Where there has been no written surrender to an approved agency or to the Division of Youth and Family Services (DYFS), termination of parental rights will not be granted in New Jersey absent a very strong showing of abandonment or neglect. That showing is required in every context in which termination of parental rights is sought, be it an action by an approved agency, an action by DYFS, or a private placement adoption proceeding, even where the petitioning adoptive parent is a stepparent. While the statutes make certain procedural allowances when stepparents are involved, under N.J. Stat. Ann. §§ 9:3-48a(2), 9:3-48a(4), & 9:3-48c(4), the substantive requirement for terminating the natural parents' rights is not relaxed one iota. N.J. Stat. Ann. § 9:3-48c(1). A "best interests" determination is never sufficient to terminate parental rights; the statutory criteria must be proved.
Plaintiff and his wife, who was infertile, entered into a surrogacy contract with defendant. The agreement recited that defendant was willing to provide that child as the mother with plaintiff as the father. The contract provided that through artificial insemination using defendant's sperm, plaintiff would become pregnant, carry the child to term, bear it, deliver it to plaintiff and his wife, and thereafter do whatever was necessary to terminate her maternal rights so that plaintiff's wife could thereafter adopt the child. Defendant's husband was also a party to the contract but plaintiff's wife was not. Although plaintiff's wife was not a party to the surrogacy agreement, the contract gave her sole custody of the child in the event of her husband's death. Defendant challenged the order of the Superior Court that enforced the terms of a surrogate parent contract on behalf of plaintiff. Defendant claimed that the surrogacy contract was invalid; that the trial court improperly terminated her parental rights and awarded sole custody to plaintiff father, and improperly allowed the adoption of the child by plaintiff's wife, all pursuant to the terms of the contract. On direct certification from the trial court, the court reversed.
Was there a valid termination of defendant's parental right?
The court ruled that the contract was invalid as a matter of law because it violated statute and was against public policy. The court found that private placement adoption was disfavored, that the payment of money made the contract illegal and possibly criminal under N.J. Stat. Ann. § 9:3-54, and that it was vested with an element of coercion. The court ruled that the agreement was totally unenforceable, and that the statute required a surrender of the child to a public agency and then a termination proceeding, which could only proceed after counseling. Further, the termination of defendant's parental rights called for by the surrogacy contract and ordered by the trial court failed to comply with statutory requirements. The court also ruled that no one can contractually abandon one's parental rights. and that because the termination was invalid, the adoption was invalid.