Law.com (subscription required):
The New Jersey Supreme Court heard oral argument on March 1 in a surrogate-mother suit, The Matter of the Parentage of a Child by T.J.S. and A.L.S., and in so doing, exposed the case's greatest weakness.
The class of women with the greatest rights at risk was unrepresented. While the parties and the Court pondered whether the justices could change statutory law, or declare it unconstitutional, the central issue was whether and when the fundamental constitutional liberty interests and state's rights of the unrepresented legal mothers could be terminated.
The birth mothers were not heard from. Of such stuff, bad law is made.
... The wife in T.J.S. seeks to cut off the rights of the legal mother, which are protected as an intrinsic fundamental right under the state and federal constitutions. The sperm donor, on the other hand, has no rights statutory or constitutional. T.J.S.'s wife has no rights either, by statute or either constitution.
The fact that the state does not recognize rights in an anonymous sperm donor who has no statutory or constitutional rights and who has no relationship with the child, does not compel the state to terminate the rights of a mother who has statutory and constitutional rights in the relationship she has with the child she carried for nine months under concepts of equal protection.
The two are simply NOT similarly situated. That was the conclusion of the Baby M Court.
The sad irony of T.J.S.'s argument is that it is made in the name of women's rights, while attempting to destroy well-established constitutional rights of women who went unrepresented.