Gestational Surrogacy in New Jersey: Key Facts and Legal Insights

New Jersey offers a supportive environment for building families through gestational surrogacy, especially since the passage of the New Jersey Gestational Carrier Act in May 2018. This groundbreaking legislation has been instrumental in safeguarding the rights of surrogates, same-sex couples, and couples struggling with infertility. At our law center, we specialize in guiding clients through the surrogacy process in New Jersey, ensuring all legal requirements are met with precision.

Legal Framework and Historical Context

The legal landscape of surrogacy in New Jersey has evolved significantly. The New Jersey Gestational Carrier Act, now part of state law as N.J.S.A 9:17-65 et seq., has established clear legal guidelines for gestational surrogacy.

Historically, surrogacy faced legal challenges in New Jersey, highlighted by the famous Baby M case in 1989. This case, involving a traditional surrogate who decided to keep the child post-birth, led the New Jersey Supreme Court to declare such surrogacy contracts against public policy. The aftermath of this ruling resulted in a nearly three-decade-long ban on surrogacy in New Jersey.

The Baby M case ignited nationwide discussions on surrogacy ethics, leading to a surge in surrogacy-related legislation. However, initial laws often failed to differentiate between traditional surrogacy (using the surrogate’s egg) and gestational surrogacy (using the intended mother’s or a donor’s egg). As understanding and acceptance of gestational surrogacy grew, efforts to reform New Jersey’s surrogacy laws gained momentum, culminating in the 2018 Act.

Eligibility and Requirements for Surrogacy in New Jersey

In New Jersey, surrogates must meet specific criteria: they should be at least 21 years old and have previously given birth. Our agency conducts thorough pre-screening to ensure surrogates satisfy these and other essential requirements, including medical and psychological evaluations.

Surrogacy Contracts and Legal Representation

In New Jersey, it is mandatory for intended parents and surrogates to have independent legal representation. The intended parents are responsible for the surrogate’s legal and reasonable medical expenses associated with the surrogacy. The law also empowers surrogates to select their medical providers throughout the pregnancy and postpartum period. These stipulations are integral to the surrogacy contract, which becomes binding once signed, allowing for the scheduling of the embryo transfer.

Securing Legal Parentage in New Jersey

To establish legal parentage, intended parents must file for a pre-birth order (PBO) with the Superior Court. This process, typically initiated in the pregnancy's second trimester, involves submitting affidavits from both parties' attorneys and a statement from the medical facility. Upon meeting all legal criteria, the court issues a PBO directing the vital statistics office to list the intended parents on the birth certificate. Depending on the jurisdiction, this may require a court proceeding or be processed based on the submitted affidavits.

Adoption Post-Surrogacy: Is It Necessary?

In New Jersey, intended parents engaging with a gestational carrier generally do not need to pursue an adoption process. A properly executed PBO is usually sufficient for the intended parents' names to be automatically included on the birth certificate.