Overview of New Jersey Surrogacy Laws
In the Broadway hit musical Hamilton, Alexander and Philip Hamilton declare, “Everything’s legal in New Jersey.” This expression even rings true regarding gestational surrogacy! Gestational surrogacy is legal in New Jersey.
Surrogacy was not always legal in New Jersey as reflected in the famous “traditional surrogacy” case of Baby M. In traditional surrogacy, the surrogate has a genetic connection to the baby (i.e. the surrogate’s egg). What is currently legal in New Jersey is “gestational surrogacy”. In gestational surrogacy, the surrogate has no genetic connection to the child. Seinfeld fans may remember Jerry’s mechanic pulling what he called a “Mary Beth Whitehead”. In the “Bottle Deposit” episode, Jerry’s mechanic steals Jerry’s car after he feels that Jerry is not caring for the car properly. Mary Beth Whitehead, a traditional surrogate in New Jersey in the early 1980s entered into a surrogacy contract with William Stern and his wife, Elizabeth. Compensation of $10,000 was paid to Mary Beth and William’s sperm was inseminated into Mary Beth, with the use of Mary Beth’s egg, hence the reference of a traditional surrogate. The surrogacy contract provided that Mary Beth carry the pregnancy and relinquish her parental rights in favor of the Sterns. Within twenty-four hours after giving birth and transferring custody of the baby to William and Elizabeth, as required by the surrogacy contract, Mary Beth pulls a “Mary Beth Whitehead”, as referenced in Seinfeld. Mary Beth had a change of heart, chose to forsake the $10,000, and convinced the Sterns to give the baby back to her temporarily. Mary Beth fled New Jersey and went to Florida with the baby refusing to return the baby to the Sterns. Baby M, the pseudonym used in this media spectacle case of In the Matter of Baby M., 109 N.J. 396 (1988), raised the novel legal and social question about the meaning of parenthood and the ability to contract around issues of pregnancy and childbirth. The Sterns sued Mary Beth, and, following lengthy litigation, the court ultimately gave custody of the child to the Sterns with visitation rights granted to Mary Beth.
New Jersey has specific requirements for gestational surrogacy which became more clearly defined with the 2018 Gestational Carrier Agreement Act. This New Jersey surrogacy law provides the legal framework for enforceable gestational carrier agreements and pre-birth orders in New Jersey. The New Jersey surrogacy laws are established, in part, to provide, “consistent standards and procedural safeguards to promote the best interests of the children who will be born as a result of gestational carrier agreements executed.” Gestational surrogacy is legal and enforceable in New Jersey. The surrogate must not have a genetic link to the child, meaning the egg used must come from the intended mother or an egg donor. If you’re considering surrogacy in New Jersey, it’s important to work with an experienced New Jersey surrogacy attorney to navigate the state-specific legal requirements and ensure a smooth process.
The following are some notable legal requirements that must be included in a New Jersey surrogacy agreement. Some requirements of New Jersey surrogacy law pertain to the requirements of the surrogate, requirements of the intended parent(s), and requirements and obligations that pertain to language that must appear in the surrogacy agreement. New Jersey surrogacy laws also address the pre-birth parentage proceedings to confirm the parental rights of the intended parent(s).
New Jersey Surrogacy Law Requirements for Surrogate:
- Psychological Evaluation: The gestational surrogate is required to complete a psychological evaluation approving her suitability to serve as a gestational carrier
- Requirements of the Gestational Surrogate: The gestational surrogate must be:
- At least 21 years of age
- Has given birth to at least one child
- Has completed a medical evaluation approving her suitability to serve as a gestational surrogate
- Has completed a psychological evaluation approving her suitability to serve as a gestational carrier
- Has retained an attorney, independent of the intended parent, but for whose services the intended parent may pay, who has consulted with her about the terms of the gestational carrier agreement and the potential legal consequences of being a gestational carrier under the terms of this agreement
New Jersey Surrogacy Law Requirements for Intended Parent(s):
- Psychological Evaluation: The intended parent(s) must complete a psychological evaluation approving the intended parent’s suitability to participate in a gestational carrier agreement.
