In re T.J.S.

TJS and his infertile wife, ALS (the spouses) (plaintiffs) entered into an agreement with AF (the surrogate), who consented to act as a gestational carrier. The spouses arranged to have anonymously donated ova fertilized in vitro with the husband’s sperm. Two viable human embryos were implanted into the surrogate’s uterus. The spouses filed suit for a pre-birth declaration of parentage under the New Jersey Parentage Act (parentage act). The spouses asked that their names be listed as parents on the resulting child’s birth certificate and that the surrogate not be listed as the child’s mother. The trial court ordered that the birth certificate list the spouses as the child’s parents once the surrogate officially surrendered her rights 72 hours following the birth. The child was born, and the surrogate surrendered her rights 72 hours later. The State Registrar (defendant) moved to vacate the trial court’s order that the wife be listed as the mother on the child’s birth certificate. The trial court concluded that the parentage act did not allow the wife to be declared as the child’s mother through a pre-birth order; the wife’s only option was stepparent adoption of the child under state law. The trial court ruled that the parentage act did not violate the wife’s equal-protection rights under the New Jersey Constitution by providing for the presumptive paternity of an infertile husband but not the presumptive maternity of an infertile wife, as argued by the spouses. The trial court granted the registrar’s motion to vacate the order listing the wife as the mother on the child’s birth certificate. The spouses appealed.