A New Jersey trial judge ruled yesterday (30 December 2009) that a gestational surrogate mother is the legal mother of twins she delivered after artificial insemination. A gestational surrogate mother is genetically unrelated to her child, while a traditional surrogate mother contributes the egg. In this case the mother, named Robinson, had carried to term the egg of an anonymous donor fertilized by her brother, named Hollingsworth. Hollingsworth was a partner in a gay marriage. For five months after birth, the twins had lived with the Hollingsworths before Robinson filed for custody. A custody trial will take place next spring.

            Gestational surrogate parenting and traditional surrogate parenting are types of reproductive technology at the leading edge of custody law. They arise out of couples’ desire to have genetically related offspring when the partnership lacks viable eggs, viable sperm, or the ability to carry a fetus to term.

            Here are the legal elements of these types of cases:

Gestational Surrogate

Surrogate

1. Valid contract.

1. Valid contract.

2. Not against public policy.

2. Not against public policy.

3. Child genetically unrelated to birth mother.

3. Child genetically related to birth mother.

             What the Robinson trial court decision, and the previous New Jersey 1988 Baby M decision tell us is that birth mothers may choose to override surrogacy contracts and claim custody of offspring whether the child is genetically related to them or not. New Jersey is generally considered an important source of authority on emerging trends in family law, and the maternal right to override both types of surrogacy contracts may become the majority view nationwide. 

            A different approach is to grant less rights to a mother who is biologically unrelated and more rights to the mother who is related; perhaps providing the latter with a post-partum right-of-recision as already exists in some states like Virginia, for cases of adoption.

            However the Robinson case is resolved on surrogacy issues, the five-month delay between the birth and the filing of the custody suit, and the possible eighteen-month lag time between birth and trial has to raise concern about the twins’ best interests.

[Tweet: NJ trial judge rules gestational surrogate has same right to seek custody as traditional surrogate mom. http://tiny.cc/ilb1U]