NJ & CT News

Change to Surrogates' Parental Rights May Be in the Works

Proposed legislation and a case New Jersey's Supreme Court heard in March are working toward altering an apparent injustice in the state's laws concerning the legal parentage of some children born through artificial means. Currently, if a woman gives birth to a child born through artificial fertilization with sperm from a sperm donor, she is considered the child's mother, and her husband the child's father. That is because the law presumes a man is the father of children born to his wife. Therefore, even though the child is not related by blood to the husband, it is not necessary for him to formally adopt the child in order to be its legal parent. However, if a surrogate mother gives birth to the couple's child, the intended mother is only considered the legal mother if her own egg was used to conceive the baby. If the gestational mother or another donor provided the egg, the child does not automatically become legally hers upon birth, and she must instead adopt it. This situation is only complicated by the current adoption law, N.J.A.C. ' 10:121A-5.4, which gives all birth mothers who agree to give up their children for adoption 72 hours in which to change their minds.

The Gestational Carrier Agreement Act (A-2646) would change New Jersey law to allow gestational-carrier agreements to declare the intended mother the child's mother upon birth. The bill was passed by the Assembly Human Services Committee on March 8.

Meanwhile, on March 1, the State Supreme Court heard a case challenging an Appellate Division declaration that the Parentage Act, N.J.S.A. 9:17-38 to -59, confers legal parental status to females only if they have a biological or gestational relationship to the child. The case, Matter of the Parentage of a Child by T.J.S. and A.L.S., A-130-10, concerns a couple who conceived using the husband's sperm and a donor egg. The resulting child was carried by a gestational mother unrelated to it by blood. The intended parents secured a pre-birth order issued by a Camden County Superior Court judge directing that the wife be named the parent on the birth certificate. However, New Jersey's Bureau of Vital Statistics later got the judge to vacate his order after successfully arguing that the law, as currently on the books, required the woman to go the adoption route if she wanted to be declared the child's legal parent. The mother's argument before the Supreme Court in Matter of the Parentage of a Child by T.J.S. and A.L.S. challenges this circumstance as contrary to women's rights to equal protection under the law.

CONNECTICUT

Calling It 'Alimony' Does Not Make It So

The U.S. Bankruptcy Court, in the case of In re Virgili, 2012 Bankr. LEXIS 811 (3/1/12), recently determined that payments a Connecticut couple had styled as “alimony” in fact represented a property settlement accessible by creditors. The husband and wife's settlement agreement called for the wife to pay her husband alimony of $1,442.23 per week, for eight years. She also agreed to pay him a lump sum of $200,000 in exchange for keeping the business the couple had built together. In anticipation of the divorce, the business had been valued at about $1.6 million. Soon after the divorce, the business unexpectedly failed. The wife then discontinued her alimony payments. The husband, meanwhile, began to suffer ill health and became unable to work. He filed for
Chapter 7 Bankruptcy protection. On the debtor/ex-husband's Schedule C (property claimed as exempt) bankruptcy filing, he elected the “federal list” of exemptions found in 11 U.S.C. ' 522(d)(10(D), as opposed to the exemptions permitted by Connecticut law. By doing this, he was able to claim as exempt from the bankruptcy estate the back alimony purportedly owed to him by his ex-wife. The ex-wife filed an objection contending that “the debtor's contractual right to receive alimony (in the amount of $1,442.23 per week [the "Weekly Payment"] for eight years) is a disguised property settlement and that the aforementioned sum exceeds the amount 'reasonably necessary for the support of the debtor and any dependent of the debtor.'” After trial on the issue, the bankruptcy court found that the “alimony” was in fact a property settlement, as the amount it represented was approximately $600,000 ($1,442.23 x 52 x 8 = $599,967.68), and that amount, added to the $200,000 actually forfeited by the wife in exchange for the business in accordance with the separation agreement, represented the true value ($800,000) of a one-half share in the business at the time of the divorce. Also significant to the court was the fact that, although the alimony obligation contained in the separation agreement was to end should the wife pre-decease the husband during the eight-year alimony payment period (as is common), she was required to carry a life insurance policy that would then pay the ex-husband any amounts she did not therefore pay in alimony. For these reasons, the court found that the supposed alimony was instead a property settlement, and it sustained the ex-wife's objection.

