Protecting your Rights in the Surrogacy Process in New Jersey

The Surrogacy Process in New Jersey Typically Involves Several Key Steps, Which May Vary Slightly Depending on the Specific Circumstances of Each Case

Many couples desperately want to have a family but are unable due to fertility issues.  Not very long ago, a woman’s inability to become pregnant or sustain a pregnancy meant the couple would have to adopt children.  Although adoption is a very rewarding and joyful event, many prospective parents prefer to have a child with whom they are biologically linked. Surrogacy allows the parents to have a child that is directly related to them and their family traits.  Creating a legal agreement for surrogacy is a complex process that could have heartbreaking results if not done according to New Jersey’s laws. With a vast understanding of surrogacy laws and the various stages of the surrogacy process, our lawyers at Montanari Law Group can explain and protect your legal rights if you choose to have a child through a surrogate in New Jersey.

Different Types of Surrogacy in New Jersey

In New Jersey, there are two main types of surrogacy: gestational and traditional. Gestational surrogacy involves the transfer of a fertilized embryo, created using the intended parents’ or donors’ sperm and egg, to the surrogate mother’s uterus. The surrogate mother carries and delivers the baby but has no biological connection to it. In traditional surrogacy, the surrogate mother is impregnated using artificial insemination with the intended father’s sperm. The surrogate mother is, therefore, biologically related to the baby she carries.

Governing Laws on Surrogacy in New Jersey

N.J.S.A. 9:17-65 refers to a section of the New Jersey Statutes Annotated, the official compilation of the permanent laws of the state of New Jersey. This particular section pertains to the Surrogacy Parentage Act of 2019, which governs surrogacy agreements in New Jersey. The law, N.J.S.A. 9:17-65, establishes the legal framework for gestational surrogacy agreements, including the requirements for entering into a valid agreement, the rights and obligations of the parties involved, and the process for establishing parentage. The law recognizes gestational surrogacy agreements as enforceable and provides for the automatic establishment of parentage for the intended parents upon the birth of a child resulting from the agreement. It’s important to note that N.J.S.A. 9:17-65 only applies to gestational surrogacy agreements and not to traditional surrogacy arrangements.

According to this law, a gestational carrier agreement must be created by the gestational carrier, her partner or spouse (if any), and the intended parents.  If the intended parent is single, they will be the child’s legal parent. After the psychological screenings of the intended parents and the gestational carrier and medical screening of the surrogate, before the pre-embryo implantation, the contract must be completed and signed.

Additional Protections Covered by the Gestational Carrier Act

The New Jersey Gestational Carrier Agreement Act, also known as NJGCA, is a state law in New Jersey that governs the use of gestational carriers in assisted reproductive technology. This law provides a framework for legally establishing the rights and responsibilities of intended parents and gestational carriers in the creation and birth of a child using gestational carrier technology.

This law clarifies the legal status of intended parents and gestational carriers. The NJGCA clearly defines the roles and responsibilities of intended parents and gestational carriers in a gestational carrier agreement, including who is considered the legal parent of a child born through gestational carrier technology.

It also improves access to gestational carrier services. The NJGCA removes barriers to accessing them in New Jersey by providing a clear and comprehensive legal framework for gestational carrier agreements. Protection of the health and well-being of gestational carriers is another focus, as the NJGCA includes provisions to protect the health and well-being of gestational carriers, including provisions related to medical care and insurance coverage.

It also provides families with the legal certainty they need to move forward with gestational carrier agreements with confidence, knowing that their rights and obligations are clearly established under New Jersey law.

Lessons Learned From the Baby M Case

The Baby M case was a high-profile court case in the United States that dealt with the legality of surrogacy arrangements and the parental rights of birth mothers. The case involved Mary Beth Whitehead, who was hired as a surrogate mother to carry and give birth to a child for a couple, William and Elizabeth Stern. After giving birth, Whitehead changed her mind and refused to give up custody of the child, leading to a legal battle over the custody and parental rights of the child.

The Baby M case was one of the first high-profile cases to deal with the legal and ethical issues surrounding surrogacy and helped to shape public opinion and policy regarding assisted reproductive technology and gestational carriers. The case also raised important questions about the nature of parenthood and the rights and responsibilities of birth mothers, intended parents, and gestational carriers in surrogacy arrangements.

