Husband and Wife – who cannot have a child together because Wife is infertile.  So, they take Husband’s sperm and have an in vitro fertilization with the ovum of an anonymous Donor. The embryo created by this process is then placed in the uterus of a different female, with whom Husband and Wife have signed a contract for that person to be the Carrier of the fetus until birth. Thus, everyone has some biological relationship to the child except the Wife.

Before the birth of the child, Husband and Wife went to get a court order directing that they be listed as the parents on the birth certificate when the child was born. The Carrier voluntarily consented to this request, and agreed to relinquish any rights she may have had to the child. The judge granted the request; however, since the law requires that the Carrier cannot relinquish her parental rights until at least 72 hours after the birth of the child, the court’s order was made effective only 72 hours after the birth and only if the Carrier did relinquish her rights.

Into the picture steps the State Registrar, the agency that has the legal obligation to correctly record birth certificates. Not so fast, the Registrar says. The New Jersey Parentage Act does not permit a pre-birth declaration of parentage in these circumstances – where there is no actual relationship between Wife and the child. The application can only be made after birth because of the 72 hour waiting period. Wife cannot be presumed or declared to be the Mother prior to birth.

But that’s unfair and unconstitutional says the Wife. After all, the same Parentage Act presumes that a husband is the father of the child that his wife has borne. Shouldn’t she be presumed to be the mother of the child her husband has fathered?

“No” said the Appellate Division. First, the law is clear that the Carrier (the birth mother) has to be given the 72 hour period in which to decide to relinquish her rights. Also, declaring Wife to be the mother at the time of birth would simply be inaccurate. There are three ways by which someone can legally be a parent: (1) genetic contribution (providing the sperm or the egg); (2) actually giving birth to the child; (3)adoption.  Husband fits category (1), but Wife only had category (3) – adoption – available to her. She therefore would have to formally adopt the child. The situation would have been different if Wife had actually carried the child to birth, even if she did not provide the egg.

Her constitutional argument was also rejected. The Appellate Division said there is nothing unfair about the statute. If the Husband fathers a child by a woman who is not his wife, the presumption does not apply. Nor is an infertile husband presumed to be the father of a fertile wife.  There is nothing unfair or unconstitutional when the law reflects the actual facts.

The story will have a happy ending, though, even if the Wife does have to go through the formal adoption process. Adoption establishes the same relationships, rights and responsibilities between the child and the adoptive parent as if the child had actually been born to the adoptive parent.

Looks like the Law got this one right. The rights of all the parties, including the birth mother, were protected, and the intentions of all the parties — that Wife be the mother — will be honored.