New Surrogacy Law Offers New Hope for Infertile Couples

Infertile couples in New Jersey now have a new legal option for starting or expanding their families.

It’s surrogacy, or the act of intended parents entering into a contract with a woman — a surrogate — who carries and gives birth to their baby.

Surrogacy is certainly not a new idea. But what is new is the New Jersey Gestational Carrier Act, a law change that reverses an almost 30-year ban on these surrogacy contracts.

Moving Beyond Baby M

Do you remember Mary Beth Whitehead, the surrogate who refused to surrender “Baby M” to intended parents William and Elizabeth Stern? In was in the 1989 ruling in this controversial matter that New Jersey’s highest court found surrogacy contracts to be invalid, sparking a national debate about the legality of surrogacy.

Almost three decades later, the status of surrogacy in New Jersey is finally changing. With the passage of the New Jersey Gestational Carrier Act, recently signed into law by Governor Phil Murphy, New Jersey now joins 11 other states in declaring gestational carrier (aka surrogacy) contracts to be legal and enforceable — as long as they follow certain guidelines.

New Gestational Carrier Agreement Rules

New Jersey’s Gestational Carrier Act is a giant leap forward for infertile couples, same-sex LGBT couples, and other individuals wishing to have a baby via a surrogate. It also provides surrogates with protections and rights.

Key provisions of the Gestational Carrier Act include:

• Personal qualifications: A gestational carrier must beat least 21 years old, have given birth to at least one child, completed medical and psychological evaluations and retained an attorney independent of the intended parent or parents. She may not be genetically related to the child she will carry, meaning that only a donor egg may be used (i.e., from the intended mother or from an anonymous donor). To become pregnant, surrogates must be willing to undergo in vitro fertilization (IVF).

• Intended parents must also have undergone a psychological exam prior to establishing the contract. Intended parents may be married or not, and can be a single individual.

• Agreements must include language that allows the gestational carrier/surrogate to choose her own medical care for reproductive and prenatal care, labor, delivery and postpartum care. Intended parents are permitted to pay for medical care, as well as living expenses and legal costs associated with the agreement.

• Once the carrier becomes pregnant, parents must file with the courts to be named on the child’s birth certificate. The child’s birth certificate will name the intended parents as the sole legal parents of the baby. No adoption will be needed.

With the passage of the Gestational Carrier Act, it’s the dawning of a new era for surrogacy in New Jersey. Some couples spend years trying IVF and other fertility treatments, and it takes its toll physically and emotionally. The ability to work with a surrogate in the transparent manner prescribed by the law will surely open up new avenues for many more couples and individuals to realize their dream of having a baby.

If you are interested in surrogacy, speak with a family law attorney about how to best safeguard your rights in becoming a parent.