For men and women who are looking to start or expand their families in New Jersey but have struggled to do so through traditional means, there is now a legally binding alternative: gestational carrier agreements (commonly known as surrogacy agreements).
Under those agreements, a woman agrees to carry the fertilized egg of another woman through pregnancy.
Gestational carrier agreements have not been expressly permitted in New Jersey since 1988, when the New Jersey Supreme Court issued its watershed ruling in the Baby M case, voiding surrogacy-for-hire contracts.
Under the New Jersey Gestational Carrier Agreement Act, which was signed into law by New Jersey Governor Phil Murphy on May 30, 2018, there must be a written agreement signed by both the intended parent(s) and the gestational carrier.
The agreement must provide (among other things) that:
- The surrogate mother forfeits all maternity rights.
- The surrogate mother agrees to undergo a pre-embryo transfer, attempt to carry and give birth to the child, and surrender custody of the child to the intended parent(s) immediately on the birth of the child.
- The intended parent(s) agree to become the legal parent(s) of the child immediately after the birth.
- The child’s birth certificate will name the intended parent(s) as the sole legal parent(s) of the child.
- The gestational carrier is permitted to choose her own medical care for the pregnancy, labor, delivery and postpartum care.
- The intended parents will reimburse the gestational carrier’s reasonable expenses in connection with carrying the child, including reimbursement for medical, hospital, counseling and living expenses during the pregnancy and postpartum recovery, unless the gestational carrier expressly waives that right in the agreement.
The New Jersey Gestational Carrier Agreement Act contains very specific and detailed requirements which must be strictly followed, in order to ensure that the agreement is valid. After the gestational carrier becomes pregnant, a complaint must be properly prepared and filed in the Superior Court of New Jersey, Chancery Division, Family Part, which will enter an order of parentage if all requirements have been met.
Because both the intended parent(s) and the gestational carrier must be represented by separate attorneys, you need knowledgeable legal counsel to guide you through the process.
For over 20 years, David Salvaggio has devoted his entire practice to New Jersey Family Law matters. For a confidential consultation with Mr. Salvaggio, please call him at 973-455-1220.