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court case in the United States dealing with surrogacy, was decided in New Jersey over 25 years ago and has yet to be superseded.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.
Parentage
Who can be declared as the parent(s) of a child from a surrogate via a court parentage order?
– 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
Birth Certificate Timeline
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)
- Must be at least 21 years old
- Must have given birth to at least one child
- Must complete medical and psychological evaluations
- 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
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
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
Birth Certificates
Passport Timeline
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
