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.  This new gestational surrogate NJ legislation 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 — until now.

Recognizing that advances in medical technology offer important family-building options, the New Jersey legislature determined that gestational carrier agreements are not 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 legally protected surrogacy 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 888-962-3001 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 you understand what the recent changes in state law will mean for you. In general, there are five important aspects of the new surrogacy legislation 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 cannot have contributed the egg used to conceive the child she’s carrying.  Instead, the  embryo implanted in her uterus must be 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 laws in New Jersey.

According to these laws, intended parents must:

  • Complete a psychological evaluation approving the intended parent’s 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 in New Jersey 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 base 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 proper 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 NJ surrogacy laws and enter into a legally proper gestational carrier 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, which will then issue a birth certificate naming the intended parents as the child’s legal parents.

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

5. Gestational carrier agreements must be created according to certain standards.

The parties to  a New Jersey surrogacy arrangement must meet the requirements, described earlier, in order to  draft a legal surrogacy contract. New Jersey surrogacy laws also require that the contract meets specific standards to be deemed enforceable in court. 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 should 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 intention 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 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 those terms, if applicable
  • The intended parent(s)’ intention to:
    • Accept custody and legal responsibility of 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 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 or if you need assistance to locate one. 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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  • Bronxville, NY 10708
  • Tel: 914-779-1050

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