IN THE MATTER OF THE PARENTAGE OF A CHILD BY T.J.S. AND A.L.S.
A-4784-09T4 2-23-11
We hold that the provisions of the Parentage Act, N.J.S.A. 9:17-39 to -59, conferring paternity upon a husband either presumptively, where the child is born to the wife during marriage, N.J.S.A. 9:17-43(a), or by operation of law, where the wife is artificially inseminated with donor sperm, N.J.S.A. 9:17-44, do not extend to automatically confer maternity on an infertile wife whose husband has a child via in vitro fertilization of a gestational carrier. Sections 43(a) and 44 do not offend constitutional principles of equal protection because their different treatment of infertile married men and women is grounded in real physiological differences between the sexes and is necessary to protect the interests of the gestational carrier. Absent legislative reform, the infertile wife's sole means of obtaining parentage to her husband's child remains through adoption.