- Requirements of the Intended Parent(s):
- An intended parent who can pursue surrogacy in New Jersey can be persons who are single, married, partners in a civil union or domestic partnership, and couples who are not married or in a civil union or domestic partnership. This term shall include the intended mother, the intended father, the intended mother and intended father, the intended mother and intended mother, or the intended father and intended father
- Intended parent(s) must be represented by an attorney who consulted with the intended parent about the terms of the gestational surrogacy agreement and the potential legal consequences of the agreement
New Jersey Surrogacy Law Requirements for Surrogacy Agreement:
- Who Signs the New Jersey Surrogacy Agreement and When the Agreement is Signed:
- The surrogacy agreement is in writing and executed by the gestational carrier, her spouse or partner in a civil union or domestic partnership, if any, and each intended parent
- The surrogacy agreement is executed after the required medical and psychological screenings of the gestational carrier and the psychological screening of the intended parent, but prior to the commencement of any other necessary medical procedures in furtherance of the implantation of the pre-embryo
- The gestational carrier and her spouse or partner, if any, and the intended parent shall have been represented by separate attorneys in all matters relating to the gestational carrier agreement and each attorney provides an affidavit of such representation
- Terms Required of Gestational Surrogate in New Jersey Surrogacy Agreement:
- Language that the gestational surrogate shall undergo pre-embryo transfer and attempt to carry and give birth to the child and surrender custody of the child to the intended parent(s) immediately upon the child’s birth
- Language that the gestational surrogate has the right to medical care for the pregnancy, labor, delivery, and postpartum recovery provided by a physician, physician assistant, advance practice nurse, or certified nurse midwife of her choice, after she notifies, in writing, the intended parent of her choice
- An express term that, if the gestational carrier is married or in a civil union or domestic partnership, the spouse or partner agrees to the obligations imposed on the gestational carrier pursuant to the terms of the gestational carrier agreement and to surrender custody of the child to the intended parent immediately upon the child’s birth
- Terms Required of Intended Parent(s) in New Jersey Surrogacy Agreement:
- The intended parent(s) shall accept custody of the child immediately upon the child’s birth
- The intended parent(s) shall assume sole responsibility for the support of the child immediately upon the child’s birth
- Other Provisions in New Jersey Surrogacy Agreement:
- The gestational surrogacy agreement shall include a provision setting forth the financial responsibilities of the parties and shall include a provision that the intended parent(s) shall pay the gestational carrier’s reasonable expenses unless expressly waived, in whole or in part, in writing by the gestational carrier
- The breach of the gestational carrier agreement by the intended parent(s) shall not relieve the intended parent(s) of the support obligations imposed by the intended parent(s) and child relationship created by the provisions.
New Jersey Parentage Proceedings:
The New Jersey surrogacy statute sets out specific guidelines and procedures for the parentage proceedings to confirm the parental rights of the intended parent(s).
- Parties and Agreement Must Satisfy New Jersey Surrogacy Laws:Provided that the gestational carrier, intended parent(s), and the gestational surrogacy agreement satisfy the eligibility requirements of New Jersey surrogacy laws, immediately upon the birth of the child(ren), the intended parent(s) will be the legal parent(s) of the child. The surrogate and her spouse/partner will not be the legal parents of the child(ren).
- When and Where to File New Jersey Parentage: To establish the parent/child relationship with the intended parent(s), after the gestational carrier becomes pregnant in accordance with the gestational carrier agreement, the intended parent(s) shall file a complaint for an order of parentage with the Superior Court, Chancery Division, Family Part of the county of the child’s anticipated birth or the intended parent’s or gestational carrier’s county of residence. New Jersey surrogacy specifies what needs to be attached to the court pleadings for parentage.
Greenspoon Marder’s Third Party Assisted Reproductive Technology Practice Group can assist with New Jersey gestational surrogacy matters which would generally be applicable if the surrogate resides in New Jersey and plans to give birth in New Jersey. Greenspoon Marder can also assist with New Jersey-based estate planning needs, which estate planning services are a best practice for New Jersey surrogacy matters. Greenspoon Marder has an office located in Newark, New Jersey.
