With the advent and increase in same-sex marriage and relationships in the United States, more and more LGBT families are looking to expand their families and welcome children through the use of a gestational carrier, aka surrogacy. But, is this possible in New Jersey? Is surrogacy allowed and if so, what steps should you take to ensure a secure and smooth path to parenthood?
Surrogacy in New Jersey: Know the law
The law in New Jersey with regard to gestational surrogacy has remained well-defined since the famous Baby M case made headlines across the nation. In that case, the Sterns, a married couple who could not conceive, used a surrogate, Mary Beth Whitehead, who was artificially inseminated with Mr. Stern’s sperm. They all signed a surrogacy contract that indicated Ms. Whitehead would turn the child over to the Sterns, but she changed her mind. In the end, the New Jersey Supreme Court ruled that the contract they signed was invalid and, in effect, ruled that all surrogacy contracts such as this one, are invalid in New Jersey. Today, while surrogacy is not illegal, entering into a contract for surrogacy is. And, no payment can be made to the surrogate that goes beyond the basic care for the mother during pregnancy. Further, the birth mother has 72 hours after the child’s birth to change her mind with no repercussions.
However, several bills have been through the New Jersey legislature over the recent years that would allow for more leeway for couples interested in surrogacy buy permitting legally binding surrogacy contracts. Two such bills have been vetoed by Gov. Chris Christie and another now waits in the Assembly. The ultimate fate of the bill remains uncertain.
Talk to an experienced family law attorney
Because this is an evolving area that could change at any time, it is critical that you and your partner seek the advice and counsel of a qualified New Jersey family law attorney who has experience dealing with LGBTQ clients seeking to grow their families through surrogacy, fostering or adoption. The attorney you select should be up-to-date on all the latest developments regarding this changing area of the law as it relates to your family.
Remember, all families are different and you need an attorney who can guide you but who can also think outside the box and avoid treating you and your partner as cookie-cutter clients. And, your attorney should have experience working with Division of Children and Families and your local court system. Knowledge of the law is helpful, but knowledge of the local system is invaluable.
Shop around. Interview several family law attorneys near you and select the one that makes you feel comfortable, at home and heard.
Don’t overlook other options
If surrogacy does not end up being the right answer for you as a family, do not give up. There are many ways for LGBTQ couples to become parents. Consider becoming a foster family where you can provide a home to a child that is in need and possibly in crisis. Fostering can become the first step to adoption, which is another terrific option for LGBTQ families to welcome a child. Adoption can come through the foster care system, a private state adoption agency, an out-of-state agency or even an international adoption. Finally, you may be able to adopt your partner’s biological child, if you have formed an emotional and parental bond with them. Again, talk to an attorney about all of your options to ensure that your needs are met and that you are properly following the laws here in New Jersey.
If you would like more information regarding surrogacy, custody or any other family law issue, please contact us to schedule a consultation with one of our qualified and experienced family law attorneys. Call today: (888) 888-0919.
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