GESTATIONAL SURROGACY LAW NEW JERSEY
Gestational surrogacy is expressly permitted pursuant to the New Jersey Gestational Carrier Agreement Act of 2018. Prior to the Act, compensated surrogacy arrangements were prohibited in the state and held unenforceable.
Traditional surrogacy is legal only if the surrogate is not compensated and there was no pre-birth surrogacy agreement, making it rare in New Jersey.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in New Jersey, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.
Below is a list of some of the most frequently asked questions about surrogacy in New Jersey.
Is Gestational Surrogacy Legal in New Jersey?
Yes. The 2018 amendments to New Jersey surrogacy laws made gestational surrogacy legal in New Jersey. These amendments lay out the specific requirements and steps for every gestational surrogacy in New Jersey.
Is Traditional Surrogacy Legal in New Jersey?
Yes. Traditional surrogacy is permitted as long as it is not compensated (i.e. altruistic surrogacy) and there was no pre-birth surrogacy agreement. Furthermore, traditional surrogacy contracts are unenforceable. To obtain and secure their legal parental rights, intended parents will be required to wait until after the child is born and may only pursue adoption, not a parentage order.
Is Compensated Surrogacy Legal in New Jersey?
Yes. Compensated surrogacy arrangements are now expressly permitted in the state but such compensation is subject to some limitations, including a surrogates ability to request/receive a base compensation. Rather, all payments made to a surrogate must be solely to compensate her for reasonable living expenses and costs which include:
- Attorney fees and other legal services
- Reasonable living expenses such as food, clothing, medical expenses, shelter, and counseling services.
Creating a New Jersey Surrogacy Contract
New Jersey surrogacy laws set out a list of requirements for all gestational surrogacy contracts created in this state to be enforceable by law. Intended parents and surrogates must be represented by separate attorneys throughout the execution of the contract.
These list of requirements include:
-
Surrogate
- Be at least 21 years of age
- Has given birth to at least one child
- Has completed a medical and psychological examination
- Has retained an independent attorney for the agreement drafting process
-
Intended Parent(s)
- Has completed a psychological examination
- Has retained an independent attorney for the agreement drafting process
The contract must also lay out the specific terms of the surrogacy, including:
- The surrogates willingness to undergo embryo transfer and surrender custody of the child after birth
- The surrogates right to medical care decisions after notifying the intended parents.
- The intended parents responsibility to accept custody of the child after birth is also expressly stated.
Once the contract is signed by both parties and executed, the medical process of surrogacy can begin.
Traditional Surrogacy is different. Since traditional surrogacy contracts in New Jersey are not enforced by law, they are dependent on the integrity of everyone involved.
Determining Legal Parentage in New Jersey
In most cases, pre-birth parentage orders are permitted regardless of the marital status or genetic connection of the intended parents.
Establishing parentage in traditional surrogacy is more complicated because, at birth, the surrogate is legally the mother of her child and must terminate her rights according to New Jersey adoption laws. The surrogate must wait at least 72 hours after birth before doing so.
Same-Sex Surrogacy in New Jersey
Q: Is Same-Sex Surrogacy Legal in New Jersey?
A: Yes. Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg donor or sperm donor to complete the IVF procedure.
Q: Are There any Additional Laws Impacting Same-Sex Parenting in New Jersey?
A: No. There are no additional laws impacting same-sex parents in this state.
FAQs
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in New Jersey?
A: Currently, only gestational surrogacy contracts are enforceable in New Jersey. Traditional surrogacy contracts are unenforceable.
Q: Are There Any Particular Laws for Parents Outside the United States Who Complete a Surrogacy in New Jersey?
A: No. There are no surrogacy laws in Alabama that specifically apply to international intended parents. It is important, however, that Intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
Q: When do Intended Parents Need to Complete an Adoption After Birth?
A: If the intended parents surrogacy is not enforceable (it does not meet state requirements), they will need to complete an adoption in gestational surrogacy cases. In traditional surrogacy cases, intended parents will always need to complete a post-birth adoption.
Q: Does New Jersey Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: Yes. Second-parent adoptions are permitted and are available to unmarried individuals who were unable to obtain a parentage order.
Stepparent adoptions are permitted and are available to married couples.
Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?
A: The use of a donor egg, sperm, or embryo does not affect the ability of the non-biological parent to obtain a pre-birth order as long as intended parents are completing a state-approved gestational surrogacy. New Jersey surrogacy laws state a gamete donor is not the legal parent and has no rights or duties to that child.
The use of donor sperm in a traditional surrogacy is more complicated. In this case, a stepparent or co-parent adoption may need to be completed. The rights of a donor will be terminated, in most cases, through a gamete bank, but anyone working with an identified donor may need to draft an additional donor contract.
REPRODUCTIVE LAW PRACTITIONERS
Nancy Hartzband, Esq.
Montvale, NJ
nancy@reproductivelawyer.com
(201) 505-0099
John Passante – Singer & Fedun
Belle Mead, NJ
info@singerfedun.com
(908) 359-7873
Bill Singer – Singer & Fedun
Belle Mead, NJ
info@singerfedun.com
(908) 359-7873
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