Christie Veto of Gestational Carrier Bill Unlikely to Affect Surrogate Parents

While reaction to Gov. Chris Christie’s recent veto of a bill that would have authorized gestational carrier agreements was strong on both sides -- pro and con -- in the short term legal experts say it is likely to have little impact on surrogate parenting in New Jersey.

The bill, S-1599, known as the “New Jersey Gestational Carrier Agreement Act,” would have authorized written contracts in which a woman agrees to carry and give birth to a child with whom she has no genetic relationship. The legislation sets out the circumstances when a child is created, using "assisted reproduction" on behalf of an intended parent.

According to the legislation, after the child is born, the intended parent becomes the legal parent of the child and the gestational carrier would have no parental rights. This differs from traditional surrogacy where a woman is artificially inseminated with the semen of the intended father and gives birth to a child through the use of her own egg. Gestational surrogacy is now possible due to advancements in reproductive technology.

Supporters of the legislation contend that if passed, the bill would provide protection for the gestational carrier, the intended parents and, the child.

In a letter to the state Senate, Gov. Christie said: "permitting adults to contract with others regarding a child in such a manner unquestionably raises serious and significant issues." He also noted that the legislation could result in "change in the traditional beginnings of a family."

State Sen. Joseph F. Vitale (D-Middlesex), a co-sponsor of the bill, said that he intends to reintroduce the bill in the senate and expects to further discuss the legislation with the governor.

Donald Cofsky, a Haddeonfield attorney who represented the couple whose case was the catalyst for the legislation, said that the governor's veto doesn't have much impact because the practice of gestational surrogacy is legal.

Introducing Baby M

"There are only really two major court decisions that deal with gestational surrogacy since the Baby M case, and neither say that you can't do it, and in fact to the contrary, it's been the accepted way of life in New Jersey now for years," Cofsky said.

The Baby M case became famous in the 1980s when the New Jersey Supreme Court declared surrogacy contracts void and against state policy, but later when deciding parental rights, chose the biological father over the surrogate mother, due to “the best interests of the child.” But Baby M was not a gestational carrier case, and since then it has been argued that the Baby M case should only apply to true surrogacy.

Cofsky's case, which is the basis for S1599, involved a husband's sperm but not the wife's egg. The wife was infertile and the egg came from an anonymous donor obtained through a clinic. The husband's sperm was used to fertilize the egg and the embryo was transferred to the gestational carrier. Cofsky obtained an order based on a previously established legal procedure that the gestational carrier signed-off on.

Cofsky, who is president-elect of the American Academy of Adoption Attorneys, said that the New Jersey Attorney General's office filed a motion to set aside the order on the basis that both parents have to be the genetic parents. Cofsky said that the attorney general had no problem with the gestational carrier not being on the birth certificate, but declared that only the genetic father should be on it and his wife should file for a stepparent adoption. Cofsky filed for certification with the New Jersey Supreme and is currently waiting for an opinion.

"The basis for my argument is that if it was the wife's egg and the husband was infertile, under the artificial insemination act and the parentage act and none of the parents object, he'd still be the father from the beginning. So why does an infertile wife have to go through an adoption when an infertile husband shouldn't," Cofsky said.

Cofsky said that the problem with gestational surrogacy is that it is unregulated and that there's no certainty when it comes to either the intended parents or the gestational carrier. "By certainty I mean who is responsible for what, and most importantly, how are the child's rights protected. Currently there's nothing that protects the child," Cofsky said.

Under the terms of S-1599, the intended parents agree to accept custody immediately upon the birth of the child and assume sole responsibility for the support of the child. In addition, the bill states that a parent and child relationship established by a valid gestational carrier agreement is the foundation for a child support order and an intended parent would be legally obliged to support the child even in the event that the intended parent breaks the agreement.

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