ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Friday, January 1, 2010

New Jersey Courts Eschews Solomonic Opinion

Judgement_of_Solomon  Last month, we reported on a New York Times article about all the legal issues surrounding technologically assisted reproduction.  Yesterday, the Times checked in with an update about one of the situations discussed.

As we summarized last time, 

The other story involves Donald Robinson and Sean Hollingsworth, a gay couple residing in New Jersey and married in California in 2008.  Mr. Hollingsworth served as a sperm donor and the couple used a donated egg.  The fertilized egg was then implanted in Mr. Robinson’s sister, who was to act as surrogate and as a doting aunt.  But Ms. Robinson’s relationship with her brother unraveled during the pregnancy,  a difficult one, which produced twins.  The court in Baby M’s state has temporarily awarded shared custody of the children, with a trial slated for April.
According to the New Year's Eve edition of the Times, New Jersey Superior Court Judge Francis P. Schultz has now ruled in favor of the surrogate mother, granting her primary custody of the now three-year-old girls she bore but to whom she is not genetically related.  Note, this was a golden opportunity for the judge to get all Old Testament on the warring factions by splitting the babies.  There being twins, the judge could have done so bloodlessly, thus perhaps forcing a reconciliation between the surrogate mother and her brother.  

According to the Times, Judge Schultz cited to the Baby M case and extended its reasoning.  Judge Schultz found the surrogacy contract here violated the same public policy considerations at issue in Baby M.  The Judge apparently did not consider the lack of a genetic link between the surrogate mother and the twins relevant to the analysis, which still just comes down to the best interests of the children under New Jersey law.

The money quote runs as follows:

“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 odd thing about that language is that the anonymous egg donor could also claim to be the "mother" in this case.  

[Jeremy Telman]

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