NJ Court Awards Custody in Gestational Surrogacy Dispute

Facing legal questions of first impression for the state, New Jersey Superior Court Judge Francis B. Schultz ruled on December 13 that the father of twin girls conceived through gestational surrogacy should be awarded sole custody of the now-5-year-old girls, despite the court having earlier ruled that the surrogacy contract signed by the parties was void as a matter of New Jersey law and that the gestational surrogate, although not genetically related to the twins, is their legal mother.

The court's decision in Robinson v. Hollingsworth, Docket # FD-09-001838-07 (N.J. Superior Court, Hudson County), was transmitted to the parties in a letter ruling using initials to identify the parties, but it has been reported in the Newark Star-Ledger using the names of the parties, which will be used here.  Lowenstein Sandler PC (Karim J. Kaspar, Natalie J. Kraner, and Jennifer L. Fiorica) represent the fathers, and Harold J. Cassidy represents the mother.

Donald Robinson and Sean Hollingsworth, then New Jersey registered domestic partners, entered into a surrogacy agreement with Donald's sister, Angelia Robinson, for Angelia to bear children for the two men.  Although the parties originally intended that Angelia's own ova would be inseminated with sperm from Sean, so that the children would be genetically related to both men, it turned out that Angelia's ova were not suitable for the purpose, so ova donated anonymously were fertilized in vitro and implanted in Angelia, making her a gestational surrogate rather than a traditional surrogate. 

In December 2005, Angelia signed a document titled "Informational Summary and Consent Form – Gestational Surrogacy," signifying her understanding of the process and agreement to participate.  All three parties signed a document titled "Contract Between a Genetic Father, an Intended Father, and a Gestational Carrier" on February 28, 2006.  Under this agreement, the parties signalled their intent that children conceived through the process would be the legal children of Sean and Donald, and that Angelia did not intend to be a parent to the children. The fertilized embryos were implanted by a doctor on March 1, 2006.  Angelia gave birth to twin girls on October 4, 2006, and on October 15, 2006, she signed a "Consent to Judgment of Adoption," under which she authorized termination of any parental rights she had and gave consent to the girls' adoption by her brother, Donald, so that both men would be legal fathers of the twins.

However, as sometimes happens in surrogacy situations, Angelia changed her mind and decided that she wanted to be a mother to the children, not just, as the parties had contemplated, their aunt.  Disputes about visitation arose, the adoption did not go forward, and Angelia filed suit early in 2007, seeking custody.  This all played out against various life changes, most significantly for Angelia, who had at one time had her own same-sex partner, but later, in the course of this litigation, reverted to the conservative Baptist faith in which she (and her brother) had been raised in Texas, renounced homosexuality, and became morally opposed to the surrogacy arrangement in which she had participated.

The initial response by Donald and Sean to the lawsuit was to contest Angelia's standing to seek custody.  Arguing that as a gestational surrogate she had no genetic relationship to the children and should not be deemed their legal mother, they filed a pre-trial motion for summary judgment.  Judge Schultz rejected their motion in an opinion issued on December 23, 2009, finding that under controlling New Jersey law, the surrogacy agreement and the consent to adoption that Angelia had signed were both unenforceable, and that Angelia was the legal mother of the twins. 

Judge Schultz relied on the famous Baby M decision, 109 N.J. 396 (1988), in which the New Jersey Supreme Court, dealing with a traditional surrogate situation, ruled that a surrogate is the legal mother of the child born to her, and that any contractual agreement made prior to the birth concerning parental status or custody is unenforceable as a matter of public policy.  Sean and Donald had argued that Baby M was not precedential for this case because it involved a traditional surrogate who was the genetic as well as the gestational parent, but Judge Schultz rejected the distinction.  He observed that in Baby M, the New Jersey Supreme Court had placed no significance on genetic relationships, instead focusing on more general policy concerns about surrogacy. 

Judge Schultz found that "the public policy considerations" cited by the New Jersey Supreme Court in Baby M "are far reaching and unrelated to a strict genetic connection.  The lack of plaintiff's genetic link to the twins is, under the circumstances, a distinction without a difference significant enough to take the instant matter out of Baby M."  Judge Schultz acknowledged that courts in some other states had treated the matter differently, distinguishing sharply between traditional and gestational surrogates, but he found himself bound to follow New Jersey precedent on this.  California courts, for example, have embraced a concept of "intended parenthood" under which a surrogate who agrees to participate in the process on the understanding that she will not be a legal parent to the child is bound by that agreement, and the spouse of the genetic father will be the legal parent of the child.

Having rejected the summary judgment motion, Judge Schultz set for trial what had now become a controversy between two legal parents, Angelia and Sean, who are not married to each other.  Each of them theoretically has an equal claim to custody, and in some circumstances courts will grant joint legal custody, but that is really not a viable option when the parties are hostile to each other, and in this case there was considerable hostility, arising from a variety of circumstances. 

