Same-Sex Couple and Surrogate Mother Involved in Custody Dispute

In what may be the first (though likely not last) case of its kind, the surrogate mother who carried the twin children of a same-sex couple in New Jersey has won legal recognition as the mother of the children, despite the fact that she is not genetically related to the twin girls.

In 2006, Angela Robinson entered an agreement with her brother, Donald, to carry a child created with the eggs of an anonymous donor, and the sperm of Donald’s spouse. The procedure was successful, producing healthy twin girls. However, in 2007, Robinson sued for custody of the girls, claiming that she had been coerced into agreeing to the surrogacy arrangement.

Last week, a New Jersey state judge ruled that Angela Robinson is the girls’ legal mother, even though she is not biologically related to the girls, and therefore has standing to seek full custody when the case goes to trial this spring.

This case illustrates the legal and moral complexities involved with surrogacy, and also the importance of making sure that any contract concerning family law issues (prenuptial agreements, adoption agreements, child custody arrangements, surrogacy contracts, etc.) should be beyond legal reproach. If Ms. Robinson was not represented by an attorney when the contract was made, the attorney for the couple should probably have strongly advised that she obtain one, and have him or her review the agreement, advising her on its consequences. This would go a long way toward reducing even the appearance of undue influence.

This case also demonstrates the complexities that come with our changing concept of family and parenthood. While the surrogate mother carried these children for 9 months, she is in no way biologically related to them. Furthermore, in the surrogacy contract, she presumably agreed that she would have no parental rights over the children.

On the other hand, a judge apparently believed that she was coerced into entering the contract, and that it was therefore void, giving him the ability to rule that Ms. Robinson is the legal mother of the children. If the contract is in any way defective, it seems that significant weight should be given to the fact that this woman carried twins for 9 months, going through all the trials and tribulations associated with any other pregnancy.

Most importantly, however, this case demonstrates how crucial it is for the law to catch up with technology. I’ve written about this issue before, mainly in the internet context, but it’s just as important for the law to keep up with biotechnology.

While cases such as this are likely to become more common in the future, it appears from recent LegalMatch case data that custody disputes with facts as convoluted as this one are quite rare. In just about all of the thousands of child custody cases which have been submitted to LegalMatch over the last few months, almost all of them have apparently involved the child’s biological or adopted parents (with the occasional grandparent and stepparent in the mix), and not surrogates.

However, as these procedures become more common (which, just to be clear, I do not think is a bad thing. If any couple in a stable, loving relationship wants to bring a child into their lives, more power to them), legal cases such as this (which must be very painful for everyone involved) will probably become more common, as well.

To avoid unfortunate situations such as these, state legislatures should probably begin working on legislature to address the relevant issues sooner, rather than later. The legislation should create clear standards for when surrogacy agreements are enforceable. Much like prenuptial agreements in many states, there should probably be a requirement that all parties be independently represented by an attorney.  There should also be an effort to ensure that these state laws are, to the extent necessary, uniform.

Clear standards relating to enforcement of these agreements would probably prevent lawsuits like the one happening now, sparing everyone a lot of grief. Uniformity in the laws of individual states on this subject would make the proceedings much easier when the parties are from different states, and the court must decide which state law to apply.

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