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‘Intended Mother’ Must Adopt Son Conceived through IVF, NJ Court Rules (3/2011)

A New Jersey appeals court has ruled that the “intended mother” of a child born through in vitro fertilization (IVF) using a donated egg and a surrogate mother must adopt the child to be legally considered his mother.

IVF methods continue to raise many concerns, not only of an ethical nature, but far-reaching into parental rights issues.

The current case involves a couple who conceived a child nearly 20 years ago using a donor’s egg and the husband’s sperm; the child was then carried by a surrogate mother.  With the approval of a pre-birth order, the infertile “intended mother” had her name listed on the child’s birth certificate as his mother, according to

However, the state Bureau of Vital Statistics later told the Superior Court judge who issued the order that the “intended mother” would have to adopt the child because she had no biological claim on him.

“We’re operating under a law that’s more than a quarter of a century old,” said Donald Cofsky, a Haddonfield attorney representing the couple. “My clients believe this is something that has to be addressed — not just for them but for everybody else in this situation.”

Lawyers and politicians say the law needs to be addressed because of the thousands it could affect.

At issue, the court documents state, is the fact that paternity is always assumed, even if an infertile husband’s sperm is not used for conception, whereas adoption is still necessary for an infertile wife to become the “mother” of her husband’s child.

“The law says a mother has to be genetic, biological or adoptive,” Cofsky said. “A father doesn’t have to be any of those.”

Cofsky argued that his clients are discriminated against.  Adoption, he added, can take months and up to $6,000.

The appellate court’s extensive response says the court is not discriminatory; the law simply needs to be revisited to include newer reproductive methods, like IVF.  As yet, New Jersey parentage laws only deal with artificial insemination.

“In the absence of a legislative response, plaintiffs have asked us to rewrite the statute to accommodate their circumstance,’’ Appellate Judge Anthony Parrillo wrote for the three-judge panel. “We decline the invitation.”

“It’s an extremely well-written opinion, but unfortunately is an extremely conservative one,’’ said Cofsky. “They did not take an expansive view. I wasn’t asking them to rewrite the law. I was asking them to interpret the existing law in a way my clients felt would be a gender-neutral fashion. It raises more questions than it answers.”

[23 March 2011, Rebecca Millette, TRENTON, New Jersey,,