The New Jersey case of A.G.R. v. D.R.H. & S.H. is a story of much that can go wrong. At the center of the case are two twin girls, born in October 2006. There has been litigation about their parentage and care since they were five months old. The girls were born to AGR, who was a gestational surrogate for her brother, DRH, and his partner, SH, who is the children's biological father. AGR filed for custody of the children, and two years ago the trial judge ruled that the documents AGR signed agreeing to be a gestational surrogate were unenforceable in New Jersey and that she is the children's legal mother. Twenty years ago, in the famous Baby M. case, the New Jersey Supreme Court voided a traditional surrogacy contract as against public policy. Since then, no one seeking an enforceable surrogacy arrangement would make such arrangements in New Jersey, but that is what these three people did. The men argued that their situation was distinguishable because it was gestational surrogacy, but the judge didn't buy it. For the past two years, the children have gone back and forth between the two homes.
Well this week the same judge awarded full legal and physical custody of the children to SH. He ruled that joint custody was inappropriate because the parents could not agree, communicate, or cooperate. AGR received generous and fairly typical visitation rights -- every other weekend, three hours on a weekday evening, four weeks in the summer.
One of the things I find most interesting about this case is the plan the men always had that the gestational carrier AGR, aka DRH's sister, would play a large role in the children's lives. It reminded me of the scenario that is more typically of lesbian couples who use a known donor to conceive; sometimes they expect him to be involved with the child but not to be a parent with legal rights to challenge their decisions. This is less common among gay male couples using a surrogate, although Judith Stacey's research on gay men in southern California (reported in her most recent book, Unhitched), did uncovered one such family, where the children had relationships with both the gestational surrogate and the egg donor. SH testified that AGR was expected to be a "special aunt."
Some facts emerged in this opinion that were not in the earling ruling. I learned in the third paragraph of this 15 page single spaced opinion that AGR was a lesbian. When she first explored being a surrogate for her brother and his partner in 2004 she was in a four year relationship with a woman that broke up about a year later, shortly before she began the fertility treatments in preparation for the surrogacy. In 2008, however, she returned to her earlier Baptist faith, renounced her lesbianism, and began espousing negative views of both surrogacy and homosexuality. (AGR is represented by the same lawyer who represented the birth mother in Baby M., who is also well known for his litigation and legislative work against abortion; I don't see evidence of Liberty Counsel or Alliance Defense Fund's involvement in this case, but the claims of ex-gay parents are a staple in their dockets.)
The judge was deeply concerned that AGR's negative views would have an adverse impact on the children. AGR was living with her mother (who is of course also SRH's mother), and she, too, had very negative, biblically-based views of homosexuality. AGR said that if she got custody she would enroll the chldren in a Catholic school and take them to a Baptist church. At one point the judge referred to the twins as "special needs" children because of their unusual method of conception and family structure. The judge held that SH always looked at things from the perspective of the children's best interests. On the other hand, he found that it was "inevitable" that the strong views of SH and her mother, including that SRH would burn in hell, would have a damaging effect on the children and would make them feel ashamed of themselves.
The plaintiff and defendants each called an expert witness and there was also a court appointed expert, who supported sole custody for the father and his partner (and said it should happen as quickly as possible). Dr. David Brodzinsky, a well-known expert on adoption who strongly supports LGBT parents, testified for the fathers. I was very disturbed by one thing he said. The judge wrote that he testified that "being genetically related give SH an advantage over plaintiff because children relate better to genetic parents." What?? I'd like to know what he based this on. I've never heard this view espoused in all the cases between bio and nonbio moms, nor has any court relied on it, so it was pretty shocking to read it here...and from an expert well known for his work on adoption.
As for the expert for AGR, the judge did not agree with many of his conclusions, but even he said that AGR should not say homosexuality was a sin in front of the children and that taking them to an anti-gay church would be bad for them. The court appointed expert was deeply disturbed by the impact of AGR's negative views of homosexuality, but he also said something that bothers me -- that SH's two-parent household was better because AGR works during the day (SH was a stay-at-home dad). This reasoning has been improperly used against divorced moms, gay and straight, when their ex-husbands remarry, and I don't want it in custody decisions about our children.
The judge's findings are so detailed that there is no chance they would be reversed on appeal. I do not know if the fathers are planning to appeal the finding that AGR is their mother, or if they even can at this point. When the child at the heart of Baby M. turned 18, she consented to her adoption by her "stepmother" so that her legal parentage could match the family she really had. Perhaps these children will do the same...