Are you considering surrogacy as a way to start or expand your family?
In New Jersey, a recently passed law reverses the state’s decades-old ban on gestational carrier agreements, put in place in the aftermath of the infamous Baby M case. The new law outlines rules both intended parents and surrogates must follow for the contract to be considered valid.
Provisions of the new law includes:
- The intended gestational carrier (surrogate) 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.
- Intended parents must also have undergone a psychological exam prior to establishing the contract.
- 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.
- The law is also clear that it ONLY applies to surrogates who have no genetic link to the fetus because the egg belongs to another woman.
[A more complete discussion of the new law can be found in our prior blog: What New Jersey’s New Surrogacy Law Means For Your Plans to Have a Baby Via Gestational Carrier]
How the new surrogacy law works: 4 case studies
Are your surrogacy plans covered under this new law? Here are some common situations in which a surrogate may be sought and how the new gestational carrier law apply and a general overview of the surrogacy process.
Case 1: John and Sarah’s find an answer to their fertility struggles
John and Sarah have a frozen embryo created by from Sarah’s egg and John’s sperm. Due to a history of miscarriage and Sarah’s age (mid-40s), a decision has been made to hire a surrogate to be implanted with the embryo. They find and sign a contact with a surrogate, a woman named Becky who is in her mid-20s. When the baby is born, Sarah and John expect to be named to the birth certificate because they are both biologically related to the child.
Are their contract and plans for their child’s birth certificate covered by the new law?
Yes, provided that…
- The surrogate meets the eligibility requirements for a gestational carrier as listed above. (i.e., age, previous childbirth, separate legal counsel, etc.)
- Sarah and John as the intended parents must both satisfy the requirements of intended parents listed above. (i.e., they both undergo psychological evaluation and have retained and consulted with an attorney.)
Here is something that needs to happen. Once they have their legal contract in place and their surrogate becomes pregnant, Sarah and John must file with the Courts for an Order of Parentage. This is necessary due to an existing New Jersey law which provided that a surrogate who carries and gives birth to a child has parental rights even when she has no genetic relationship to the child. Having the Order of Parentage in place essentially nullifies this law.
By following the rules for establishing the contract and filing for parentage, John and Sarah will be named to their child’s birth certificate immediately upon birth and can start their lives together as a family.
Case study 2: Bill and Tom want to start a family
Bill and Tom have been married since marriage equality took hold in New Jersey in 2015. They are ready to start a family and think surrogacy is their best option. Bill and Tom connected with a surrogate and are ready to move forward. The carrier will be implanted with an embryo created from a donor egg and Bill’s sperm.
As they start the process of putting together the gestational carrier contract, Bill and Tom are unsure about who will be named on the child’s birth certificate. Can both Bill and Tom be named to the birth certificate, even if Tom is not biologically related to the child? Will Tom be required to adopt?
Bill and Tom’s situation shows why careful adherence to the the new law is so important. If BOTH spouses enter into the agreement with the surrogate and have met the statutory requirements of counseling and legal representation, and the couple files for an Order of Parentage after the surrogate becomes pregnant, then both Bill and Tom can be named to the birth certificate.
This would apply to to all scenarios in which one intended parent is biologically related to the child and the other intended parent is not, whether the couple is gay or straight.
Cast study 3: Mandy and Paul take a risk with “alternative insemination”
Mandy and Paul are desperate to have a baby and decided to pursue surrogacy due to Mandy’s infertility. As they began the process, they were shocked by the costs the surrogacy agency quoted to them and decided to take matters into their own hands.
To cut costs, Mandy and Paul found a “friend of a friend of a friend” willing to carry a baby for them for a flat rate. The surrogate agreed to “alternative insemination” where Paul’s sperm would be used to impregnate the surrogate, using her own egg. (No in vitro transfer.) Paul and Mandy and the surrogate created a contract that stated the surrogate gave up all rights to the child and that Mandy would be named to the birth certificate.
Does the new law cover this kind of arrangement?
The answer is clear in this situation: No. Under the new law a “gestational carrier” is specifically defined as a woman 21 years of age or older who agrees to become pregnant for an intended parent by assisted reproductive technology without the use of her own egg.
Here’s something that’s important for any couple wishing to pursue surrogacy to understand: New Jersey’s “Baby M” law — which pertained to this exact situation of a surrogate’s own egg being used — has not been thrown out and is still good law. This means that the woman being called a “surrogate” who is using her own egg can absolutely assert that she is actually the mother and has parental rights despite what any contract says — and the courts are likely to agree with her.
Case Study 4: Ruth and Tamra will use donor egg and sperm
Ruth and Tamra are a same-sex lesbian couple who want to start a family. They have settled on a surrogate for having a baby and will use donor sperm, and for health reasons, they will also use a donor egg.
Ruth and Tamra are concerned that because neither will be biologically related to their child, the sperm and egg donors will have some kind of legal upper hand as people biologically/genetically related to the baby. They also worry that the surrogate, because she gestated and birthed their baby, can also come back with a parental claim. Should they be concerned?
When embryo creation and transfer are carried out under medical supervision, neither the egg donor nor the sperm donor will have any parental rights, unless they have entered into a written contract to the contrary. Both Ruth and Tamra will be named on the birth certificate, provided that:
- The couple is using a surrogate who meets the eligibility requirements as stated above,
- Donor sperm and donor egg and embryo creation are supervised by appropriate medical personnel,
- The surrogate is not also the egg donor,
- Both spouses qualify as intended parents according to the standards above,
- Both spouses have entered into an agreement with the surrogate that meets the statutory requirements, and
- The couple files a complaint for an order of parentage after the surrogate becomes pregnant.
If these steps are followed, Ruth and Tamra can let go of their legal worries and enjoy the journey to becoming parents!
Surrogacy: Your next steps
Considering surrogacy and want to understand your legal rights and fulfill your legal requirements for representation? Come in a for a an Initial consultation. Our highly qualified family law attorneys can provide you with the legal guidance you need to create a strong agreement, whether you are the intended parents or gestational carrier.
Call us at 888-888-0919 or please click the button below.