(CN) - New Jersey can continue forcing infertile women, but not infertile men, to apply for adoption of their nonbiological children after the state Supreme Court came to a deadlock.
A married couple, T.J.S. and A.L.S., have spent years challenging gender disparities in the New Jersey Parentage Act. A surrogate, A.F., gave birth to their child in July 2009, from an embryo formed by an anonymous donor's egg and T.J.S.'s sperm. The surrogate signed away her maternity rights and never asked to be the parent.
Before the state's Department of Health and Human Services had intervened, the New Jersey Superior Court initially granted permission to list A.L.S. as the mother.
In asking to vacate the decision, the agency argued that the New Jersey Parentage Act required A.L.S. to seek an adoption if she wanted to be listed as the mother. The trial judge sided with the agency, and the Appellate Division later affirmed.
Though one state Supreme Court justice from the seven-member panel could not attend oral arguments in March, the remaining six heard the appeal and reached a 3- 3 deadlock on Tuesday, effectively affirming the law's constitutionality.
In her concurring opinion, Justice Helen Hoens held that law's separate treatment of infertile men and women was grounded in biology.
"If one recognizes that the Legislature could, and did, base its distinction between presumptive rights of men and women on the realities of our physiological differences, then those distinctions can and must survive a constitutional attack," Hoens wrote.
She called the controversy a "social policy choice" that called for public debate at the legislative level, rather than a court's ruling.
"In the end, the question is not a constitutional one, but one that should be addressed, if at all, by the other branches of government, informed by a thorough and public debate of these profound and significant questions," she wrote.
Justice Barry Albin, writing for the dissenters, replied that the case simply involved "unequal treatment."
"This case is about the unequal treatment of similarly situated infertile married women and infertile married men under the law," the dissent begins.
Biological differences alone do not account for the discrepancy, he continued.
"Despite the obvious anatomical and physiological differences between the infertile husband and wife, once a surrogate knowingly and voluntarily surrenders her parental rights, their situations are not meaningfully different," Albin wrote. "Denying the infertile wife and her intended child, as here, the same benefits and privileges given to her male counterpart and his intended child bears no substantial relationship to a legitimate governmental purpose and abridges her right to the equal protection of the laws."
The judges supporting the law decided the case to defend the rights of a "hypothetical surrogate," rather than the one in this case, according to the dissent.
"This case is not about a hypothetical plaintiff or a hypothetical situation," he wrote. "Fictional scenarios or simplistic generalizations about infertile women and surrogacy arrangements should not drive the constitutional analysis in this case."
Both sets of judges pointed to the case of Baby M., in which a surrogate whisked her biological child out of state. A New Jersey court eventually voided the contract that stripped away her custody rights, in the first decision of its kind.
While the concurring judges cited this as an example of the surrogates they needed to defend, Albin countered: "This case is only about a gestational surrogate who has no interest in raising the child she has carried for the genetic father and intended mother."
The judge lamented that A.L.S. now has to go through "costly and time-consuming" adoption procedures, or wait for the state Legislature to push through reform.
Invoking Langston Hughes, Albin called the second solution the basis of a "dream deferred."
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