March 02, 2011
Surrogacy, Donated Egg, Who Is Mom?

In a legal case in Camden County New Jersey a couple used his sperm and donated egg to carry a baby to term in a surrogate woman. Now the wife wants her name on the birth certificate and The state Registrar is balking that the wife has no legal standing to claim maternity.

But the state Registrar, an office that records birth certificates, asserted after the child's birth the wife had no legal grounds to claim maternity. Her only option, it said, is stepparent adoption.

The Family Court judge in Camden agreed with the Registrar, which wants to issue a second birth certificate -- this one with the mother's name left blank. And now, a three-judge appellate panel has upheld the Registrar's view.

Since the wife did not contribute either a womb or an egg she really wasn't the mother at the moment of birth. She can only establish a mother's role by acting as one.

What will get more interesting: Embryos constructed using DNA from several donors with the resulting embryo implanted in a future artificial womb. When that baby emerges from the artificial womb who is Mom for the birth certificate? There won't be an obvious candidate.

Share |      Randall Parker, 2011 March 02 11:31 PM  Bioethics Reproduction


Comments
ohwilleke said at March 3, 2011 9:15 AM:

The National Conference on Uniform State Laws has developed a number of model laws to address these issues such as this one recently adopted in Colorado. The core principle is that parent-child relationships are a product of the intent of the parties in these circumstances where an intent is clearly expressed.

Also, Colorado is among the states that have greatly de-emphasized blood ties and even legal relationships in making parenting time and parental responsibility decisions.

diana said at March 3, 2011 11:53 AM:

Actually if I read you correctly there won't be an obvious Mom or Dad, depending on the "embryo construction."

ohwilleke said at March 3, 2011 6:34 PM:

"SECTION 2-120. CHILD CONCEIVED BY ASSISTED REPRODUCTION OTHER THAN CHILD BORN TO GESTATIONAL CARRIER.
(a) [Definitions.] In this section:
(1) “Birth mother” means a woman, other than a gestational carrier under Section 2-121, who gives birth to a child of assisted reproduction. The term is not limited to a woman who is the child’s genetic mother.
(2) “Child of assisted reproduction” means a child conceived by means of assisted reproduction by a woman other than a gestational carrier under Section 2-121.
(3) “Third-party donor” means an individual who produces eggs or sperm used for assisted reproduction, whether or not for consideration. The term does not include:
(A) a husband who provides sperm, or a wife who provides eggs, that are used for assisted reproduction by the wife;
(B) the birth mother of a child of assisted reproduction; or
(C) an individual who has been determined under subsection (e) or (f) to have a parent-child relationship with a child of assisted reproduction.
(b) [Third-Party Donor.] A parent-child relationship does not exist between a child of assisted reproduction and a third-party donor.
(c) [Parent-Child Relationship with Birth Mother.] A parent-child relationship exists between a child of assisted reproduction and the child’s birth mother.
(d) [Parent-Child Relationship with Husband Whose Sperm Were Used During His Lifetime by His Wife for Assisted Reproduction.] Except as otherwise provided in subsections (i) and (j), a parent-child relationship exists between a child of assisted reproduction and the husband of the child’s birth mother if the husband provided the sperm that the birth mother used during his lifetime for assisted reproduction.
(e) [Birth Certificate: Presumptive Effect.] A birth certificate identifying an individual other than the birth mother as the other parent of a child of assisted reproduction presumptively establishes a parent-child relationship between the child and that individual.
(f) [Parent-Child Relationship with Another.] Except as otherwise provided in subsections (g), (i), and (j), and unless a parent-child relationship is established under subsection (d) or (e), a parent-child relationship exists between a child of assisted reproduction and an individual other than the birth mother who consented to assisted reproduction by the birth mother with intent to be treated as the other parent of the child. Consent to assisted reproduction by the birth mother with intent to be treated as the other parent of the child is established if the individual:
(1) before or after the child’s birth, signed a record that, considering all the facts and circumstances, evidences the individual’s consent; or
(2) in the absence of a signed record under paragraph (1):
(A) functioned as a parent of the child no later than two years after the child’s birth;
(B) intended to function as a parent of the child no later than two years after the child’s birth but was prevented from carrying out that intent by death, incapacity, or other circumstances; or
(C) intended to be treated as a parent of a posthumously conceived child, if that intent is established by clear and convincing evidence.
(g) [Record Signed More than Two Years after the Birth of the Child: Effect.] For the purpose of subsection (f)(1), neither an individual who signed a record more than two years after the birth of the child, nor a relative of that individual who is not also a relative of the birth mother, inherits from or through the child unless the individual functioned as a parent of the
child before the child reached [18] years of age.
(h) [Presumption: Birth Mother Is Married or Surviving Spouse.] For the purpose of subsection (f)(2), the following rules apply:
(1) If the birth mother is married and no divorce proceeding is pending, in the absence of clear and convincing evidence to the contrary, her spouse satisfies subsection (f)(2)(A) or (B).
(2) If the birth mother is a surviving spouse and at her deceased spouse’s death no divorce proceeding was pending, in the absence of clear and convincing evidence to the contrary, her deceased spouse satisfies subsection (f)(2)(B) or (C).
(i) [Divorce Before Placement of Eggs, Sperm, or Embryos.] If a married couple is divorced before placement of eggs, sperm, or embryos, a child resulting from the assisted reproduction is not a child of the birth mother’s former spouse, unless the former spouse consented in a record that if assisted reproduction were to occur after divorce, the child would be treated as the former spouse’s child.
(j) [Withdrawal of Consent Before Placement of Eggs, Sperm, or Embryos.] If, in a record, an individual withdraws consent to assisted reproduction before placement of eggs, sperm, or embryos, a child resulting from the assisted reproduction is not a child of that individual, unless the individual subsequently satisfies subsection (f).
(k) [When Posthumously Conceived Child Treated as in Gestation.] If, under this section, an individual is a parent of a child of assisted reproduction who is conceived after the individual’s death, the child is treated as in gestation at the individual’s death for purposes of Section 2-104(a)(2) if the child is:
(1) in utero not later than 36 months after the individual’s death; or
(2) born not later than 45 months after the individual’s death."


