New Jersey Surrogacy Laws 101: Everything You Need to Know

On May 30, 2018, New Jersey Governor Phil Murphy signed the New Jersey Gestational Carrier Agreement Act into law.  The New Jersey Surrogacy law finally brings New Jersey into the modern age of surrogacy.

For decades, New Jersey surrogacy law declared surrogacy agreements to be contrary to New Jersey public policy. The infamous “Baby M.” surrogacy case, which took place back in 1988, resulted in a custody dispute between a traditional surrogate and the intended father. This early surrogacy case set a precedent for New Jersey surrogacy laws that lasted for decades.

Recognizing that advances in medical technology offer important family-building options, the New Jersey legislature determined that gestational carrier agreements are no longer against the public policy of the state, provided the surrogate is not genetically related to the child and that the agreement meets the standards and procedural requirements of the NJ Gestational Carrier Agreement Act. Today, intended parents and surrogates can pursue a legally protected surrogacy arrangement in New Jersey and obtain a pre-birth order declaring the intended parents to be the legal parents of their child at birth.

As experienced New Jersey surrogacy attorneys, we can guide you through the surrogacy process, including creating an enforceable surrogacy contract according to NJ surrogacy laws to ensure the intended parents’ rights are established upon the birth of the child. For more information about our services, please call our law firm at 914-779-1050 or contact us online.

5 Things to Know About the New NJ Surrogacy Laws

Surrogacy laws in New Jersey can be complicated, but our legal team is here to help. In general, there are five important aspects of the law you should  be aware of if you are considering this path in New Jersey:

1. Only gestational surrogacy contracts are enforceable.

Only gestational carrier agreements are enforceable under the New Jersey act. This means that the prospective surrogate must not have contributed the egg used to conceive the child she’s carrying.  Instead, the  embryo must have been conceived either from the intended parents’ sperm and egg or from gametes the intended parents obtained through a gamete donation. When a surrogate is genetically related to the child she carries, the process will be treated as an adoption and any surrogacy contract the parties sign will be unenforceable.

2. Surrogates and intended parents must meet certain legal requirements.

Most surrogacy professionals follow the recommendations of the American Society for Reproductive Medicine when determining whether intended parents and surrogates are eligible to participate in the surrogacy process. However, some states establish their own requirements for participation in a legally enforceable surrogacy arrangement. That is the case with the new surrogacy law in New Jersey.

According to New Jersey law the Parties must meet the following eligibility criteria:

Intended Parents Must:

  • Complete a psychological evaluation approving their suitability to participate in a gestational carrier agreement
  • Be represented by an attorney who consults with them about the terms of the agreement and potential legal consequences

Prospective Surrogates Must:

  • Be at least 21 years old
  • Have given birth to at least one child
  • Complete a medical evaluation
  • Complete a psychological evaluation
  • Be represented by a separate attorney (whom the intended parents may pay for) who consults with the surrogate about the terms of the surrogacy agreement and the potential legal consequences of becoming a surrogate in New Jersey

When you work with our legal professionals, we will make certain that all parties meet the legal requirements necessary to ensure that the agreement will be legally enforceable at the time the child is born.

3. Gestational carriers are entitled to receive payments for reasonable expenses throughout their pregnancy and postpartum recovery.

Although a surrogate cannot receive compensation for her services, she may receive payment for the reasonable expenses she incurs such as: medical, hospital, counseling or other similar expenses; attorney fees and other legal costs; and reasonable living expenses. The law allows a surrogate to receive payment of her living expenses throughout her pregnancy and for a recuperative period after delivery. Your surrogacy attorney will detail the permissible payments in the contract to ensure all expenses are accounted for and that you are in full compliance with New Jersey law.

4. Pre-birth orders are possible for intended parents.

As long as intended parents follow the requirements of the New Jersey surrogacy act and enter into a legally compliant agreement, they can obtain a pre-birth parentage order, regardless of their genetic relationship to the child or their marital status. This pre-birth order will name the intended parents as the legal parents of the child before birth and, after birth, the document will be filed with the appropriate vital records office. This will result in the intended parents being named as the parents on the child’s birth certificate.

The surrogacy attorneys at the law firm of Rumbold & Seidelman will help you gather and file the necessary documentation to obtain a pre-birth order of parentage in your New Jersey surrogacy arrangement.

5. Gestational carrier agreements must conform to specific standard for it to be legally enforceable..

The surrogacy agreement must be in writing and executed by the gestational carrier, her spouse (if applicable) and each intended parent. The carrier and intended parents must have separate legal representation during this process. The agreement must be signed by all parties before starting the medical procedures relating to the embryo transfer.

Once necessary psychological and medical screening is completed by both parties, your attorney can begin drafting the contract. Your attorneys will make sure the contract adheres to the statutory requirements which mandate that the following provisions are included:

  • The gestational carrier’s agreement to:
    • Undergo an embryo transfer process (and its accompanying medical protocols) and attempt to carry and give birth to a child
    • Surrender custody of the child to the intended parents after birth
    • Make her own medical decisions after she notifies the intended parent(s) of her wishes in writing
  • The gestational carrier spouse’s agreement to also comply with the terms of the agreement, if applicable
  • The intended parent(s)’ intention to:
    • Accept custody of and legal responsibility for the child after birth
    • Assume sole responsibility for the support of the child after birth

The terms set forth in the statute are the minimum requirements for the agreement to be enforceable.  A well-drafted gestational carrier agreement should contain many other terms designed to protect the parties and ensure that the parties’ expectations and responsibilities are clear. In short, the surrogacy contract should serve as a roadmap for your New Jersey surrogacy journey.

Surrogacy is legal in New Jersey, but you will need an experienced surrogacy professional to guide you through the path ahead. Our surrogacy attorneys at Rumbold & Seidelman are ready to help you when you have found a surrogacy partner. Please contact our law firm today for more information about surrogacy laws in New Jersey and how they may affect your surrogacy process.

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