Infertile Men vs. Infertile Women: Is There a Double Standard?
In one state, infertile men who use donor sperm to have babies with their partners are automatically named the legal father. Infertile women who use donor eggs and surrogates must adopt. Is this discrimination?
John and Maria couldn’t have a baby due to John’s infertility, so they used anonymous donor sperm from a sperm bank to conceive. When the New Jersey couple’s baby was born, John’s name was automatically put on the birth certificate as the child’s father — without the need to go through the adoption process.
Another husband and wife in New Jersey found themselves in a similar situation, only this time it was the woman who was infertile. The couple decided to have a baby using an anonymous donor egg fertilized by the husband’s sperm and carried by a surrogate.
To prevent any difficulties down the road with parentage, the couple took extra steps to make sure they had all their legal ducks in a row, including having the surrogate legally renounce her right to the child, which she did, and requesting a judge to provide an order that the couple’s names be put on the birth certificate, just in case there was any confusion. The judge agreed and when the baby was born, the infertile woman was listed on the birth certificate as the child’s mother.
A few months later, however, another judge ordered her name stripped from the birth certificate unless and until she formally adopted her child.
Does this sound like a double standard? It did to the infertile woman, whose name is withheld in court documents for privacy reasons. On the basis of gender discrimination, the woman appealed the ruling and requested that her name be placed back on the birth certificate, just the same as in the case of John and other infertile men who have children.
Did she win her case?
No. In what the New Jersey Law Journal recently named as one of the most significant cases argued before the New Jersey Supreme Court over the past year, judges on the highest court in the state deadlocked on the issue, with three judges agreeing with the woman and three reaffirming that she needed to formally adopt in order to be recognized as the mother. In a split decision, the ruling of the lower court stands, meaning the space for “mother’s name” on the child’s birth certificate remains blank — three years after the child was born.
What justification is given for this apparent difference in legal standards between infertile women vs. infertile men?
According to Bari Weinberger, a family law attorney in Parsippany, New Jersey, the key difference for infertile women unable to carry a baby is the use of a surrogate. “An infertile husband can claim paternity [fatherhood] because of the sperm donor’s lack of physical and emotional investment in the child’s creation, ” she explained to BabyZone. “For infertile women, the surrogate, in the eyes of the law, is viewed as having parental rights that are deemed worthy of protection. This is the rationale for why an infertile woman can’t claim automatic motherhood.”
In an odd twist, the New Jersey legislature tried to pass a law last year that would have allowed for infertile women to be able to do just that: claim automatic motherhood, as long as the surrogate had signed off on all parental rights. Right before a decision was handed down in this case, however, New Jersey Gov. Chris Christie vetoed the bill, according to the New York Times.
Still, thanks in part to Sarah Jessica Parker, Neil Patrick Harris, Jimmy Fallon, and other celebrities who have used surrogates, this option for becoming a parent is more mainstream than ever before. And in other states, rules have been passed to provide rights to women using surrogates. In 2012, Gov. Jerry Brown of California signed a law setting out guidelines for gestational surrogacy agreements, with New York lawmakers proposing a similar bill. Connecticut now has a law allowing same-sex couples to be named as parents on the birth certificates of children born to surrogates.
But in other states, laws concerning infertile women and their right to motherhood still have a long way to go. Will it take a 3-year old child in New Jersey who is, for all legal intents, motherless, to get there? It’s easy to think it might. After all, the ultimate last stop after exhausting all possible appeals is arguing your case in front of the U.S. Supreme Court.
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