SECTION 2-121. CHILD BORN TO GESTATIONAL CARRIER.
(a) [Definitions.] In this section:
(1) “Gestational agreement” means an enforceable or unenforceable agreement for assisted reproduction in which a woman agrees to carry a child to birth for an intended parent, intended parents, or an individual described in subsection (e).
(2) “Gestational carrier” means a woman who is not an intended parent who gives birth to a child under a gestational agreement. The term is not limited to a woman who is the child’s genetic mother.
(3) “Gestational child” means a child born to a gestational carrier under a gestational agreement.
(4) “Intended parent” means an individual who entered into a gestational agreement providing that the individual will be the parent of a child born to a gestational carrier by means of assisted reproduction. The term is not limited to an individual who has a genetic relationship with the child.
(b) [Court Order Adjudicating Parentage: Effect.] A parent-child relationship is conclusively established by a court order designating the parent or parents of a gestational child.
(c) [Gestational Carrier.] A parent-child relationship between a gestational child and the child’s gestational carrier does not exist unless the gestational carrier is:
(1) designated as a parent of the child in a court order described in subsection (b); or
(2) the child’s genetic mother and a parent-child relationship does not exist under this section with an individual other than the gestational carrier.
(d) [Parent-Child Relationship with Intended Parent or Parents.] In the absence of a court order under subsection (b), a parent-child relationship exists between a gestational child and an intended parent who:
(1) functioned as a parent of the child no later than two years after the child’s birth; or
(2) died while the gestational carrier was pregnant if:
(A) there were two intended parents and the other intended parent functioned as a parent of the child no later than two years after the child’s birth;
(B) there were two intended parents, the other intended parent also died while the gestational carrier was pregnant, and a relative of either deceased intended parent or the
spouse or surviving spouse of a relative of either deceased intended parent functioned as a parent
of the child no later than two years after the child’s birth; or
(C) there was no other intended parent and a relative of or the spouse or surviving spouse of a relative of the deceased intended parent functioned as a parent of the child no later than two years after the child’s birth.
(e) [Gestational Agreement after Death or Incapacity.] In the absence of a court order under subsection (b), a parent-child relationship exists between a gestational child and an individual whose sperm or eggs were used after the individual’s death or incapacity to conceive a child under a gestational agreement entered into after the individual’s death or incapacity if the individual intended to be treated as the parent of the child. The individual’s intent may be shown by:
(1) a record signed by the individual which considering all the facts and circumstances evidences the individual’s intent; or
(2) other facts and circumstances establishing the individual’s intent by clear and convincing evidence.
(f) [Presumption: Gestational Agreement after Spouse’s Death or Incapacity.]
Except as otherwise provided in subsection (g), and unless there is clear and convincing evidence of a contrary intent, an individual is deemed to have intended to be treated as the parent of a gestational child for purposes of subsection (e)(2) if:
(1) the individual, before death or incapacity, deposited the sperm or eggs that were used to conceive the child;
(2) when the individual deposited the sperm or eggs, the individual was married and no divorce proceeding was pending; and
(3) the individual’s spouse or surviving spouse functioned as a parent of the child no later than two years after the child’s birth.
(g) [Subsection (f) Presumption Inapplicable.] The presumption under subsection (f) does not apply if there is:
(1) a court order under subsection (b); or
(2) a signed record that satisfies subsection (e)(1).
(h) [When Posthumously Conceived Gestational Child Treated as in Gestation.] If, under this section, an individual is a parent of a gestational child who is conceived after the individual’s death, the child is treated as in gestation at the individual’s death for purposes of Section 2-104(a)(2) if the child is:
(1) in utero not later than 36 months after the individual’s death; or
(2) born not later than 45 months after the individual’s death.
(i) [No Effect on Other Law.] This section does not affect law of this state other than this [code] regarding the enforceability or validity of a gestational agreement.

