New Jersey Supreme Court upholds surrogacy law

[JURIST] The Supreme Court of New Jersey [official website] on Wednesday upheld [opinion, PDF] a decision by a New Jersey appellate court finding that an infertile woman is not the legal parent of a child conceived using her husband's sperm and carried by a surrogate. The court determined that the New Jersey Parentage Act [text, PDF] requires a woman in that situation to adopt the child before she can be said to be a legal guardian. Lawyers for the parents in the case had argued that the law is discriminatory because it places infertile men and infertile women in a different legal position; under the same law, an infertile man is considered the legal guardian of a child that is conceived using a sperm donor and carried by his wife. The court determined, however, that the law does not violate the Equal Protection Clause [text] of the Constitution because the different treatment of men and women is based on actual physiological differences between the sexes.

Courts around the world continue to grapple with legal issues surrounding surrogacy. In August a judge for Australia's Queensland District Court defined the term "conception" [JURIST report] as the act of getting pregnant. The definition was crucial because the Queensland Surrogacy Act of 2010 [text, PDF] requires that surrogacy arrangements be signed "before the child is conceived." In May, the New York Court of Appeals, the state's highest court, issued two rulings [JURIST report] expanding the rights of nonbiological gay and lesbian parents. In one case, the court ruled [opinion, PDF] 7-0 that a lesbian can assert parental rights over the biological child of her partner, reversing a lower court decision [JURIST report]. In a separate case, the court ruled [opinion, PDF] 4-3 that a lesbian could seek child support from her former partner.

 

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