The outcome of the Baby M case was that the New Jersey Supreme Court ruled that the surrogacy agreement between Whitehead and the Sterns was unenforceable and that Whitehead was the child’s legal mother. However, the court also ruled that William Stern was the legal father and that he should have custody of the child, subject to visitation rights for Whitehead. The case was widely debated and has impacted the legal and ethical considerations surrounding surrogacy and assisted reproductive technology.

An Outline of the NJ Surrogacy Process

It starts with the consultation by the intended parents and gestational carriers who typically consult with a surrogacy professional to discuss the surrogacy process, legal considerations, and medical requirements. Intended parents and gestational carriers are matched based on their needs and preferences. A legal agreement is drawn up that outlines the rights and responsibilities of both parties and is reviewed and approved by legal counsel. Both intended parents and gestational carriers undergo medical screening to ensure they are healthy enough to participate in surrogacy. Fertility treatments are used to help intended parents conceive a child, which may involve in vitro fertilization (IVF) or other assisted reproductive technologies. When the pregnancy has reached the second trimester, the intended parents file a PBO (pre-birth order) with the courts naming them as the only legal parents of the child. The gestational carrier carries the child to term and gives birth. Finally, legal steps are taken to establish the intended parents as the legal parents of the child and to transfer custody of the child to the intended parents.

What Must be Included in a Surrogacy Contract in NJ?

The contents of the contract must include that the surrogate will undergo a pre-embryo transfer, complete the pregnancy, and give birth to the child.  She also must give up custody of the child to the intended parents immediately after the birth. The surrogate must receive medical care for any and all health concerns from inception to postpartum recovery. It must also include the parameters of the intended parents’ financial responsibilities for the gestational carrier’s care and well-being.

List of Conditions for Becoming a Gestational Surrogate

Undertaking the role of a surrogate carrier demands considerable effort during the pre-selection process, which involves satisfying stringent criteria. Prospective candidates must demonstrate proper age ranges, typically falling between 21-35, while providing substantial evidence attesting to their physical fitness as well as positive mental health profiles. At least one successful pregnancy outcome without underlying medical complications constitutes another factor when determining suitability to serve in this capacity, along with detailed, informative insights regarding past healthcare records such as surgeries or previous births. Ensuring good health throughout pregnancy remains paramount through efficient regime patterns entailing appropriate exercise alongside weight-conscious nutritional practices while forging strong connections within healthy support networks. Additional prerequisites include psychiatric evaluations and fulfilling medical examinations supplemented by exhaustive background checks. There is nothing easy about becoming a surrogate, but it is rewarding.

Parents’ Rights in Surrogacy in NJ: How Are They Safeguarded?

The aforementioned agreement has specific terms laying out the roles of each person involved.  The gestational carrier agrees to undergo pre-embryo transfer and give up custody of the child to the intended parent immediately upon the birth of the child.  The agreement must include a provision that the gestational carrier’s spouse or partner agrees to surrender custody of the child immediately upon the child’s birth.  Regarding the intended parent, the agreement is required to include express terms that the intended parent agrees to accept custody of the child immediately upon the birth of the child and assumes sole responsibility for the child’s support.  An agreement including these terms would be presumed enforceable. A court order is typically required to establish the intended parents as the child’s legal parents. This is typically done through a pre-birth order, which is obtained before the birth of the child, or a post-birth order, which is obtained after the birth.

Count on Our Lawyers to Draft an Enforceable Surrogacy Agreement in Passaic County

The Montanari Law Group knows how much you want to have a family or to help one by being a surrogate. An attorney at our law firm can assist you in a surrogacy agreement by providing legal advice and representation throughout the surrogacy process. We can clearly explain the laws and regulations related to surrogacy, draft and review the surrogacy agreement to ensure it is legally binding and meet your needs, negotiate any disputes that may arise during the surrogacy process, and represent you in any court proceedings if necessary. Having one of our lawyers involved in a surrogacy agreement can provide peace of mind and ensure that you are protected throughout the process.

Our family law attorneys are prepared to make that dream a reality for you in Fort Lee, Paterson, Wayne, Hackensack, South Orange, Newark, Woodland Park, Totowa, Jersey City, Hackensack, and towns throughout Passaic County and Northern New Jersey.  We will be your advocates, tending to your unique legal needs, negotiating and preparing your contracts, and making you an integral part of the process.

Call us today at (973) 233-4396 for more information about surrogacy and how we can assist with drafting an enforceable surrogacy contract that preserves your rights, or contact us through our online form.