Surrogacy Contracts Now Recognized by Law in New Jersey
The legislation garnered support from the New Jersey State Bar Association's Family Law Section.
May 31, 2018 at 02:27 PM
3 minute read
New Jersey Sen. Joesph Vitale (D-Woodbridge) Baby M Under such a contract, a woman agrees to carry the fertilized egg of another woman through pregnancy. The bill requires the surrogate mother to forfeit all maternity rights.The bill also requires that a surrogacy contract clearly state that the gestational carrier would agree 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 immediately on the birth of the child.Under the contract, the intended parent will have to agree to become the legal parent of the child immediately after the birth. The contract mandates that the child's birth certificate name the intended parent as the sole legal parent of the child.The measure requires that any agreement must allow for the gestational carrier to choose her own medical care for the pregnancy, labor, delivery and postpartum care.Because the agreement would not be considered an adoption, a surrender of custody or a termination of parental rights, it will not be in conflict with New Jersey's adoption laws, Vitale said.Also, the bill would allows for the intended parent to 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.The intended parents will be responsible for paying the gestational carrier's counsel fees, but the gestational carrier will be able to choose the attorney.Former Gov. Chris Christie, a Republican, vetoed the legislation in 2012 and 2015, when both majority-Democratic legislative chambers approved it. In his 2012 veto, Christie said not enough research had been done to study the possible ramifications. “While some will applaud the freedom to explore these new, and sometimes necessary, arranged births, others will note the profound change in the traditional beginnings of a family that this bill would enact,” Christie said in a veto statement at the time. In his 2015 veto message, he said the sponsors had done nothing to allay his concerns since the prior attempt.The legality of such contracts has been a historically contentious issue in New Jersey since well before the 2012 and 2015 bills.Surrogate pregnancy contracts made national headlines in 1988 when the state Supreme Court issued its watershed ruling in In re Baby M, which voided surrogacy-for-hire contracts.In 2012, the court, in a 3-3 split in In the Matter of the Parentage of a Child by T.J.S. and A.L.S., let stand a lower court ruling that parental rights do not vest in the wife of a man who fathered a child through an anonymous egg donor, which was carried by an unrelated surrogate.According to Vitale, New Jersey now joins 12 states—Arkansas, Delaware, Florida, Illinois, Nevada, New Hampshire, Tennessee, Texas, Utah, Virginia, Washington and Wisconsin—that have enacted measures legalizing gestational carrier contracts in some form, along with the District of Columbia.According to Hagan, gestational carrier contracts are "not as common as people would think" because the necessary medical costs to facilitate such an arrangement, including in vitro fertilization and hormone treatment, along with the legal costs, amounts to "thousands and thousands of dollars.""The pool of people who can afford this is not a huge pool," she added.
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