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‘New Jersey Gestational Carrier Agreement Act’ Would Be National Model, Provide Guidelines for Contracts Between Carriers and Intended Parents

TRENTON – Legislation sponsored by Senate Health, Human Services and Senior Citizens Committee Chairman Joseph F. Vitale and Senate Majority Leader Loretta Weinberg that would permit gestational carrier agreements – where a woman agrees to carry and give birth to a child using another woman’s egg so that the child is not genetically-related to the carrier – was approved today by the full Senate.  Currently, New Jersey law regarding surrogacy is based solely on case law rather than statute.

“For men and women who are looking to start or to grow their families, but cannot through traditional means, surrogacy can offer an alternative path to children they have always dreamed of,” said Senator Vitale, D-Middlesex. “As the option of surrogacy continues to become more popular, ensuring that all parties involved are protected is imperative.  That is what a gestational carrier agreement can provide to both the carrier as well as the intended parents, a legal contract that ensures the best interest of all parties involved, including the child.”

The “New Jersey Gestational Carrier Act,” S-866, would be a national model for gestational agreements in the U.S. The bill would determine specific guidelines that the gestational carrier and the intended parents must follow when writing up gestational carrier agreements.

Under the legislation, the gestational carrier would be required to 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 parent would be required to have completed a psychological evaluation to determine their suitability to enter an agreement and to have retained an attorney to advise the intended parent about the terms and potential legal consequences of entering into an agreement.

It would be required 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 would allow for the gestational carrier to choose her own medical care for the pregnancy, labor, delivery and postpartum care. The agreement would not be considered an adoption, a surrender of custody, or a termination of parental rights; therefore it would not be in conflict with New Jersey’s adoption laws.

Additionally, the agreement would 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 would name the intended parent as the sole legal parent of the child.

The bill would allow 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 bill is similar to guidelines in New Jersey’s existing adoption statute.

“Many men and women struggling to get pregnant spend years dealing with anguishing infertility issues and painful fertility treatments prior to finding hope for having a child through gestational surrogacy,” said Senator Weinberg, D-Bergen. “Gestational surrogacy agreements are being made in the state, yet there is no legal framework for their implementation. With this thoughtful legislation, we can ensure that each of these families and their gestational surrogates has a clear set of set standards to appropriately enter into these arrangements, prior to the child’s conception, eliminating any post-birth confusion or legal proceedings.”

The state has seen a few cases in recent history that would have been greatly affected had this legislation been in place.  One such incident was where an infertile intended mother and her husband – referred to only as T.J.S. and A.L.S. in court papers – used a gestational carrier and an egg donor to have a son. Prior to the baby’s birth, a judge granted a pre-birth order to have the intended mother’s name listed on the birth certificate after a three-day waiting period. The state Bureau of Vital Statistics argued that since the egg did not belong to the intended mother and therefore the child had none of her DNA, she could not claim maternity and blocked the issuance of the birth certificate with the intended mother’s name. They contended that instead, she would have to apply for a step-parent adoption which can take months for approval and requires extensive background checks. Based on current law, the court sided with the Bureau of Vital Statistics.

Arkansas, Delaware, Florida, Illinois, New Hampshire, Nevada, Tennessee, Texas, Utah, Virginia, WashingtonState and Wisconsin’s laws allow for gestational surrogacy in some fashion.

The bill was approved by the Senate with a vote of 21-13.  It now heads to the General Assembly for further consideration.