Big Step For New Jersey Gestational Surrogacy Bill

It’s all but certain that third time’s a charm for hopeful parents-to-be in New Jersey who wish to their baby via surrogacy and need to establish a legal gestational carrier agreement.

On April 12, 2018, the New Jersey Legislature passed a long-awaited bill to make written surrogacy agreements legal in the state, reversing a three-decade ban on gestational carrier agreements that followed in the wake of the controversial Baby M surrogacy case. In recent years, two other bills to legalize surrogacy contracts were both vetoed under former Governor Christie. It’s expected that Governor Phil Murphy will approve the current gestational carrier legislation.

As more and more couples are turning to surrogacy as an option to grow their families, especially given the rise of same-sex couples interested in surrogacy as a path to parenthood, proponents of the bill say the time has come to legalize these agreements.

Here’s a closer look at the gestational carrier bill and what parents and surrogates can expect with from the new law. 

The Legacy of Baby M

Gestational carrier agreements have not been permitted since the famous Baby M case, where William Stern entered into a surrogacy agreement with Mary Beth Whitehead, whom he and his wife Elizabeth Stern found through a newspaper ad. According to the agreement, Mary Beth Whitehead would be inseminated with William Stern’s sperm, have the baby, and then give up her parental rights to the child so that William’s wife, Elizabeth could formally adopt.

After the birth, however, Mary Beth changed her mind and decided to keep the child. William and Elizabeth Stern then sued to be recognized as the child’s legal parents. The court found that the surrogacy agreement was against public policy and declared Mary Beth as the child’s mother.

New Protections for Parents and Surrogates

If this new bill passes, upon entering into a surrogacy agreement, the surrogate mother is required to immediately relinquish all parental rights to the child, including rights to custody, parenting time or support. When Governor Christie vetoed two similar bills in the past, his vetoes seemed largely based on a his concern that not enough research had been done by the legislature to determine the ethical ramifications of allowing such a bill to pass. He stated in 2012, “”While some will applaud the freedom to explore these new, and sometimes necessary, arranged births, others will note the profound change in the traditional beginnings of a family that this bill would enact.”

Senator Joseph Vitale, D-Middlesex, a key proponent of the bill, provided counterpoint to these objections in a statement released earlier this year: “For men and women who are looking to start or expand their families but have struggled to do so through traditional means, gestational carrier agreements offer an alternative path to having children. Gestational carrier agreements are imperative to protect the interests of all parties involved, including the carrier, the intended parents, and the child. This bill will provide the legal framework for the agreements.”

According to the New Jersey Law Journal, the bill’s main components include:

• The gestational agreement would have to clearly state that the gestational carrier would agree to undergo pre-embryo transfer, to attempt to carry and give birth to the child, and to surrender custody of the child to the intended parent immediately on the birth of the child.
• The agreement would allow for the gestational carrier to choose her own medical care for the pregnancy, labor, delivery and postpartum care.
• The agreement would not be considered an adoption, a surrender of custody, or a termination of parental rights.

Other states including Arkansas, Delaware, Florida, Illinois, Nevada, New Hampshire, Tennessee, Texas, Utah, Virginia, Washington state and Wisconsin, along with the District of Columbia, allow for similar gestational surrogacy contracts wording to some degree.

We are closely watching progression of this bill and will provide updates as they become available.

Are you trying to have a baby via surrogacy and want to understand your rights and options as the law currently stands in New Jersey? We can help. Please contact us to schedule a confidential consultation with one of our skilled family law attorneys. Call today: (888) 888-0919.

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