Wednesday Weirdness: “Intended Mother” UPDATED

Welcome to Wednesday Weirdness, a recurring theme where we post something truly weird and wacky in adoption or child welfare.

There is always a component of weirdness for a story to make it to this column. Often, there is an attitude of whininess in those featured and a slippery slope or danger underlying the issue.

The slippery slope here is the attempt to add a new type of “mother” to the legal mix–the “intended mother.” This is trying to be included in a surrogacy case, but it doesn’t take too much thought to see that this could be also used by the adoption industry for all kinds of self-serving reasons and dangers to the original family.

Opinion: In vitro adoption rule should be overturned [North Jersey 12/5/11 by Jessica Miles]. Already, the title of the article tries to call surrogacy “in vitro adoption, ” but this is about NOT wanting to undergo adoption.

Married man’s sperm + anonymous egg donor into third party surrogate. The married man’s wife is required to adopt since she is not the genetic mother. The wife just wants to be written on the Original Birth Certificate and be done with it.

In other words, New Jersey is saying there are three ways to be a parent: genetic contribution, giving birth or adopting, but she wants a fourth called “intended parent.” With this fourth type, DESIRE would make you a legal party automatically. It also would apply to a married woman who gets inseminated with donor sperm–the husband would automatically be put on the Original Birth Certificate.

“”The case wound through the courts and the Appellate Division ruled that the intended mother could not be considered the child’s parent unless she adopted the baby. For now, the child has no mother under the law. The couple has appealed this ruling and awaits word from the state Supreme Court. The Parentage Act provides for creation of a parent-child relationship in circumstances including genetic contribution, giving birth or adoption. The act also incorporates a provision that permits a husband, whose wife is artificially inseminated with donor sperm, to be presumed the resulting child’s father without adoption. The Parentage Act does not explicitly address in vitro fertilization. The key questions in the case became: How should the court deal with parentage in in vitro fertilization situations in the absence of explicit statutory guidance, and if the intended mother cannot establish parentage without adoption, does that constitute an equal protection violation by treating infertile men and women differently under the law? The Appellate Court cited the famous case of Baby M for the proposition that the Legislature intended to reserve for itself the power to define parent-child relationships, stating that courts should not add new parentage provisions, such as one addressing in vitro fertilization”

“The court stated that the right the intended mother sought was merely “to create parentage by the most expeditious or convenient method possible.” “ Isn’t that what the adoption industry tries to do?

 

Update: “New Jersey can continue forcing infertile women, but not infertile men, to apply for adoption of their nonbiological children after the state Supreme Court came to a deadlock.     

A married couple, T.J.S. and A.L.S., have spent years challenging gender disparities in the New Jersey Parentage Act. A surrogate, A.F., gave birth to their child in July 2009, from an embryo formed by an anonymous donor’s egg and T.J.S.’s sperm. The surrogate signed away her maternity rights and never asked to be the parent.     

Before the state’s Department of Health and Human Services had intervened, the New Jersey Superior Court initially granted permission to list A.L.S. as the mother.     

In asking to vacate the decision, the agency argued that the New Jersey Parentage Act required A.L.S. to seek an adoption if she wanted to be listed as the mother. The trial judge sided with the agency, and the Appellate Division later affirmed.     

Though one state Supreme Court justice from the seven-member panel could not attend oral arguments in March, the remaining six heard the appeal and reached a 3- 3 deadlock on Tuesday, effectively affirming the law’s constitutionality.     

In her concurring opinion, Justice Helen Hoens held that law’s separate treatment of infertile men and women was grounded in biology.      “If one recognizes that the Legislature could, and did, base its distinction between presumptive rights of men and women on the realities of our physiological differences, then those distinctions can and must survive a constitutional attack,” Hoens wrote.     

She called the controversy a “social policy choice” that called for public debate at the legislative level, rather than a court’s ruling.     

“In the end, the question is not a constitutional one, but one that should be addressed, if at all, by the other branches of government, informed by a thorough and public debate of these profound and significant questions,” she wrote.     

Justice Barry Albin, writing for the dissenters, replied that the case simply involved “unequal treatment.”     

 “This case is about the unequal treatment of similarly situated infertile married women and infertile married men under the law,” the dissent begins.     

 Biological differences alone do not account for the discrepancy, he continued.     

“Despite the obvious anatomical and physiological differences between the infertile husband and wife, once a surrogate knowingly and voluntarily surrenders her parental rights, their situations are not meaningfully different,” Albin wrote. “Denying the infertile wife and her intended child, as here, the same benefits and privileges given to her male counterpart and his intended child bears no substantial relationship to a legitimate governmental purpose and abridges her right to the equal protection of the laws.”     

The judges supporting the law decided the case to defend the rights of a “hypothetical surrogate,” rather than the one in this case, according to the dissent.     

 “This case is not about a hypothetical plaintiff or a hypothetical situation,” he wrote. “Fictional scenarios or simplistic generalizations about infertile women and surrogacy arrangements should not drive the constitutional analysis in this case.”     

Both sets of judges pointed to the case of Baby M., in which a surrogate whisked her biological child out of state. A New Jersey court eventually voided the contract that stripped away her custody rights, in the first decision of its kind.     

While the concurring judges cited this as an example of the surrogates they needed to defend, Albin countered: “This case is only about a gestational surrogate who has no interest in raising the child she has carried for the genetic father and intended mother.”     

The judge lamented that A.L.S. now has to go through “costly and time-consuming” adoption procedures, or wait for the state Legislature to push through reform.     

 Invoking Langston Hughes, Albin called the second solution the basis of a “dream deferred.”

Deadlock Keeps Parents’ Adoption Conflict Afloat

[Courthouse News Service 10/29/12 by Adam Klasfeld]