What You Need to Know About Surrogacy in New Jersey

What You Need to Know About Surrogacy in New Jersey

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New Jersey Surrogacy Laws and Information

When you’re researching surrogacy in New Jersey, you’ll quickly find out that the New Jersey surrogacy laws make this process complicated — but possible —for both intended parents and prospective surrogates in this state.

If you are looking to complete a compensated surrogacy, surrogacy in New Jersey is not a possibility for you. A new surrogacy statute in 2018 has made gestational surrogacy arrangements enforceable in New Jersey, but these arrangements can only include “reasonable” living expenses paid to a surrogate. However, intended parents can now also establish their rights to their child through a pre-birth order.

Because of the New Jersey surrogacy laws against compensation, the people who choose to complete this family-building process in this state always complete altruistic surrogacies. If you are considering a surrogacy in New Jersey, we encourage you speak with an experienced surrogacy attorney in this area to learn more about whether this is the right path for you and your family.

Below, you’ll find some of the basic information you need to know about surrogacy in New Jersey if you’re considering this process.

Q: Is surrogacy legal in New Jersey?

A: Gestational surrogacy is legal in New Jersey, thanks to the 2018 amendments to New Jersey surrogacy laws. These amendments lay out the specific requirements and steps for every gestational surrogacy in New Jersey. Only by following these restrictions can a surrogacy be safe and legal in this state.

To learn more about the surrogacy process in New Jersey, every intended parent and surrogate will need to contact (and work with) an experienced New Jersey surrogacy lawyer.

Q: Is compensated surrogacy legal in New Jersey?

A: No. New Jersey surrogacy laws specifically state that a gestational surrogate can only be paid “reasonable expenses,” including:

  • Attorney fees and other legal services
  • Reasonable living expenses, like food, clothing, medical expenses, shelter and counseling services

Compensated surrogacy arrangements are unenforceable in New Jersey, whether they are gestational or traditional. Both surrogacy paths allow for the payments of living expenses similar to those allowed in an adoption.

Q: Is traditional surrogacy legal in New Jersey?

A: Because of the complications and scandal of the “Baby M.” case back in 1988, traditional surrogacy is difficult to complete in New Jersey. A surrogate cannot be compensated, and there can be no pre-birth agreement, because of the surrogate’s genetic relationship to the child. Traditional surrogacy contracts are unenforceable, and an adoption after the child’s birth by any non-genetic intended parent will be required.

Only gestational surrogacy contracts are specifically permitted by state statute.

Q: What does a surrogacy agreement in New Jersey cover, and how does the legal process work?

A: New Jersey surrogacy laws lay out specific steps for the creation of a gestational surrogacy contract. Both parties must meet certain requirements before proceeding:

  • 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

A gestational surrogacy contract must be executed in writing by the gestational carrier, her spouse (if applicable) and each intended parent. It must be executed after the intended parents’ and surrogate’s screenings but before any other medical steps can begin. The contract must also lay out the express terms of the surrogacy, including the surrogate’s willingness to undergo embryo transfer and surrender custody of the child after birth, as well as her right to medical care decisions after notifying the intended parents. The intended parents’ responsibility to accept custody of the child after birth is also expressly stated.

On the other hand, traditional surrogacy contracts in New Jersey are largely dependent on the integrity of everyone involved, as they cannot currently be enforced in a court of law. Always speak with a New Jersey surrogacy attorney for more information about this surrogacy process.

Q: Are surrogacy contracts (whether compensated or altruistic) enforceable in New Jersey?

A: Currently, only gestational surrogacy contracts are enforceable in New Jersey. Traditional surrogacy contracts are unenforceable.

Q: What are the surrogacy laws in New Jersey on parentage orders?

A: Like they would in many states, some intended parents in New Jersey will be able to receive a parentage order while others will need to complete an adoption to establish their parental rights. Most notably, New Jersey surrogacy laws protect the rights of intended parents completing a gestational surrogacy to receive a pre-birth parentage order. As long as they have an enforceable contract, a pre-birth order is available, regardless of their genetic connection.

Establishing parentage in traditional surrogacy is a bit trickier, as the surrogate is legally the mother of her child and must terminate her rights according to New Jersey adoption laws. This can only be done at least 72 hours after birth. Again, speak with a local surrogacy attorney for more information about establishing parental rights in a traditional surrogacy.

Q: Are there any particular laws for parents outside the U.S. who complete a surrogacy in New Jersey?

A: No.

Q: When do intended parents need to complete an adoption after birth? 

A: Adoptions are necessary in traditional surrogacy cases, or in gestational surrogacy cases where the agreement is not enforceable (it does not meet state requirements). You should speak with a New Jersey surrogacy lawyer to learn more about this process and whether a post-birth paternity or maternity test can be used in your situation.

Q: Does New Jersey allow second-parent adoptions? Who would need to complete a second-parent adoption vs. a stepparent adoption (if applicable)?

A: Second-parent adoptions are legal in New Jersey, which means an unmarried same-sex couple (or unmarried heterosexual couple who used a donor gamete) who used traditional surrogacy can protect the parental relationship of the non-biological parents through an adoption. If intended parents are married, they can expedite the parental right process with a stepparent adoption instead.

Q: What happens in cases where intended parents use a donor egg, sperm or embryo?

A: As long as intended parents are completing a state-approved gestational surrogacy, the use of a donor gamete does not affect the ability of the non-biological parent to obtain a pre-birth order. New Jersey surrogacy laws state that a gamete donor is not the legal parent of the child thereby conceived and shall have no rights or duties to that child.

The use of donor sperm in a traditional surrogacy is a bit more complicated. In this case, a stepparent or co-parent adoption may need to be completed for a child born through surrogacy. To learn more about this legal process, we encourage you to speak with a local surrogacy attorney. In most cases, the rights of a donor will be terminated through a gamete bank, but anyone working with an identified donor may need to draft an additional donor contract.

Q: Are there any additional laws impacting same-sex surrogacy in New Jersey?

A: No, but same-sex couples (like heterosexual couples) should speak at length with a surrogacy attorney to determine what their legal process would entail in their New Jersey surrogacy.

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While people do continue to complete surrogacies in New Jersey, it is a complicated and potentially risky process, depending upon which path you choose. Before you start your surrogacy journey, it’s important that you completely understand the risks and advantages of working in this state to determine whether it is the right location for you.

If you are an intended parent or surrogate who lives in New Jersey, our surrogacy specialists at American Surrogacy can guide you through the journey ahead of you. To learn more about our agency program today, please call 1-800-875-2229(BABY) or contact us online.

State law information provided by:

Nina Rumbold and Denise Seidelman

Rumbold & Seidelman, LLP

914-779-1050

While we have made every effort to provide you updated and accurate information, the New Jersey surrogacy laws are always subject to change. This article is not intended as legal advice; we encourage you to speak with a New Jersey surrogacy attorney for the most accurate, updated information on the current state of surrogacy in New Jersey.