Judge Awards Legal Status to Surrogate of Gay Couple’s Kids

by Kilian Melloy
Thursday Dec 31, 2009

A New Jersey gay couple has lost a court case, with the surrogate mother of their twin daughters being named as the legal mother despite the fact that the surrogate has no genetic relation to the girls.

As the children's legal mother, Angelia G. Robinson can now pursue primary custody, reported the New York Times in a Dec. 30 article. The girls were conceived in vitro in 2006 using a donated ovum and sperm provided by Sean Hollingsworth, the husband of Ms. Robinson's brother, Donald Robinson Hollingsworth. The fertilized ovum was then implanted in Ms. Robinson, who carried the twin girls to term. The fertilization of the ovum in vitro and subsequent implantation means that Ms. Robinson served as what is called a gestational surrogate, typically a woman with no genetic relationship to the child or children she bears on behalf of others.

The girls were born in October of 2006, and were given into the care of the male couple, who live in Jersey City. But the following March, Ms. Robinson took her brother and his husband to court, claiming she had been forced to serve as the surrogate and seeking custody of the girls.

The court decision awarding Ms. Robinson recognition as the legal mother clears the way for her upcoming court case seeking custody of the children. The decision drew on precedent established in a 1988 case involving a traditional surrogate, whose own egg was fertilized in vivo through artificial insemination using sperm from a man who was part of a couple seeking to become parents. That case was settled by the New Jersey Supreme Court, which upheld the traditional surrogate's rights as the genetic parent.

"The surrogacy contract is based on principles that are directly contrary to the objectives of our laws," the 1988 ruling said. "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."

Superior Court Judge Francis B. Schultz referred to the earlier ruling, posing the question in his decision, "Would it really make any difference if the word 'gestational' was substituted for the word 'surrogacy' in the above quotation? I think not."

Court cases involving gestational surrogates have found against the surrogates in a number of states, though a case in Michigan found for the surrogate, the article said. If the New Jersey decision withstands appeal, "that suggests that gestational surrogacy is not as different from traditional surrogacy as we've always interpreted it to be," said Suffolk University Law School professor Charles P. Kindregan, who specializes in reproductive technology law.

The ruling has the potential to complicate the already-complex laws in New Jersey regarding surrogacy. Among other requirements, New Jersey law stipulates that surrogates may not receive a fee for carrying children, and imposes a three-day period before the surrogate gives the child over to the intended parents.

Ms. Robinson hailed the decision as "one more step in helping to insure stability and peace in the lives of our girls."

Ms. Robinson's lawyer, Harold J. Cassidy--who also represented the plaintiff in the 1988 case--praised the ruling, declaring that surrogacy is "an exploitation of women."

The Hollingsworth's attorney, Alan S. Modlinger, noted that the decision could impact gay and lesbian families--especially families headed by two men--who must often resort to methods such as surrogacy. Moreover, parenting as a social and legal option is on the uptick for same-sex couples, as marriage equality makes fitful advances, noted an Aug. 11, 2008 Associated Press article.

In neighboring New York, an arrangement with a surrogate culminated in the births of twin daughters for actors Matthew Broderick and Sarah Jessica Parker this autumn.

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor. He also reviews theater for WBUR. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.


  • , 2010-01-04 15:56:31

    Contrary to the opinion of the Surrogate’s attorney, the trial court’s decision treats woman with distain by suggesting women are incapable of contracting. The California Supreme Court in Johnson v. Calvert got it right and took five steps in the right direction. The New Jersey Trial Judge got it wrong and attempts to take us back. For the Court’s consideration, it may want to recognize that Women’s suffrage, while largely addressing the right to vote, was expressly recognized in 1920. To that end, women are entitled the same rights as men -- including the right to contract. I trust the decision won’t stand the test of appeal.

  • , 2010-01-05 14:55:45

    As a gestational surrogate, I find this decision to be so appalling and incredibly unfortunate for the parents, the men who set out to create a family. Having carried a baby myself for another couple, I cannot fathom how a woman who has no biological connection to the babies she carried can claim to rightfully be their mother against the wishes of her brother. Surrogacy is a gift to the intended parents, and how you can presume to take it away, to dash the hopes and dreams of the intended parents is so incredibly disheartening and in my opinion just plain wrong. I hope they appeal this wayward legal decision and win back their twins. If you want to read about what a surrogacy can and should be please take a look at my book or my website which I hope will restore your faith in surrogates. They are generally wonderful, caring, generous women who only want to help someone else have the joy of a family.

  • , 2010-01-05 17:38:07

    I think this is a great step towards surrogacy. Even without a genetic link, the birth mother should have some standing, especially in this case where there is no mother. Not to mention, I am sure the father will have visitation so it is no different than a child in a split home. It is unfortanute for the intended parents, but nobody knows how you will bond with a child during the 9 months of nurturing them. That is a risk that they are taking when doing this. And what about all those children that are in need of a home. If someone wants to be a parent so bad, maybe they should look at adoption.

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