Dramatic Change to New Jersey’s Surrogacy Laws

 

30 years ago, the New Jersey Supreme Court decided the infamous Baby M case and determined that surrogacy contracts were void and unenforceable.  Baby M involved a traditional surrogacy – the surrogate was the genetic mother of the child.  This key fact was central to the court’s decision but does not reflect the reality of the vast majority of surrogacy arrangements done today.

Most states do not permit traditional surrogacy arrangements, which are often fraught with psychological and legal issues.  Those states that do permit them generally do so within the framework of adoption laws. However, as reproductive technologies developed, the option of gestational surrogacy quickly became the favored means of family building via surrogacy.  Most states have either passed laws or developed case law that permit gestational surrogacy.  These laws and cases make the requirements of surrogacy contracts clear and allow for certainty in the legal parentage determination process, benefitting all parties involved.  New Jersey continued to resist putting a statutory framework for surrogacy into place, with surrogacy laws being vetoed by Governor Christie in 2012 and 2015. This changed on May 30, 2018 when Governor Murphy signed a comprehensive surrogacy bill into law, effective immediately.

New Jersey’s new law makes surrogacy contracts enforceable so long as the statutory criteria are met.  Surrogates must be at least 21 years old, have had at least one prior pregnancy with delivery, have completed medical and psychological evaluations, and have independent legal representation for the negotiation of the surrogacy contract.  Intended parents must have completed psychological evaluations and have independent legal representation as well.  The law details various requirements of the surrogacy contract, including the surrogate’s right to medical care and that the intended parents agree to take custody of and responsibility for the child immediately after birth.  The law also sets out the procedure for obtaining a pre-birth order and establishing the intended parents as the child’s legal parents.

Pearl Surrogacy is very excited to be able to work with surrogates living in New Jersey and for intended parents to be confident in the process for establishing legal parentage!

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