Some would say it’s a long time coming. From all appearances, it looks like New Jersey Surrogacy Laws are about to change. Just last week, both branches of state government approved a bill regarding gestational carrier agreements. During Governor Chris Christie’s tenure, he vetoed two bills on the issue. Nevertheless, by all appearances, Governor Phil Murphy will sign the legislation into law.
It looks to be an exciting time for many would-be parents. For some, it’s the answer to fertility problems. For same-sex couples, surrogacy offers a way to bring a newborn into the world. For others, pregnancy creates a tremendous risk and may jeopardize the mother’s health.
As you may know, gestational carriers are women who agree to carry and deliver a pregnancy for someone else. The gestational carrier is not biologically related to the child she is carrying at all. According to the proposed law, a gestational carrier is formally defined as a “woman 21 years of age or older who agrees to become pregnant for an intended parent by assisted reproductive technology without the use of her own egg.”
To date, gestational surrogacy is not illegal in New Jersey. However, gestational carrier agreements are not enforceable. This new law would legitimize agreements with specific legal requirements.
Meanwhile, traditional surrogates also refer to women who carry and deliver children for someone else. However, the difference is that since the egg comes from the surrogate, she is genetically linked to the baby she carries. This became an issue in the 1988 landmark Baby M. case.
Baby M Case and New Jersey Surrogacy
It goes without saying that Baby M. is a pseudonym used to protect the infant’s identity. The case received national media attention, as it was the first legal ruling concerning surrogate mothers.
According to the facts of the case, the Sterns were a married couple who wanted to have a family. Since Elizabeth Stern was infertile, the couple decided to seek out someone to carry their baby. They found Mary Beth Whitehead in a newspaper advertisement. Ultimately, Mary Beth was artificially inseminated with William Stern’s sperm and became pregnant.
A contract was signed between the parties, with the plan being that Mary Beth would give up parental rights after birth. Subsequently, Elizabeth Stern would become the adoptive mother.
One problem. Mary Beth found she became attached to the child during pregnancy and decided she wanted to keep her. In the end, the court found that the surrogacy contract was invalid. Ultimately, Mary Beth was granted visitation rights, while the Sterns were awarded custody.
Gestational Carrier Agreements
Under the new law, gestational carrier agreements would be legal. However, there are some strict guidelines. First, the gestational surrogate must be at least 21 years old and have already given birth to a child. She will also need to undergo both medical and psychological evaluations.
Gestational carriers must also be represented by legal counsel. However, under the proposed legislation, the intended parents may pay attorneys’ fees on her behalf. If the gestational surrogate is married, her spouse must also sign the gestational carrier agreement. Expectations of the gestational surrogate as expressed in the gestational carrier agreement include:
- Surrogate must undergo pre-embryo transfer and attempt to carry and give birth to the child;
- Surrogate must surrender custody of the child to the intended parent immediately upon the child’s birth; and
- Surrogate must have the right to medical care for the pregnancy, labor, delivery, and postpartum recovery provided by a physician, advance practice nurse, or certified nurse midwife of her choice, after she notifies, in writing, the intended parent of her choice.
By the same token, the intended parents are also bound by the gestational carrier agreement. They are expected to accept custody of the child immediately upon the child’s birth. Also, they must assume sole responsibility for the support of the child immediately upon the child’s birth.
Although we have used the plural of parents to discuss obligations, a single person may enter into a gestational carrier agreement as well. Marital status is not an issue.
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