Berman & Asbel, LLP

NJ surrogacy case troubling for would-be parents

A New Jersey case could be troubling for people seeking to become parents with the help of gestational surrogates.  To read a published article, about the case, click here.  Sean Hollingsworth and Donald Robinson Hollingsworth are a same-sex couple who were married in California (before Prop 8) and who live in New Jersey.  Sean and Donald wanted to have a child.  They made an agreement with Donald's sister, Angela Robinson.  Under the agreement, embryos conceived in vitro with Donald's sperm and an egg from a third-party donor were implanted in Angela's womb.  Angela gave birth to twin girls.  Despite not being the girls' genetic mother, Angela challenged the agreement and sought custody of the girls.

What is troubling for would-be parents in such arrangements is that despite the existence of an agreement made among the parties and despite the fact that Angela was not genetically related to the babies, a New Jersey court nevertheless declared that Angela was the legal mother of the twins.  Angela challenged the agreement claiming that she had been coerced.  She had lost her job and claimed that she was dependent upon her brother for a place to live. 
Eventually, a judge ruled that Sean and Donald would have custody but, it was also reported that Angela would retain visitation rights to the children.
Some observers liken this case to the famous "Baby M" case of the 1980s when Mary Beth Whitehead, who was a surrogate, fought for custody of the baby girl to whom she gave birth.  This case is different and in some ways more troubling.  In the Baby M case, Whitehead was a traditional surrogate - that is, she was impregnated with the sperm of William Stern, the intended father.  Whitehead was the genetic mother of the child and not just the gestational carrier.  In this case, in order to have determined that Angela Robinson was the legal mother of the twins, the judge would have determined that the agreement she made with Sean Hollingsworth was invalid - she claimed that she was coerced into entering the agreement.
When intended parents seek to have a child with the help of a surrogate, the point of the agreement and associated legal proceedings is to establish the intended parents are the legal parents of the child and that the surrogate is not a legal parent.  The Hollingsworth case shows that problems can occur when making such arrangements in circumstances that are not an arms-length transaction.  Here, Angela Hollingsworth had lost her job and had no home and she had moved from Texas to New Jersey to stay with her brother.  This was not an "arms-length" transaction and Angela was in a situation where she could argue that she felt pressured to agree to this arrangement because of her dependence upon her brother for a place to live. While the intended parents eventually won custody, the fact that they even had to fight for custody indicates a serious concern in the form of the surrogacy arrangement.

The preferred practices in surrogacy arrangements that have become well known include:
•Gestational surrogacy i.e. eggs from either the intended mother or a donor, not from the surrogate (traditional surrogacy).
• A detailed contract that clearly indicates the intent of the parties that the surrogate is to have no parental rights related to the child and that the intended parents are to be the legal parents of the child, along with the various financial, medical and other aspects of the agreement.
• Petitioning the court for a pre-birth order to confirm, before the child is born, that the intended parents are to be recorded on the birth certificate as the legal parents of the child.
Now, in addition to those criteria, serious consideration must be given to avoiding using close relatives as a surrogate and instead, preferring an arms-length transaction where it will be harder to assert claims of coercion in making the agreement.

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