In the Matter of the Parentage of a Child by T.J.S. and A.L.S., A-130 September Term 2010; Supreme Court; per curiam opinion; concurrence by Hoens, J.; dissent by Albin, J.; decided October 24, 2012. On certification to the Appellate Division, 419 N.J. Super. 46 (App. Div. 2011). [Sat below: Judges Parrillo, Yannotti and Skillman in the Appellate Division; Judge Dortch in the Chancery Division, Family Part.] DDS No. 20-1-8062 [48 pp.]

Plaintiffs T.J.S. and A.L.S. are a married couple who have been unable to have a child together because A.L.S. is not able to carry a pregnancy to term. They decided that T.J.S. would contribute sperm that would be used to fertilize the ovum of an anonymous donor. They entered into an agreement with A.F., a woman who is not related to either plaintiffs or the anonymous donor of the ovum, in which A.F. agreed to have the resulting embryo implanted into her uterus. She carried that pregnancy to term and gave birth to a child in July 2009.

Shortly before and in anticipation of the birth, plaintiffs sought an order directing that the child’s birth certificate identify A.L.S. as the child’s mother. The trial court entered the order. However, after the birth certificate was issued, the Department of Health and Human Services, Bureau of Vital Statistics, which had not been given notice of plaintiffs’ application, moved to vacate the order, contending that there was no basis in law for the relief that plaintiffs had requested.

The trial court granted the department’s application and vacated the order. The Appellate Division affirmed.

Plaintiffs argue that the Parentage Act, N.J.S.A. 9:17-38 to -59, violates the right to equal protection because it does not recognize an infertile wife as the legal mother of her husband’s biological child born to a gestational carrier but treats an infertile man as the father of a child born to his artificially inseminated wife.

Held: The judgment of the Appellate Division — that the Parentage Act’s treatment of an infertile man as the father of a child born to his artificially inseminated wife but its failure to treat an infertile woman as the mother of her husband’s biological child born to a gestational carrier does not violate the Equal Protection Clause because the distinction is based on actual reproductive and biological differences — is affirmed by an equally divided court.

Justice Hoens, concurring, would affirm the judgment of the Appellate Division largely for the reasons expressed below. She concurs that the plain language of the Parentage Act, in resting maternity on biology or genetics, makes plain that the child is genetically the child of the anonymous ovum donor and biologically the child of A.F. She says nothing in that distinction offends equal protection or deprives A.L.S. of any recognized right.

She says plaintiffs seek to avoid the unavoidable fact that their child is biologically related to A.F., to whom the Legislature has afforded statutory rights and to whom the Constitution grants protection. Plaintiffs’ desire to avoid complying with the adoption process cannot supplant the clear legislative preference or the constitutional commands that are based on the biological connection between A.F. and the child.

Plaintiffs’ efforts to be acknowledged as the parents of the child from the earliest possible moment should be addressed to the Legislature since choosing how to balance the rights of infertile men and women and the women who carry children to term and give birth is a matter uniquely suited to the Legislature, which is ordinarily the body vested with making decisions about such important social policies. Further, this record is too sparse to serve as the basis for making such a choice. Also, a determination that A.L.S. has a fundamental constitutional right to be identified as the child’s mother will wrest from the Legislature the flexibility that it needs to fairly evaluate and carefully balance the far larger universe of participants and rights involved. Finally, a determination that A.L.S. has a right of constitutional magnitude would create a true equal protection violation since it would elevate one class of infertile people who seek to address infertility and whose rights could be accomplished through adoption, above all other infertile people and all other adopters.

The concurrence concludes that the question is not a constitutional one but one that should be addressed, if at all, by the other branches of government, informed by a thorough and public debate of these profound and significant questions.

Justice Albin, in dissent, says that here, where no one has claimed that the surrogacy arrangement was procured through improper means or that the surrogate has not given a willing and informed consent, the only question is whether the state constitution requires that the infertile wife be treated equally, i.e., that her name be placed on the birth certificate as the natural mother as would happen if she were an infertile husband under 9:17-44(a). He says that despite the obvious anatomical and physiological differences between the infertile husband and wife, once a surrogate knowingly and voluntarily surrenders her parental rights, their situations are not meaningfully different. Denying the infertile wife and her intended child the same benefits and privileges given to her male counterpart and his intended child bears no substantial relationship to a legitimate governmental purpose and abridges her right to the equal protection of the laws.

Justice Patterson and Judge Wefing, temporarily assigned, join in Justice Hoen‘s concurring opinion. Chief Justice Rabner and Justice LaVecchia join in Justice Albin‘s dissent.

For appellants T.J.S. and A.L.S. — Donald C. Cofsky (Cofsky & Zeidman; Cofsky and Pasquale Guglietta on the briefs). For respondent Department of Health and Senior Services, Bureau of Vital Statistics and Registration — Kimberly E. Jenkins, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General; Melissa H. Raksa, Assistant Attorney General, of counsel).