ohwilleke said at March 3, 2011 6:43 PM:

In this case, the Uniform Statue that NCUSL is proposing would find her to be the mother and him to be the father, because she is the birth mother even if she is not the child's genetic mother, and the husband of the birth mother provided sperm in connection with the procedure, while the sperm or egg donor(s) are not parents. More complicated situations are still simple when there is advanced written consent, which assisted reproduction providers routinely obtain. The pertinent parts of the statute for this case are below (FWIW, the drafter was one of my old professors in law school and I worked with one of the Colorado legislators on the relevant committee reviewing it before Colorado's version was passed):

(1) “Birth mother” means a woman, other than a gestational carrier under Section 2-121, who gives birth to a child of assisted reproduction. The term is not limited to a woman who is the child’s genetic mother.
(2) “Child of assisted reproduction” means a child conceived by means of assisted reproduction by a woman other than a gestational carrier under Section 2-121.
(3) “Third-party donor” means an individual who produces eggs or sperm used for assisted reproduction, whether or not for consideration. The term does not include:
(A) a husband who provides sperm, or a wife who provides eggs, that are used for assisted reproduction by the wife;
(B) the birth mother of a child of assisted reproduction; or
(C) an individual who has been determined under subsection (e) or (f) to have a parent-child relationship with a child of assisted reproduction.
(b) [Third-Party Donor.] A parent-child relationship does not exist between a child of assisted reproduction and a third-party donor.
(c) [Parent-Child Relationship with Birth Mother.] A parent-child relationship exists between a child of assisted reproduction and the child’s birth mother.
(d) [Parent-Child Relationship with Husband Whose Sperm Were Used During His Lifetime by His Wife for Assisted Reproduction.] Except as otherwise provided in subsections (i) and (j), a parent-child relationship exists between a child of assisted reproduction and the husband of the child’s birth mother if the husband provided the sperm that the birth mother used during his lifetime for assisted reproduction.

Engineer-Poet said at March 3, 2011 9:52 PM:
a couple used his sperm and donated egg to carry a baby to term in a surrogate woman.
The wife is not the birth mother.  I'm not up to reading legalese right now, but your grasp of the facts doesn't match the post.
Been There, Done That said at March 4, 2011 10:47 AM:

In fact, my wife and I went through a similar situation. We live in Illinois, where the laws are simpler, but since our gestational carrier was in Wisconsin and gave birth there, we followed Wisconsin law which required a parentage hearing. And my wife's name is on the birth certificate, despite having used donor eggs.

Joe said at March 4, 2011 10:48 AM:

It begs questions of: Is anyone required to have a state issued birth certificate? Are there other remedies to the state determining who the parents are? When you take matters to the state and submit to their jurisdiction don't be angry at what they tell you to do, after all you consented to it.

bearing said at March 4, 2011 11:08 AM:

What is the point of a birth certificate anyway?

(Not a rhetorical question.)

Don said at March 4, 2011 11:14 AM:

Mom is the one making my PB&J sammich.

sol vason said at March 4, 2011 11:24 AM:

Suppose a woman who is a virgin has a child gestated from her egg and donated sperm by a surrogate and suppose the child has the virgin listed on his birth certificate as his mother - could he claim virin birth? Suppose he was not born but rather delivered by C-section. Does that change his claim to virgin birth.

OnlyaBill said at March 4, 2011 11:29 AM:

"bearing said at March 4, 2011 11:08 AM:
What is the point of a birth certificate anyway?
(Not a rhetorical question.)"

Besides the obvious joke of "to prove you were born", it is used to establish/prove legal residency, obtain a SSN and other sundry legal things.

(I am not a lawyer and don't play one on TV)

Lobo Solo said at March 4, 2011 6:11 PM:

@OnlyaBill ... I would think that a birth certificate is ... or should be ... to establish a genetic lineage.

Actually, if the father were smart, he wouldn't insist on putting the wife's name on the birth certificate. As it stands now, he is the only legal parent and in case of divorce, the boy stays with him.

David Friedman said at March 6, 2011 12:37 AM:

The wife should obviously cite Lady Mansfield's rule.

Kralizec said at March 6, 2011 3:05 PM:

David Friedman, will you explain your referenct to "Lady Mansfield's rule," please?

Randall Parker said at March 6, 2011 3:54 PM:

I can find Lord Mansfield's Rule:

"the declarations of husband and wife cannot be admitted to bastardize a child born after marriage".

I am guessing David is making a joke. I can't find Lady Mansfield's rule.

The history of court cases related to cuckolded husbands and divorce and paternity is pretty interesting.

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