Legality of Surrogacy in New Jersey
New Jersey has comprehensive protections for intended parents and gestational surrogates, which were established by state law in 2018. This makes New Jersey a safe and supportive state to pursue building a family through surrogacy! New Jersey outlines specific requirements for the surrogacy process, which we can guide you through.
Requirements.
In New Jersey, a surrogate must be 21 years old and must have given birth at least once before. Our agency will pre-screen New Jersey surrogate candidates to make sure they meet these basic requirements. Surrogates and intended parents must complete a medical and psychological evaluation and retain independent counsel. Intended parents pay for the surrogate’s legal fees, in addition to reasonable medical expenses incurred in connection with the surrogacy arrangement. New Jersey law specifies that surrogacy agreements must provide that the surrogate has the right to choose her own medical provider for the pregnancy, labor, delivery, and postpartum care. All of these requirements, which your attorney will explain step-by-step, will be reflected in the surrogacy contract. Once everyone signs the contract, the contract is considered “executed”, and the embryo transfer can be scheduled. (Yay! Hopeful parents are one step closer to their baby!)
Securing Legal Recognition For The Parents.
New Jersey requires that intended parents file for a pre-birth order (PBO) with the Superior Court. The PBO asks the court to affirm the legal parentage of the child. An attorney will typically initiate this process during the second trimester of pregnancy. The PBO must include affidavits from the intended parents’ and surrogate’s attorneys, as well as a statement from the medical facility confirming that all legal requirements were followed. Upon proof that the arrangement meets the legal requirements, the court will issue a PBO that can be used to direct the vital statistics office to put the intended parents’ names on the birth certificate automatically. This often occurs at a court proceeding, though some New Jersey jurisdictions may issue PBOs “on the papers”, which means that a judge will issue the order without a hearing based on the information provided in the affidavits. If a hearing is scheduled, but parentage is not contested, some judges may only require attorneys to attend, and not the parties. Your attorney can walk you the steps of this process particular to your jurisdiction.
Unique History of Surrogacy in New Jersey
Today, surrogacy is a legal and protected practice in New Jersey. However, that was not always the case. In 1989, the New Jersey Supreme Court issued the first-ever ruling on surrogacy in the notorious Baby M case. The case concerned a genetic surrogate (also known as a “traditional surrogate” -- one who uses her own eggs), who signed an agreement with the intended parents consenting to carry a child, conceived with the father’s sperm, for the intended parents. When the surrogate decided to keep the child after birth, the intended parents sued to gain full parental rights. Infamously, the New Jersey court ruled that the surrogacy contract violated public policy and recognized the surrogate as the legal mother. The ruling had a long and unfortunate legacy—for 29 years, surrogacy was illegal in New Jersey.
The Baby M case sparked a national debate about the ethics of surrogacy. Though no state had enacted a single law regarding surrogacy before the case, 70 surrogacy bills were introduced in 27 state legislatures before the New Jersey court even issued its opinion. Only one year after the Baby M case was filed in court, 6 states had passed laws prohibiting surrogacy. The biggest problem with these anti-surrogacy laws was that they did not distinguish between genetic (traditional) surrogacy, where the surrogate uses her own eggs, and gestational surrogacy, where the embryo is formed from the intended mother’s eggs or from an egg donor.
In the US today, a large majority of all surrogacy arrangements are gestational. As gestational carriers are never genetically related to the child, the ethical and legal implications of this practice are distinct from those that arise from genetic surrogacy. As gestational surrogacy became a more common practice and better understood by the public, a campaign to reform New Jersey’s anti-surrogacy statute gained popularity.
In 2012 and 2015, bills legalizing surrogacy were approved by the New Jersey legislature. However, they were both vetoed by Republican Governor Chris Christie. Democratic Governor Phil Murphy improved the prospects of a surrogacy bill after he took over in 2017. In May 2018, the New Jersey Gestational Carrier Act officially legalized gestational surrogacy, overturning the outdated precedent established by Baby M. The passage of the bill was a huge victory for same-sex couples and couples experiencing infertility in New Jersey.