The Law Looks Differently at Mothers and Fathers

What defines a parent? For some, parents are the people to whom you are born. Others define parents as those who raise and care for you as you grow. According to, both definitions are correct, (1) but what about the legal definition of parent? That’s a question the New Jersey Supreme Court recently agreed to review.

The case involves a woman seeking to be identified as the legal mother of a child born to her husband and a surrogate without having to file for adoption. An appeals court previously heard the case and cited the New Jersey Parentage Act, which states that a woman is automatically granted parental rights only to a child she either carries through pregnancy or with whom she shares DNA. In this case, the husband’s sperm was used to fertilize an anonymous donor’s egg which was then implanted into a surrogate mother, leaving the wife no physical tie to the child. (2)

Prior to the child’s birth, a Camden County Superior Court Judge granted the couple’s request to be named as parents on the child’s birth certificate. The surrogate mother relinquished her parental rights three days after giving birth, the time period specified by law. All seemingly went smoothly until the Bureau of Vital Statistics questioned the wife’s parental claim. Since she did not carry the baby in pregnancy nor share DNA with the child, the Bureau claimed she needed to file for adoption as a stepparent before gaining her parental rights. (2)

This view highlights the difference in the way men and women are considered under the law. In the strictest sense of the word, parent legally “refers only to a mother or father who is related to the child by blood.” (3) However, in light of various infertility remedies, men are normally presumed to be the father to any child born to their wives during their marriage, even if the child was conceived through artificial insemination with donor sperm. This contrasts to criteria used to determine a mother’s parental rights. (2)

The Appellate Division explained the Parentage Act is based on “reproductive and biological differences” between men and women and the law affords extra protection for birth mothers. Arguments in favor of the couple in this case, however, point out that the adoption process allows for a period of time in which only one parent is legally responsible for the child. (2)



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