Obergefell v. Hodges, 576 U.S., 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015), a landmark U.S. Supreme Court decision, firmly established marriage equality for same-sex marriages. However, legal issues still remain regarding same-sex parentage as state laws struggle to keep up with constantly evolving reproductive technology and the different configurations of families. This is why we strongly advise same-sex female couples who have conceived a child through Assisted Reproductive Technology, even with co-maternity, or ovum sharing, to take the precautionary step of establishing a confirmatory adoption or order of parentage in the partner who did not give birth.
New Jersey law recognizes the parent that gives birth to the child as a legal parent. New Jersey law also establishes a rebuttable presumption that the spouse of a married woman who gives birth is the second parent of the child. N.J.Stat.9:17-43. This is called the marital presumption. When a child is born to a same-sex married couple in New Jersey, then, both mothers are listed as parents on the child’s birth certificate based upon that presumption of parentage. However, a birth certificate is only an administrative record and is NOT a declaration of, or proof of, parentage that is universally enforceable. Thus, we still would recommend documenting the situation in a court order of adoption so that a child is protected with regard to all federal benefits and so that the parentage based upon marital presumption is beyond dispute regardless of location around the world.
In a co-maternity situation, both women in a same-sex relationship are able to biologically participate in the reproduction process. Typically, a doctor will extract eggs from one mother and fertilize them with anonymous donor sperm in order to create pre-embryos. The doctor then implants the pre-embryos in the uterus of the second mother, who carries the child(ren) to term and gives birth. In this situation, the genetic mother is biologically related to the child so an action to confirm parentage under New Jersey statute may be possible.
The New Jersey parentage lawyers at Argentino Family Law & Child Advocacy, LLC, are eager to answer your questions and help you understand the procedures and benefits of filing for a confirmatory adoption or an order of parentage. As your attorneys, we will focus on how best to represent your interests and achieve your desired goals. We have handled countless adoption, parentage, and family law proceedings over the years, and we will work with you to create the best strategy possible in your case. Call our offices today at (973) 868-0958 and learn how we can help you with your New Jersey family law case.