New Jersey has transformed its approach to surrogacy. With the enactment of the New Jersey Gestational Carrier Agreement Act, the state now provides a secure statutory framework for intended parents and surrogates.
However, accessing these benefits requires strict adherence to the law. That's where your surrogacy contract becomes such a vital piece of a successful journey.
American Surrogacy works to create a surrogacy contract that ensures all parties involved are legally protected and supported. Contact us today to get free surrogacy information and speak with a specialist who can guide you through the legal process in New Jersey.
What Should Be Included in a Surrogacy Contract?
In New Jersey, a surrogacy contract is a statutory requirement for establishing legal parentage. The 2018 Act dictates exactly what must be in the agreement for it to be valid.
A compliant New Jersey surrogacy legal agreement must be in writing and signed by the surrogate, her spouse (if applicable), and the intended parents. It generally includes:
- Financial terms: A detailed breakdown of "reasonable expenses," which New Jersey law explicitly allows. This covers living expenses, medical costs, legal fees, and counseling.
- Parental rights: A clear statement that the intended parents are the sole legal parents and that the surrogate surrenders custody immediately upon birth.
- Medical and legal risks: An acknowledgment of the risks associated with IVF and pregnancy, along with an agreement on the number of embryos to be transferred.
- Eligibility confirmation: Verification that the surrogate is at least 21 years old and has given birth to at least one child previously, as required by state law.
Because the statute is so specific, drafting your own contract is risky. Working with an agency confirms that every statutory requirement is met.
Legal Clearance: The Final Step Before Transfer
In New Jersey, the timing of your contract is a matter of law. The Gestational Carrier Agreement Act mandates that the contract be executed after medical and psychological screenings but before the embryo transfer or any other medical procedures to start the pregnancy.
"Legal clearance" confirms you have followed this timeline. The process involves:
Step 1: Drafting The intended parents' attorney drafts the agreement to comply with the 2018 Act.
Step 2: Independent Counsel New Jersey law requires that the surrogate and intended parents be represented by separate attorneys. This prevents conflict of interest and confirms the surrogate fully understands her rights.
Step 3: Negotiation The attorneys refine the terms regarding compensation, insurance, and contingencies.
Step 4: Signing The contract is executed by all parties.
Step 5: Clinic Notification Your attorneys send a legal clearance letter to the fertility clinic, authorizing them to proceed with the medical cycle.
Can Surrogacy Contracts be Enforced in New Jersey
The 2018 Act explicitly states that a valid gestational carrier agreement is enforceable. This means the courts will uphold the terms regarding parentage and financial responsibilities.
Traditional surrogacy contracts (where the surrogate uses her own egg) remain unenforceable in New Jersey. If you attempt a traditional surrogacy arrangement, the surrogate can legally change her mind and assert parental rights. This is why agencies almost exclusively facilitate gestational surrogacy, where your rights are statutorily secure.
What Happens if a Surrogacy Contract Is Breached?
Because New Jersey contracts are backed by statute, the remedies for breach are clearer than in many other states.
- Financial breaches: If intended parents fail to pay agreed-upon expenses, the court can enforce the contract and require payment. The law states that a breach by the intended parents does not relieve them of their support obligations to the child.
- Behavioral breaches: If a surrogate violates specific clauses (like travel restrictions), the contract will outline financial penalties, but a court will not physically force her to comply with a behavioral mandate against her will.
Fair Surrogacy Compensation and Payment Structure
New Jersey law permits payment for "reasonable expenses," which is interpreted broadly to allow for standard surrogate compensation. This ensures that surrogates are fairly reimbursed for the physical and emotional demands of the process.
Your contract protects these funds through a bonded escrow account. This provides security for both sides: the surrogate knows the funds are set aside before she becomes pregnant, and the intended parents know payments are only released when specific contract milestones are met.
Medical Decisions and Control During Pregnancy
The contract balances the intended parents' desire to be involved with the surrogate’s right to bodily autonomy.
The agreement typically grants intended parents the right to select the physicians and be present for appointments. It also ensures they have access to all medical information regarding the pregnancy.
However, the contract must explicitly state that the surrogate has the right to medical care of her choice. While you can agree on a birth plan and medical preferences, no contract can legally force a woman to undergo a specific medical procedure (like a C-section) if she revokes consent in the moment. This makes the matching process important—you need to trust your partner, not just the paper you signed.
Termination and Selective Reduction Clauses
New Jersey has strong protections for reproductive freedom, which impacts how these clauses are written.
Your contract will detail the specific circumstances under which the intended parents would request a termination or reduction (e.g., severe genetic anomalies). However, you cannot legally compel a surrogate to terminate a pregnancy against her will.
The contract can outline financial consequences if the surrogate refuses a request that was previously agreed upon, but it cannot force a medical outcome. Discussing these sensitive topics upfront is the only way to ensure you are aligned.
Lifestyle Clauses
Intended parents often want assurance that the pregnancy will be handled with care. The contract sets these expectations in writing.
Common provisions in New Jersey surrogacy contract include:
- Travel restrictions: Avoiding travel to at-risk areas or travel late in pregnancy to ensure delivery happens at a New Jersey hospital.
- Diet and substance use: Agreements to follow OB-GYN recommendations and avoid alcohol, tobacco, and drugs.
- Living environment: Ensuring a stable and safe home environment, confirmed by the agency's background checks.
Delivery Plans and Post-Birth Expectations
Thanks to the 2018 Act, establishing parentage in New Jersey is streamlined and efficient.
- Pre-birth orders: New Jersey courts routinely grant pre-birth orders, which declare the intended parents as the legal parents before the baby is born.
- Birth certificates: The order directs the Office of Vital Statistics to place the intended parents' names on the original birth certificate, with no need for a post-birth adoption in most cases.
Your contract will also outline the birth plan, clarifying who cuts the cord and who holds the baby first.
Insurance Requirements
New Jersey is one of the states that mandate IVF coverage for certain residents, but this mandate does not always extend to surrogacy.
Your contract will require a review of the surrogate's health insurance policy. If her plan contains a "surrogacy exclusion," the intended parents are contractually obligated to purchase a standalone surrogacy insurance plan. Additionally, the contract will likely require the intended parents to fund a life insurance policy for the surrogate to protect her family.
Agency vs. Independent Surrogacy
Because New Jersey's law is specific, attempting an independent surrogacy arrangement is risky.
If you fail to use independent counsel, or if you sign the contract at the wrong time (e.g., after starting medication), your entire agreement could be vulnerable.
An agency acts as your safeguard. We verify that all statutory requirements of the 2018 Act are met, manage the complex logistics of insurance and escrow, and handle the business side of the arrangement so you can focus on the human connection.
Ensure Your New Jersey Surrogacy Contract Covers Every Detail
The New Jersey Gestational Carrier Agreement Act offers legal security, but only if you follow the rules precisely. A professionally managed contract allows you to access these protections.
You don't have to navigate these statutes alone. Contact us today to get free surrogacy information and learn how American Surrogacy helps you build a safe, secure path to parenthood in New Jersey.