By January 1, 2019 there will only be three states that have published statutes or case law that prohibit compensated surrogacy contracts – those states being Louisiana, Michigan and New York. With the State of Washington amending its Uniform Parentage Act to decriminalize compensated surrogacy to be effective January 1, 2019 and New Jersey just recently providing for enforceable gestational carrier agreements.
New Jersey state law has finally caught up to medical science. Signed into law on May 30, 2018, the New Jersey Gestational Carrier Agreement Act (GCAA) provides for enforceable gestational carrier agreements in the State of New Jersey. This is a dramatic change as, prior to this legislation, surrogacy agreements had been unenforceable under the In the Matter of Baby M case.
At its core, the New Jersey Gestational Carrier Agreement Act requires that a gestational carrier be at least 21 years of age; have previously given birth to a child; have completed both a medical evaluation and a psychological evaluation; and have retained independent counsel. Additionally, the intended parents are also required to complete a psychological evaluation and be represented by separate counsel.
Substantively, the GCAA requires the gestational carrier agreement to articulate that the carrier will undergo a pre-embryo transfer and attempt to carry and give birth to a child and she, and her spouse if applicable, will surrender custody of the child to the parents immediately upon the child’s birth. The agreement must also state that the intended parents will accept custody of the child upon birth and assume responsibility for the child immediately upon birth as well. The agreement must also state that the carrier has the right to medical care of her choice and that she must notify the intended parents of her choice of medical provider in writing.
Procedurally, the intended parents will become the legal parents of the child immediately upon birth, and the carrier will not have parental rights. There is no need for a stepparent adoption if there is a non-genetic parent and no need for a formal termination of parental rights. In order to clearly establish the parent-child relationship, the intended parents must file a Complaint for Order of Parentage in the Superior Court, Chancery Division, Family Part, after the gestational carrier becomes pregnant. This complaint must include an affidavit by the gestational carrier and her spouse or partner that they have entered into a gestational carrier agreement pursuant to the GCAA and agree to be bound by the agreement after consulting with separate legal counsel; affidavits of representation of the attorney for the intended parents and the attorney for the gestational carrier and her spouse; and a statement from the medical facility which performed the in vitro fertilization.
With the GCAA in place, New Jersey is officially the tenth state where by law surrogacy is permitted for all parents, pre-birth orders are granted, and both parents can be named on the birth certificate.