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Senator Vitale

Enactment of ‘New Jersey Gestational Carrier Agreement Act’ Provides Guidelines for Contracts between Carriers and Intended Parents

TRENTON – Senate Health, Human Services and Senior Citizen Committee Chair Joseph F. Vitale applauded Governor Phil Murphy’s signature today on legislation that permits gestational carrier agreements and determines specific guidelines that the gestational carrier and the intended parents must follow when writing up gestational carrier agreements.

“For men and women who are looking to start or expand their families but have struggled to do so through traditional means, gestational carrier agreements offer an alternative path to having children,” said Senator Vitale (D-Middlesex). “Gestational carrier agreements are imperative to protect the interests of all parties involved, including the carrier, the intended parents, and the child.  I’m thrilled that this law now provides the legal framework for the agreements and smooths the process for hopeful families.”

Under the “New Jersey Gestational Carrier Act,” the gestational carrier must be at least 21 years old, have already given birth to at least one child and have completed both medical and psychological evaluations. The intended parents are required to have completed a psychological evaluation to determine their suitability to enter an agreement and to have retained an attorney to advise them about the terms and potential legal consequences of entering into an agreement.

The new law requires that the agreement clearly states that the gestational carrier would agree to undergo pre-embryo transfer, to attempt to carry and give birth to the child, and to surrender custody of the child to the intended parent immediately upon the birth of the child. The agreement will allow for the gestational carrier to choose her own medical care for the pregnancy, labor, delivery and postpartum care. The agreement will not be considered an adoption, a surrender of custody, or a termination of parental rights and therefore would not be in conflict with New Jersey’s adoption laws.

Additionally, the agreement will state that the intended parent agrees to become the legal parent of the child immediately upon his or her birth. The child’s birth certificate will name the intended parent as the sole legal parent of the child.

The law allows for the intended parent to reimburse the gestational carrier’s reasonable expenses in connection with carrying the child. This would include reimbursement for medical, hospital, counseling and attorney fees and living expenses during the pregnancy and post-partum recovery.  This portion of the new law is similar to guidelines in New Jersey’s existing adoption statute.

“Some couples spend years trying IVF and other fertility treatments, and it takes its toll physically and emotionally,” said Senator Vitale. “This is not a controversial issue; both liberal and conservative states already have similar laws.”

Arkansas, Delaware, Florida, Illinois, Nevada, New Hampshire, Tennessee, Texas, Utah, Virginia, Washington State and Wisconsin’s laws allow for gestational surrogacy in some fashion. The District of Columbia legalized compensated gestational carrier agreements in April 2017.