## Facts

- A married couple arranged for a gestational carrier to carry embryos created by in vitro fertilization using the husband’s sperm and anonymously donated ova.
- The gestational carrier had no genetic relationship to the child but gave birth to the child.
- Before birth, the spouses sought a declaration of parentage and a pre-birth order directing that both spouses be listed as parents on the birth certificate and that the carrier not be listed as the mother.
- The Family Part initially entered an order providing that the spouses would be listed as parents after the carrier executed a post-birth surrender of rights at least 72 hours after birth.
- After the birth and the carrier’s surrender, the State Registrar moved to vacate the portion of the order listing the wife (who was infertile and not genetically related to the child) as the child’s mother.

## Issues

1. Whether the New Jersey Parentage Act permits a court to declare an infertile, non-genetic wife the legal mother of her husband’s biological child born to a gestational carrier without an adoption.
2. Whether the statutory scheme violates equal protection under the New Jersey Constitution by presuming paternity for certain infertile husbands while not creating a comparable presumption of maternity for similarly situated infertile wives in gestational-carrier arrangements.
3. Whether the trial court could direct the State Registrar to issue a birth certificate listing the intended wife as mother absent an adoption decree.

## Decision

- The Appellate Division affirmed the order vacating the directive that the wife be listed as the child’s mother on the birth certificate.
- The court held the Parentage Act did not authorize recognition of the intended wife’s maternity in this gestational-surrogacy context without adoption.
- The court rejected the equal-protection challenge, concluding the statutory framework did not unconstitutionally discriminate on the basis of sex.
- The court indicated the wife could obtain legal parentage through a stepparent adoption.

## Legal Principles

- Parentage determinations are governed by the Parentage Act’s text and structure; courts may not create new parentage categories not authorized by statute.
- The Act’s express presumption of paternity for an infertile husband in specified assisted-reproduction circumstances does not imply a reciprocal presumption of maternity for an infertile, non-genetic intended mother when another woman gives birth.
- In the absence of an adoption decree, legal maternity ordinarily follows the woman who gives birth, and vital records reflect natural or adoptive parentage as recognized by law.
- Stepparent adoption is the established mechanism for conferring legal parent status on a non-genetic spouse of a genetic parent, with procedural safeguards designed to protect the child’s interests.
- No equal-protection violation occurs where the statute addresses materially different reproductive situations and provides a lawful avenue (adoption) for the intended, non-genetic spouse to become a legal parent.

## Conclusion

The Appellate Division held that the Parentage Act did not permit listing an infertile, non-genetic wife as the child’s legal mother on the birth certificate in a gestational-surrogacy arrangement without a stepparent adoption, and that this statutory scheme did not violate state equal-protection guarantees.


In re T.J.S., 419 N.J. Super. 46, 16 A.3d 386 (N.J. Super. Ct. App. Div. 2011)