For some New Jersey couples who are unable to conceive, surrogacy is the solution. But while the process can bring unbridled joy to parents’ lives, it can also place children, intended parents, donors and gestational mothers in a troublesome legal thicket. The New Jersey Supreme Court did little to sort out this exceptionally tangled and sensitive area of family law when it recently split evenly on a surrogacy case.

Of course, New Jersey is home to the famous Baby M case, in which a couple asked a surrogate to conceive and carry a child to term using the husband’s sperm. When the baby was born, the surrogate wanted to retain the rights to the child. The case went all the way to the State Supreme Court, which ruled that the surrogate should be designated as the legal mother.

Twenty-five years later, the law surrounding surrogacy is still not very well defined. In the present case, a couple used an anonymous egg donor and a gestational surrogate to help conceive a child. They created an agreement in which the surrogate gave up her rights to the baby and, with the help of an attorney, had a court order that the intended mother’s name be placed on the birth certificate.

Things were going well until the attorney general’s office filed a lawsuit to have the mother’s name removed. It argued that the mother could not have her name affixed to the birth certificate when the child was born because she had no genetic relationship with the child. Instead, she would have to apply to adopt the baby if she wanted to be legally recognized as the child’s mother.

The mother argued that she was being treated differently than fathers in a similar situation. If a woman uses a sperm donor to conceive a child, her husband automatically becomes the child’s father. But the appellate court said that the disparate treatment was not discrimination but rather an acknowledgement that mothers play a different role in conception. According to that court, a gestational surrogate has a “temporal, physical and emotional investment” that a sperm donor does not.

The case was appealed to the New Jersey Supreme Court, but because the court reached a 3-3 decision, the appellate court’s ruling stands undisturbed. Couples considering using a surrogate should investigate their legal rights and responsibilities as well as the potential consequences that could develop.

Source: The New York Times, “Court’s Split Decision Provides Little Clarity on Surrogacy,” Kate Zernike, Oct. 24, 2012