For New Jersey couples interested in starting their families through a surrogate, things just because easier. In late May, New Jersey Governor Phil Murphy signed into law Senate Bill 482, the New Jersey Gestational Carrier Agreement, legally recognizing binding gestational carrier or surrogacy agreements. New Jersey is now one of twelve states, including Delaware, Florida and Illinois, that have legalized surrogacy contracts.
New Jersey lawmakers first began drafting surrogacy legislation in response to the 1989 New Jersey Supreme Court Baby M ruling, which voided traditional “surrogacy for hire” contracts. Baby M was born to a woman who had been inseminated with the sperm of an intended father. The Court held that surrogacy contracts were illegal and unenforceable as violating public policy and Baby M was recognized as the legal child of the inseminated woman. The new law covers the much more common gestational surrogacy in which the egg of the intended mother (or donor) is fertilized outside the womb through in-vitro fertilized and implanted in the surrogate’s womb.
Stronger Protection for All Parties
By legally permitting gestational surrogacy agreements, the new law protects all involved parties, including the gestational carrier, the intended parents, and the child. Surrogates are required to forfeit all maternity rights under the law. Intended parents must agree to become the legal parent of the child immediately after birth and will be listed as such on the birth certificate. The surrogate must be allowed to choose their own medical providers for the pregnancy, labor, delivery and postpartum care.
In order for the surrogacy contract to be legally binding, certain requirements must be met. The contract must clearly state the surrogate’s agreement to undergo the pre-embryo transfer procedure, carry and give birth to the unborn child and immediately surrender custody of the child to the intended parents. The law requires that the gestational carrier be at least 21 years old and must have given birth previously.
Under the new law, these surrogacy agreements will not conflict with New Jersey’s adoption laws as the surrogacy agreement is not considered a surrender of custody or termination of parental rights. An enforceable surrogacy contracts permits the child’s intended parents who commissioned the surrogacy with the intent of raising the child as their own to override certain legal presumptions including that a woman who gives birth to a child is the child’s legal mother as well as the “martial presumption”, which assumes the husband of a women who gives birth is the legal father of the child.
Planning a Family Through Surrogacy
Surrogacy continues to be an expensive option for individuals seeking to start their family through alternative means. Intended parents may reimburse the surrogate for reasonable expenses including medical expenses, hospital fees, counseling costs and living expenses during the pregnancy and postpartum recovery. Surrogacy involves in-vitro fertilization and hormone treatments that can cost thousands of dollars. Intended parents are also responsible to pay the legal fees of the surrogate who may choose their own attorney to represent them in drafting the agreement.
Opponents to the newly passed legislation argued that surrogacy agreements potentially violate the due process rights of the unborn child and leave surrogates open to exploitation. Former Governor Chris Christie twice vetoed the legislation in 2012 and 2015, citing concerns with the potential harm of the surrogacy process.