Judge Awards Legal Status to Surrogate of Gay Couple's Kids

A New Jersey gay couple has lost a court case, with the surrogate mother of their twin daughters being named as the legal mother despite the fact that the surrogate has no genetic relation to the girls.

As the children's legal mother, Angelia G. Robinson can now pursue primary custody, reported the New York Times in a Dec. 30 article. The girls were conceived in vitro in 2006 using a donated ovum and sperm provided by Sean Hollingsworth, the husband of Ms. Robinson's brother, Donald Robinson Hollingsworth. The fertilized ovum was then implanted in Ms. Robinson, who carried the twin girls to term. The fertilization of the ovum in vitro and subsequent implantation means that Ms. Robinson served as what is called a gestational surrogate, typically a woman with no genetic relationship to the child or children she bears on behalf of others.

The girls were born in October of 2006, and were given into the care of the male couple, who live in Jersey City. But the following March, Ms. Robinson took her brother and his husband to court, claiming she had been forced to serve as the surrogate and seeking custody of the girls.

The court decision awarding Ms. Robinson recognition as the legal mother clears the way for her upcoming court case seeking custody of the children. The decision drew on precedent established in a 1988 case involving a traditional surrogate, whose own egg was fertilized in vivo through artificial insemination using sperm from a man who was part of a couple seeking to become parents. That case was settled by the New Jersey Supreme Court, which upheld the traditional surrogate's rights as the genetic parent.

"The surrogacy contract is based on principles that are directly contrary to the objectives of our laws," the 1988 ruling said. "It guarantees the separation of a child from its mother; it looks to adoption regardless of suitability; it totally ignores the child; it takes the child from the mother regardless of her wishes and maternal fitness."

Superior Court Judge Francis B. Schultz referred to the earlier ruling, posing the question in his decision, "Would it really make any difference if the word 'gestational' was substituted for the word 'surrogacy' in the above quotation? I think not."

Court cases involving gestational surrogates have found against the surrogates in a number of states, though a case in Michigan found for the surrogate, the article said. If the New Jersey decision withstands appeal, "that suggests that gestational surrogacy is not as different from traditional surrogacy as we've always interpreted it to be," said Suffolk University Law School professor Charles P. Kindregan, who specializes in reproductive technology law.

The ruling has the potential to complicate the already-complex laws in New Jersey regarding surrogacy. Among other requirements, New Jersey law stipulates that surrogates may not receive a fee for carrying children, and imposes a three-day period before the surrogate gives the child over to the intended parents.

Ms. Robinson hailed the decision as "one more step in helping to insure stability and peace in the lives of our girls."

Ms. Robinson's lawyer, Harold J. Cassidy--who also represented the plaintiff in the 1988 case--praised the ruling, declaring that surrogacy is "an exploitation of women."

The Hollingsworth's attorney, Alan S. Modlinger, noted that the decision could impact gay and lesbian families--especially families headed by two men--who must often resort to methods such as surrogacy. Moreover, parenting as a social and legal option is on the uptick for same-sex couples, as marriage equality makes fitful advances, noted an Aug. 11, 2008 Associated Press article.

In neighboring New York, an arrangement with a surrogate culminated in the births of twin daughters for actors Matthew Broderick and Sarah Jessica Parker this autumn.