gestational surrogacy law in New Jersey

Topics: Children
31 Dec 2009

From: Ervan Darnell

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A New Jersey case just awarded (probably) guardianship to the surrogate
gestational (not genetic) birth mother of a girl despite the surrogate
having made an arrangement with her brother and his partner as the adoptive
couple [1].


> Prof. Charles P. Kindregan, ... said the ... ruling ... could expand the
rights of gestational surrogates if it stood.

This is incidental, but amusing. The ability to abrogate a contract does
not expand your rights, it diminishes them. It means that other parties
whom you wish to contract have been prevented from offering some mutually
acceptable contracts. In this case, giving surrogates the "right" to
abrogate their contract denies the right to profit from their services to
some degree as fewer will be willing to pay for surrogacy, or they will pay
less for it.

Here is the more substantial part:

> "The surrogacy contract," the Baby M court found, "is based on prin=
ciples
that are directly contrary to the objectives of our laws. 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."

The last clause is bogus. She signed a contract making her wishes clear.
The "separation" clause is also dubious because it's already the case that
women can abandon their babies (in most states). "Welfare of the child" is
an interesting clause though. I grant that some relevance (often comes in
divorce proceedings to override any agreement between the partners). You
shouldn't be able to contract away the child's interest. But, I think
there is a fix to this. The mother can refuse to be the guardian. That's
her legal privilege already. If she surrenders that guardianship in
contract, it's done. Her right to her body is greater than the baby's righ=
t
to live with its (unwilling) gestational birth mother, as the law now
insists. Now, the question of the child's interest is between an adoptive
couple (an uncle even in this case) that wants the baby and some random
stranger. Absent some serious problem with the adoptive parents, there
should be no reason to award custody to anyone else.

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[1] http://www.nytimes.com/2009/12/31/us/31surrogate.html?_r 2&ref nyre=
gion

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A New Jersey case just awarded (probably) guardianship to the surrogat=
e gestational (not genetic) birth mother of a girl despite the surrogate ha=
ving made an arrangement with her brother and his partner as the adoptive c=
ouple [1].

>=A0Prof. Charles P. Kindregan, ... s=
aid the ... ruling ...=A0could expand the rights of gestational surrogates =
if it stood.
This is incidental, but amusing. =A0T=
he ability to abrogate a contract does not expand your rights, it diminishe=
s them. =A0It means that other parties whom you wish to contract have been =
prevented from offering some mutually acceptable contracts. =A0In this case=
, giving surrogates the "right" to abrogate their contract denies=
the right to profit from their services to some degree as fewer will be wi=
lling to pay for surrogacy, or they will pay less for it. =A0

Here is the more substantial part:
=
> "The surrogacy contract," the Baby M court found, "is based=
on
principles that are directly contrary to the objectives of our laws. 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."
The last clause is bogus. =A0She signe=
d a contract making her wishes clear. =A0The "separation" clause =
is also dubious because it's already the case that women can abandon th=
eir babies (in most states). =A0"Welfare of the child" is an inte=
resting clause though. =A0I grant that some relevance (often comes in divor=
ce proceedings to override any agreement between the partners). =A0You shou=
ldn't be able to contract away the child's interest. =A0 But, I thi=
nk there is a fix to this. =A0The mother can refuse to be the guardian. =A0=
That's her legal privilege already. =A0If she surrenders that guardians=
hip in contract, it's done. =A0Her right to her body is greater than th=
e baby's right to live with its (unwilling) gestational birth mother, a=
s the law now insists. =A0Now, the question of the child's interest is =
between an adoptive couple (an uncle even in this case) that wants the baby=
and some random stranger. =A0Absent some serious problem with the adoptive=
parents, there should be no reason to award custody to anyone else.

------------
[1]=A0 om/2009/12/31/us/31surrogate.html?_r 2&ref nyregion">http://www.nyt=
imes.com/2009/12/31/us/31surrogate.html?_r 2&ref nyregion

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