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STATE SURROGACY LAW:

New Jersey Surrogacy Laws

Overview

According to the New Jersey Gestational Carrier Agreement Act of 2018, gestational surrogacy is permitted. Prior to 2018, compensated gestational carrier agreements were unenforceable. [A.H.W. and P.W. v. G.H.B. (2000) and In re T.J.S. (2012)]

Compensation for gestational carriers in New Jersey does have some restrictions; carriers can’t request a base compensation but instead must associate all monies received with reasonable living expenses and costs. 

Baby M, the very first public court case in the United States dealing with surrogacy, was decided in New Jersey over 25 years ago and has yet to be superseded. Traditional surrogacy is permitted in New Jersey as long as it’s altruistic and there isn’t a surrogacy agreement pre-birth; any traditional surrogacy agreements are unenforceable. Intended Parent(s) won’t be able to establish parentage until after their child is born and may only do so with an adoption. 

Types of Surrogacy Available in New Jersey

Can a parentage order be obtained for the following?

Although traditional surrogacy is not prohibited by law, there are additional legal complexities to traditional surrogacy: there can be no pre-birth agreement; no compensation is allowed, and Intended Parent(s) must establish parentage with an adoption. Many attorneys and agencies advise against it due to the increased legal risks involved because a surrogate legally can’t be forced to give up her parental rights.

Gestational surrogacy

YES

Commercial surrogacy

YES

Traditional surrogacy

NO

Altruistic surrogacy

YES

Parentage

Who can be declared as the parent(s) of a child from a surrogate via a court parentage order?

Married Heterosexual Couple Married Same-Sex Couple Unmarried Heterosexual Couple Unmarried Same-Sex Couple Single
Two Genetic Connections 💚 💚
One Genetic Connection 💚 💚 💚 💚 💚
No Genetic Connections 💚 💚 💚 💚 💚
Married Heterosexual Couple Married Same-Sex Couple Unmarried Heterosexual Couple Unmarried Same-Sex Couple Single
Two Genetic Connections 💚 💚
One Genetic Connection 💚 💚 💚 💚 💚
No Genetic Connections 💚 💚 💚 💚 💚
Show Court Parentage Order Collapse

💚 – Both Intended Parent(s) can be named on the parentage order

💛 – Only a genetic Intended Parent can be named on the parentage order. A non-genetic Intended Parent will need to establish parentage via a second or stepparent adoption following birth.

Intended Parents who are married but separated from their spouse may face restrictions in as courts may require that legal action regarding their marital status be resolved prior to granting a parentage order. It’s strongly recommended that Intended Parents in this situation work closely with legal counsel. 

How are Intended Parent(s) Listed on the Birth Certificate?

Intended Parent(s) may be listed as Father-Mother, Parent-Parent, or Father or Mother

Rights of Egg or Sperm Donor(s)

According to the New Jersey Gestational Carrier Agreement Act, donors of sperm or egg for assisted reproduction procedures have no parental rights over the donated gametes or a resulting child. The act states that, “Unless a person who donates gametes for use in assisted reproduction enters into a written contract to the contrary, the gamete donor is treated in law as if the gamete donor were not the legal parent of a child thereby conceived and shall have no rights or duties stemming from the conception of the child.”

Surrogacy Steps in New Jersey

Surrogacy Process in New Jersey

Select your agency if applicable

Match with a gestational carrier

Complete medical and psychological evaluations

Select attorneys for the intended parents and gestational carrier and complete the gestational carrier agreement

Begin IVF cycle with surrogate

Pre-birth order

New Jersey allows pre-birth orders to be filed. Proceedings usually begin in the second trimester.

Delivery and birth certificate finalization

Birth Certificate Timeline

Birth certificate

Generally issued with 7-10 days after birth. A parent may be able to pick up copies from the issuing agency (either in Trenton or locally, as some towns with large hospitals issue them directly).

Legal and medical steps involved in the surrogacy process may differ from case to case. Please speak with your agency and attorneys about how the process might look for you.

Court Processes

Surrogacy Contracts

Gestational surrogacy contracts in New Jersey are recognized and enforced by the state as long as they are pursuant to the New Jersey Gestational Carrier Agreement Act. Traditional surrogacy contracts are unenforceable.

Independent Counsel

Independent counsel is required for all parties involved in a surrogacy agreement.

Requirements for Surrogates and Intended Parent(s)

Surrogates

  • Must be at least 21 years old 
  • Must have given birth to at least one child 
  • Must complete medical and psychological evaluations

Intended Parent(s)

  • Must complete medical and psychological evaluations

Agencies and fertility clinics may have additional requirements based on the American Society for Reproductive Medicine, the American Medical Association, and the American Academy of Adoption and Assisted Reproduction Attorneys

Birth Orders

Do courts issue pre-birth orders?

YES

Do courts issue post-birth orders?

YES

Are hearings required to obtain either pre- or post-birth orders?

VARIES

If the parentage order is contested, a court hearing may be required. Otherwise, a hearing is not required by law, but judges may require one depending on the specifics of the case. Attendance is at the judge’s discretion as well. 

Bases of Venue

What are the bases of venue?

County where child is anticipated to be born; county where the Gestational Carrier lives; county where the Intended Parent(s) live

Do rulings vary by venue?

NO

Can you file a motion to waive venue?

NO

International Issues

Because of the clear statutory guidelines and courts friendly to families of all kinds, International Intended Parent(s) may find doing surrogacy in New Jersey an easy, straightforward process.  International Intended Parent(s) will have additional legal steps to complete before their return home regarding their country’s immigration and citizen laws that impact the child. It’s imperative the international Intended Parent(s) speak with an experienced attorney in their home country about their situation. The law of more than one country will need to be considered if the Intended Parent(s) are citizens or residents of more than one country.  

Residency Requirements

Does the state impose residency requirements on either the surrogate or Intended Parent(s):

NO

Birth Certificates

Can an international same-sex male couple receive an initial birth certificate naming the genetic Intended Father and Gestational Carrier?

YES, although processes may vary

Can an international same-sex male couple obtain an initial birth certificate naming only the genetic Intended Father father?

YES

Can they receive a subsequent birth certificate naming only the Intended Parent(s) with no mention of the Gestational Carrier?

UNKNOWN

Passport Timeline

6-8 weeks after submitting birth certificate.

Passports can be expedited for a 2-3 week delivery with an extra fee. Intended Parent(s) can also visit a regional passport agency to receive one within 1-2 business days.

Passports are regulated at the federal level in the United States. To learn more about the process of receiving a US passport, visit Travel.State.gov.

Consulting Attorneys

Kathleen DiPaola
Copps Dipaola Silverman, PPLC
1 Marcus Blvd., Suite 200 
Albany, New York 12205 
(518) 436-4170
kdipaola@theCDSLawFirm.com
thecdslawfirm.com

Lauren Murray
Law Offices of Lauren Murray
1 International Blvd, Suite 400
Mahwah, NJ 07495
(845) 304-2685
lauren@laurenmurraylaw.com
www.laurenmurraylaw.com

Legal Disclaimer

The content contained in this website is provided for informational purposes only. Content contained herein may or may not reflect the most current legal information on the subject; accordingly, this website is not promised to be correct or complete at any given time. Outcomes referenced should not be interpreted as an indication of future outcomes. Love & Kindness Surrogacy explicitly disclaims all liability for actions taken or not taken based on the contents of this website.

This website does not constitute a replacement for legal advice or counsel. Always consult an attorney before beginning the surrogacy process.

Last updated October 2019

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