On May 30, 2018, New Jersey Governor Phil Murphy signed the New Jersey Gestational Carrier Act into law, bringing a seismic shift in the legal landscape for assisted reproduction law in the state. Tiffany Palmer, an attorney experienced in surrogacy cases and licensed in New Jersey and Pennsylvania answers questions about the new law.
Q. What makes this new law a major change in New Jersey?
A. In 1988, the Baby M case was decided by the New Jersey Supreme Court. Baby M was a case involving traditional surrogacy, and that case struck down the surrogacy contract as illegal and unenforceable. So since 1988, New Jersey couples seeking to use gestational surrogacy as a pathway to parenthood have had to go to other states to ensure their rights as parents are legally protected. It also meant that couples from other states could not come to New Jersey to find a gestational carrier and have the protection of a legally enforceable contract. This new law changes that.
Q. Does this mean women in New Jersey may now become gestational surrogates and can be legally paid to do so?
A. Yes, as long as they meet the necessary requirements under the law. They would be entitled to have the intended parents pay for their own separate attorney and their pregnancy and postpartum medical and living expenses.
Q. What are the requirements to be a gestational surrogate in New Jersey?
A. Women seeking to be gestational surrogates must have been pregnant before, so they would know what to expect emotionally and medically. They also must be at least 21 years old and have undergone medical and psychological evaluations.
Q. How much money typically would a gestational carrier receive in such an arrangement?
A. It varies significantly, but typically, gestational carriers receive $20,000 to $45,000 during the pregnancy.
Q. How does the new law protect gestational carriers?
A. Any agreements for her living expenses set forth in a contract are now legally enforceable. Additionally, since the intended parents are legally the parents of the child, the gestational carrier is protected from having the legal responsibilities of parenthood to the child she is carrying (such as financial support of the child) or from the intended parents abandoning the child.
Q. How does the new law protect intended parents?
A. The gestational carrier would sign an agreement stating she would undergo pre-embryo transfer, attempt to carry and give birth to the child, but that she would not legally be the mother and the intended parents would have physical custody immediately upon birth. Additionally, the law enables the names of the intended parents, not the gestational carrier’s name, to appear on the birth certificate.
Q. How does New Jersey law now compare to other states?
A. This brings New Jersey into the forefront across the country as one of ten states where gestational surrogacy is explicitly permitted by statute. Many other states also permit gestational surrogacy by administrative law or case law, including the bordering state of Pennsylvania. Only three states now (including the bordering state of New York) have statutes where surrogacy is illegal or criminalized.
To learn more about gestational surrogacy laws in New Jersey or Pennsylvania or to retain an attorney experienced in drafting these contracts, please contact Jerner & Palmer.