How does the law define what constitutes a parent and who is a parent? According to New Jersey’s Parentage Act, a “parent and child relationship” is “the legal relationship existing between a child and the child’s natural or adoptive parents, incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.” N.J.S.A. 9A:17-39. With advances in technology, many more people have been able to conceive and have a child. Over the years, that has meant that family law has had to adapt to new circumstances by which people might have children, and thus disputes about having children. The Parentage Act lists various means by which a parental relationship with a child is created under the statute: (1) genetic contribution, gestational primacy (ie. giving birth), or (3) adoption. N.J.S.A. 9:17-41.A few years ago, my colleague wrote a blog post about the potential for a custody dispute over frozen embryos that have not yet been implanted to produce a child via in vitro fertilization.
The Act HN3 defines the “parent and child relationship” as “the legal relationship existing between a child and the child’s natural or adoptiveparents, incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.” N.J.S.A. 9:17-39 (emphasis added). There are several means by which to establish a parental relationship under the Act: (1) genetic contribution, N.J.S.A. 9:17-41; 4 (2) gestational primacy, i.e., giving birth, N.J.S.A. 9:17-41(a); or (3) adoption, N.J.S.A. 9:17-41(c). In addition, a rebuttable presumption of paternity derives from the parties’ legal relationship, i.e., marriage or its equivalent, when a child is born during the course of a marriage or within 300 days of its termination. N.J.S.A. 9:17-43(a)(1). 5 This presumption, that a man is the father of a child born to his wife, extends to a husband who consents to his wife being [**391] inseminated [*55] with donor sperm under the supervision of a licensed physician. N.J.S.A. 9:17-44(a) (the Artificial Insemination Statute).
According to the Parentage Act, there is a rebuttable presumption of paternity when a child is born during a marriage or within a short period after the termination of a marriage. N.J.S.A. 9:17-43(a)(1). What happens if a married couple uses a sperm donor to conceive a child? Does the sperm donor have parental and custodial rights and support obligations to the child?
Pursuant to New Jersey statute, N.J.S.A. § 9:17-44(a), related to artificial insemination, the wife’s husband does as long as he consents even though he is not the biological father. The statute says:
“If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband’s consent shall be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, upon forms provided by the Department of Health, and file the husband’s consent with the State Department of Health, where it shall be kept confidential and in a sealed file. However, the physician’s failure to do so shall not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to inspection only upon an order of the court for compelling reasons clearly and convincingly shown.” (Emphasis added)
What if an unmarried woman conceives a child using a sperm donor? Does that sperm donor have custodial or parental rights or obligations to that biological child? Again, the New Jersey statute says that unless agreed in writing, he does not. The same statute provides in subsection (b) that: “Unless the donor of semen and the woman have entered into a written contract to the contrary, the donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the father of a child thereby conceived and shall have no rights or duties stemming from the conception of a child.” (Emphasis added)
In a situation where a husband and wife conceive a child using the wife’s ovum and a sperm donor, the husband upon the birth of the child would not have to adopt the child and is presumed to have parental rights and obligations to the child as long as he consented to his wife being inseminated with a donor’s semen. If a woman conceives a child using her ovum and donor sperm, the sperm donor does not have parental rights and obligations unless it was agreed to in writing that he would.
Of course, further complications can always be found in the law. For instance, in the case of In re T.J.S., 419 N.J. Super. 46 (App.Div. 2011), a wife was infertile and the couple arranged to have in vitro fertilization using the husband’s sperm and an anonymous donor’s ovum. They also used a surrogate who carried the baby to term for them. The husband was the biological father, but the wife was not the child’s biological mother, and did not give birth to the child. Under the Parentage Act, the wife was not given the same presumption of maternity as a man receives to obtain paternity and, therefore, would not be considered the child’s parent unless she adopted the child. The couple argued, therefore, that the Parentage Act was not constitutional because it denied the wife equal protection by treating her as an infertile woman differently from an infertile husband, and discriminates on the basis of gender.
The Appellate Division disagreed and held that because the wife had no biological or gestational connection to the child, she was not considered the child’s parent unless or until she adopted the child. The Appellate Division reasoned that the statute is “specific to men because the purpose of this provision is to address scenarios where a man is highly likely to be the biological father of a child. The legislative history of the Parentage Act unambiguously states that the ‘presumptions are intended to facilitate the flow of benefits from the father to the child.'”
Technology is wonderful in its ability to allow more people to experience being a parent. Attendant with it, however, are new and complex ways that technology challenges the law.