New Jersey surrogacy laws & gestational process guidelines

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 surrogate’s 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 surrogate’s willingness to undergo embryo transfer and surrender custody of the child after birth
• The surrogate’s 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.