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TRENTON – Legislation sponsored by Senator Joseph F. Vitale, Senate Majority Leader Loretta Weinberg and Senator Barbara Buono 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 laws regarding gestational carrier agreements are based solely on case law rather than statute.
“Providing a family that may not be able to get pregnant with a child is the ultimate gift,” said Senator Vitale, D-Middlesex. “And with advancements in reproductive technology, such as in vitro fertilization, a woman can serve as a gestational carrier without having to be biologically related to the child. Yet here in New Jersey we have not recognized these advancements. As a result, contested cases end up in court and the parentage of a child is often not established for years. The status quo is not in the best interest of the children. It is time that we update the law, so that we can provide the necessary support and protection for these families before we conceive these children – not after.”
The “New Jersey Gestational Carrier Act,” S-1599 determines specific guidelines that the gestational carrier and the intended parents must follow when writing up gestational carrier agreements.
A 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. Additionally the gestational carrier would be required to retain an attorney independent of the intended parents. If the gestational carrier is married, in a civil union or a domestic partnership, her spouse or partner would also be required to enter into the agreement.
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. If the intended parent is married, in a civil union or a domestic partnership, both spouses or partners would be required to enter into the agreement as intended parents.
The agreement must clearly state that the gestational carrier agrees 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 must 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 includes 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.
“As a mother and a grandmother, I understand the importance of family. For those men and women who can not have children naturally, a gestational carrier is the answer to an unfulfilled dream,” said Senator Weinberg, D-Bergen. “As the rates of gestational carrier agreements continue to skyrocket, we can not sit idly by and allow New Jersey case law to deny people the chance to have a family of their own. By codifying gestational carrier agreements into law, we can ensure that there are regulations and guidelines in place to protect the carrier, the intended parents and most importantly, the child.”
Gestational carrier agreements have become increasingly popular over the past few years. According to the American Society of Reproductive Medicine, there has been a 28 percent increase in gestational carrier cycles since 2007.
"With huge increases in cases of gestational carrier agreements throughout the country, many that include New Jersey families, it is important that we formalize these contracts so that all involved parties’ rights are clearly stated and everyone is protected,” said Senator Buono, D-Middlesex.
In 1988, a landmark custody case in New Jersey, In re Baby M, created a precedent for future surrogacy proceedings. In the case, William and Elizabeth Stern entered into a surrogacy agreement with Mary Beth Whitehead using William’s semen and Mary Beth’s egg. After Mary Beth gave birth to Baby M, she decided that she no longer wished to relinquish her parental rights to the Sterns. The New Jersey Supreme Court sided with Mary Beth and determined that traditional surrogacy is in conflict with public policy since it requires the birth mother to agree to terminate parental rights prior to the birth of the child and requires her to surrender custody of the child before a 72-hour waiting period required for adoptions. While the case of Baby M was a traditional surrogacy arrangement, in 2009 a New Jersey judge applied the standards set by that case to a gestational carrier contract and awarded parental rights to a gestational carrier in the case of A.G.R. v. D.R.H & S.H. The Senators note that this legislation would not change the precedent set by In re Baby M for traditional surrogacy, but rather provide protections for those entering a gestational carrier agreement.
This legislation grew from a New Jersey case, which was heard by the State Supreme Court in March, 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 Union County Superior Court 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 extensive background checks. The Supreme Court has yet to decide on this case.
The bill was approved by the Senate with a vote of 21-11. It now heads to the General Assembly for further consideration.
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