As the home of the notorious “Baby M.” case, New Jersey has always had a complicated relationship with surrogacy. For many years, both traditional and gestational surrogacy contracts in this state were unenforceable — but recent developments in New Jersey surrogacy laws have now opened up this family-building process to many more intended parents and surrogates.
The amended New Jersey law introduces several new aspects. Let’s break them down:
1. Gestational surrogacy is now enforceable in New Jersey.
Before these amendments, neither traditional nor gestational surrogacy contracts were expressly permitted and enforceable by state laws. Now, if a gestational surrogacy meets certain requirements, it is enforceable by New Jersey laws.
2. Only certain expenses can be paid to a surrogate.
While this is not a “new” law, per se, it is laid out in a way that it had not been prior to this legal update. Gestational surrogacy agreements are only enforceable if a surrogacy is altruistic. Intended parents can pay for certain “reasonable” expenses of the surrogate, including legal costs and reasonable living expenses. However, gestational surrogates in New Jersey cannot be paid a base compensation.
This addition to the law reflects the standing tradition of treating surrogacy expenses as similar to those of an adoption, a practice which continues to apply to traditional surrogacy, as well.
3. Intended parents and gestational surrogates must meet certain eligibility requirements.
In order for intended parents and gestational surrogates to enter into a legal surrogacy agreement in New Jersey, they must meet new requirements:
- Surrogate
- Be at least 21 years of age
- Has given birth to at least one child
- Has completed a medical and psychological examination
- Has retained an independent attorney for the agreement drafting process
- Intended Parent(s)
- Has completed a psychological examination
- Has retained an independent attorney for the agreement drafting process
4. Gestational surrogacy agreements must follow certain steps to be deemed legal and enforceable.
New Jersey laws now have specific requirements for the way gestational surrogacy agreements must be created. First, the agreement must always be executed in writing by the gestational carrier, her spouse (if applicable), and each intended parent. Both parties (surrogate and intended parents) must be represented by separate attorneys during this process.
Before an agreement can be drafted, the surrogate and the intended parents must have completed their required screenings (see above) and be deemed fit for the challenges and rewards of the surrogacy process.
The contract must expressly state:
- A surrogate’s intention to:
- Undergo pre-embryo transfer and attempt to carry and give birth to a child
- Surrender custody of the child after the child is born
- Have the right to medical care of her choosing after she notifies the intended parent(s) in writing
- The surrogate’s spouse’s agreement to those terms
- An intended parent’s intention to:
- Accept custody of the child after the child’s birth
- Assume sole responsibility for the support of the child after birth
If an agreement meets all of these specifications, surrogacy officials will deem it enforceable and provide a safe path for the parties moving forward.
5. Intended parents can obtain a pre-birth order in a gestational surrogacy.
If a gestational surrogacy contract is enforceable, it also protects the rights of the intended parents to receive a pre-birth parentage order — regardless of their marital status or genetic connection to their child. A petition for a parentage order must include affidavits from both parties and their attorneys, as well as the medical facility that performed the embryo transfer.
After the birth of the child, the State Registrar will grant a birth certificate naming the intended parent(s) as the parent(s) of the child.
—
While these are the basics of the updated New Jersey surrogacy laws, the legal process of every surrogacy is unique and can hold certain considerations. The information in this article is in no way intended as legal advice; intended parents and surrogates in New Jersey should always speak with a local surrogacy attorney for more guidance on the new laws and what they mean for their surrogacy journey.
The specialists at American Surrogacy can always provide references to trusted surrogacy attorneys in New Jersey, as well as provide counseling and information if you are interested in surrogacy in New Jersey. For more information, please contact our agency today at 1-800-875-BABY(2229).