NEW JERSEY

Bill to Limit Application of Foreign Law Goes Back to The Drawing Board

The sponsor of a proposed state law banning the enforcement of foreign laws or contracts if upholding them would violate the U.S. Constitution has temporarily withdrawn the bill. Assemblywoman Holly Schepisi, R-Bergen, decided the bill needed re-working after she attended two meetings with critical local Muslim leaders, who saw the bill as an attempt to marginalize Muslims in New Jersey. The impetus for the proposed legislation came from the case of a married Muslim woman whose husband she accused of forcing her to have sexual relations. The judge hearing her petition for a restraining order declined to issue one after concluding that, because of Islamic Sharia law, the husband believed he had an unlimited right to demand sex of his wife no matter what she wanted. Thus, he did not have what the judge considered to be the requisite intent for perpetrating a sexual assault. An appeals court overturned that decision, finding that the constitution's guarantee of religious freedom did not prevent the courts from finding that a husband had sexually assaulted his wife. Schepisi intends to revise the bill to focus on forum and venue issues, to allow parties in New Jersey to contract to submit to a forum outside the United States if they so choose. Matters decided in New Jersey would, however, still be subject to the restrictions on foreign law imposed by the federal and state constitutions.

Change to Surrogates' Parental Rights May Be in the Works

Proposed legislation and a case New Jersey's Supreme Court heard in March are working toward altering an apparent injustice in the state's laws concerning the legal parentage of some children born through artificial means. Currently, if a woman gives birth to a child born through artificial fertilization with sperm from a sperm donor, she is considered the child's mother, and her husband the child's father. That is because the law presumes a man is the father of children born to his wife. Therefore, even though the child is not related by blood to the husband, it is not necessary for him to formally adopt the child in order to be its legal parent. However, if a surrogate mother gives birth to the couple's child, the intended mother is only considered the legal mother if her own egg was used to conceive the baby. If the gestational mother or another donor provided the egg, the child does not automatically become legally hers upon birth, and she must instead adopt it. This situation is only complicated by the current adoption law, N.J.A.C. ' 10:121A-5.4, which gives all birth mothers who agree to give up their children for adoption 72 hours in which to change their minds.

The Gestational Carrier Agreement Act (A-2646) would change New Jersey law to allow gestational-carrier agreements to declare the intended mother the child's mother upon birth. The bill was passed by the Assembly Human Services Committee on March 8.

Meanwhile, on March 1, the State Supreme Court heard a case challenging an Appellate Division declaration that the Parentage Act, N.J.S.A. 9:17-38 to -59, confers legal parental status to females only if they have a biological or gestational relationship to the child. The case, Matter of the Parentage of a Child by T.J.S. and A.L.S., A-130-10, concerns a couple who conceived using the husband's sperm and a donor egg. The resulting child was carried by a gestational mother unrelated to it by blood. The intended parents secured a pre-birth order issued by a Camden County Superior Court judge directing that the wife be named the parent on the birth certificate. However, New Jersey's Bureau of Vital Statistics later got the judge to vacate his order after successfully arguing that the law, as currently on the books, required the woman to go the adoption route if she wanted to be declared the child's legal parent. The mother's argument before the Supreme Court in Matter of the Parentage of a Child by T.J.S. and A.L.S. challenges this circumstance as contrary to women's rights to equal protection under the law.

CONNECTICUT

Calling It 'Alimony' Does Not Make It So

The U.S. Bankruptcy Court, in the case of In re Virgili, 2012 Bankr. LEXIS 811 (3/1/12), recently determined that payments a Connecticut couple had styled as “alimony” in fact represented a property settlement accessible by creditors. The husband and wife's settlement agreement called for the wife to pay her husband alimony of $1,442.23 per week, for eight years. She also agreed to pay him a lump sum of $200,000 in exchange for keeping the business the couple had built together. In anticipation of the divorce, the business had been valued at about $1.6 million. Soon after the divorce, the business unexpectedly failed. The wife then discontinued her alimony payments. The husband, meanwhile, began to suffer ill health and became unable to work. He filed for
Chapter 7 Bankruptcy protection. On the debtor/ex-husband's Schedule C (property claimed as exempt) bankruptcy filing, he elected the “federal list” of exemptions found in 11 U.S.C. ' 522(d)(10(D), as opposed to the exemptions permitted by Connecticut law. By doing this, he was able to claim as exempt from the bankruptcy estate the back alimony purportedly owed to him by his ex-wife. The ex-wife filed an objection contending that “the debtor's contractual right to receive alimony (in the amount of $1,442.23 per week [the "Weekly Payment"] for eight years) is a disguised property settlement and that the aforementioned sum exceeds the amount 'reasonably necessary for the support of the debtor and any dependent of the debtor.'” After trial on the issue, the bankruptcy court found that the “alimony” was in fact a property settlement, as the amount it represented was approximately $600,000 ($1,442.23 x 52 x 8 = $599,967.68), and that amount, added to the $200,000 actually forfeited by the wife in exchange for the business in accordance with the separation agreement, represented the true value ($800,000) of a one-half share in the business at the time of the divorce. Also significant to the court was the fact that, although the alimony obligation contained in the separation agreement was to end should the wife pre-decease the husband during the eight-year alimony payment period (as is common), she was required to carry a life insurance policy that would then pay the ex-husband any amounts she did not therefore pay in alimony. For these reasons, the court found that the supposed alimony was instead a property settlement, and it sustained the ex-wife's objection.