The background is a complex story told in great detail in the December 13 decision, drawing in the parents of Angelia and Donald, who now live with Angelia and are religiously opposed to surrogacy and homosexuality.  An additional complication is that Sean's mother is Caucasian and his father is African-American, so the twins are part African-American.  Courts normally treat mixed-race children as being "special needs" children in the sense that they may have particular identity issues growing up in a society that thinks in racial terms, and need parental support in establishing their own identity.  Another complicating factor: when same-sex marriage was available during 2008 in California, Sean and Donald went there to get married, and Donald took Sean's surname, so the couple are now Sean Hollingsworth and Donald Robinson Hollingsworth.  Another complicating factor, which helps to explain why it took so long for a case filed in 2007 to be decided, was that despite frequent requests by the court, counsel for Angelia never submitted proposed findings of fact after the trial that was held in several non-consecutive hearing dates between June 2010 and July 2011, and there seems to have been protracted pre-trial wrangling between the parties.

Each side in the litigation presented expert testimony, and there was also a neutral expert who had been appointed by a different judge who had been handling the initial stages of the case before it was assigned to Judge Schultz.  The December 13 opinion provides detailed discussion of the experts' testimony, and gives most weight to the "neutral" expert appointed by the court, who "strongly recommended sole custody with the defendants and that it be done as quickly as possible."  According to Judge Schultz, this expert, Dr. Alex Weintrob, "was passionate about this." 

Dr. Weintrob strongly contended that it would be harmful to the girls for Angelia to be awarded custody, in light of her attitudes towards homosexuality and her dismissal of the particular issues the girls would face as mixed-race children.  He found that Sean would be a superior parent in terms of affirming the girls' identity.  In addition, Donald is the breadwinner in the family and Sean the stay-at-home parent (who only works part-time), whereas Angelia works full-time, so the children if in her custody would end up spending considerable time with the mother of Donald and Angelia, whose religious objections to her son's homosexuality and relationship to Sean, the child's legal father, would be difficult to mask.

Ruling out joint custody, Judge Schultz observed that "the parents' ability to agree, communicate and cooperate in matters relating to the children is nonexistent here," and that is a prerequisite to a successful joint custody arrangement. 

"The needs of the children are the most important factor in this case," wrote Schultz, who found that  when all the relevant factors were considered, it was in the best interest of the girls to live with Sean and Donald, provided that Angelia had sufficient regular visitation rights to preserve her parental relationship with the children.   He found that Sean and Donald were in a better position to be supportive of the girls' identity issues relating to having been conceived through in vitro fertilization and gestational surrogacy, having a gay father living in a same-sex relationship, and being of mixed race.  He also found that "the stability of the home environment offered and the quality and continuity of the children's education" were also important factors that weighed in favor of Sean as custodian.  The children are enrolled in a Montessori school in Jersey City, and Angelia was planning to place them in a religious school if she obtained custody.  The court weighed many factors, and found that virtually all the relevant factors weighed in favor of a custody award to Sean. 

The court set out a detailed schedule for visitation rights for Angelia, under which the children would spend alternate weekends with her, from after school on Fridays until Sunday evenings, with some exceptions carved out for various holidays and some full weeks during summer vacations from school. 

The result of this ruling is that the children have two legal parents, Sean and Angelia, and an uncle, Donald, who also happens to be their father's New Jersey registered domestic partner and California husband, but who has no legal parental status towards the twins, even though they consider him to be one of their fathers. 

Due to the strange patchwork of recognition of same-sex marriages in the U.S., this marriage is not recognized as such in New Jersey, but is treated by the state government as a "civil union" as that term is defined in New Jersey law, and, due to the federal Defense of Marriage Act, their marriage is not recognized by the federal government.  Due to the hostility between Angelia and the two men, a second-parent adoption by Donald seems out of the question, since Angelia is unlikely having litigated this issue for almost five years to suddenly agree to a termination of her parental rights, and New Jersey law does not recognize that a child can have three legal parents — at least, not yet.  Theoretically, if Sean become incapacitated or died while the twins were still minors, Donald might have no standing for maintaining legal custody of them if Angelia insisted on asserting her parental rights, leaving their family relationship in a tenuous situation.

The story of this case presents a cautionary tale for gay male couples who are interested in having children through a surrogacy arrangement.  Doing this kind of a thing in a state such as New Jersey that has no statutory or judicial recognition and enforcement of surrogacy agreements is a risky business, as the written agreements may have no weight in a legal dispute.  Things are even worse in New York, where a criminal statute condemns surrogacy agreements, both traditional and gestational.  By contrast, surrogacy is legally recognized and such agreements are enforced in Connecticut. 


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