As an assisted reproductive technology attorney representing clients in New Jersey, I am thrilled to partner with Kindbody and the folks at New England Surrogacy, an East Coast-focused surrogacy agency, to provide our communities with free educational resources about surrogacy in the Garden State. This month, we’re celebrating the three-year anniversary of New Jersey’s Gestational Carrier Act, which officially legalized surrogacy across the state after almost thirty years of outlawing the practice.

New Jersey has a unique history with surrogacy. In 1989, the New Jersey Supreme Court issued the first US ruling on surrogacy in the notorious Baby M case. The case concerned a genetic surrogate (one who uses her own eggs), who signed an agreement with the intended parents consenting to carry a child, conceived with the father’s sperm, for the intended parents. When the surrogate decided to keep the child after birth, the intended parents sued to gain full parental rights. Infamously, the New Jersey court ruled that the surrogacy contract violated public policy and recognized the surrogate as the legal mother. The ruling had a lasting and unfortunate legacy—for 29 years, surrogacy was illegal in New Jersey.

The Baby M case sparked a national debate about the ethics of surrogacy. Though not a single jurisdiction had previously enacted any laws regarding the practice, 70 bills regulating surrogacy were introduced in 27 state legislatures before the New Jersey court even issued its opinion. Only one year after the Baby M case was filed in court, 6 states had passed laws prohibiting surrogacy. The biggest problem with these anti-surrogacy laws was that they did not distinguish between genetic surrogacy, where the surrogate uses her own eggs, and gestational surrogacy, where the embryo is formed from the intended mother’s or a donor’s eggs. This distinction is incredibly important because it means that gestational carriers are never genetically related to the child.

Things started to change in New Jersey when a campaign to reform the state’s anti-surrogacy statute gained popularity about a decade ago. In response to improving scientific innovation and evolving attitudes about reproductive technology and non-traditional families, New Jersey’s legislature passed bills lifting the ban in 2012 and 2015. Both bills were vetoed by then-Governor Chris Christie. The campaign to overturn New Jersey’s surrogacy ban was further bolstered by the Supreme Court’s 2015 Obergefell v. Hodges decision to legalize same-sex marriage, and its Pavan v. Smith ruling two years later requiring states to afford equal rights to same-sex parents.

Finally, in May 2018, newly elected Governor Phil Murphy signed S482, or the New Jersey Gestational Carrier Act, into law. This bill was a huge victory for surrogates, LGBTQ+ families, and unmarried and married couples experiencing infertility in New Jersey, who are now comprehensively protected under the law.

Who can be a surrogate in New Jersey?

New Jersey law requires that a surrogate must be at least 21 years old and must have given birth previously. Typically, agencies will pre-screen New Jersey surrogate candidates to make sure they meet these basic requirements. Surrogates must also complete a medical and psychological evaluation.

What are the requirements of a surrogacy contract in New Jersey?

In New Jersey, intended parents and gestational carriers must be represented by separate attorneys. Intended parents pay for the surrogate’s legal fees, in addition to reasonable medical expenses incurred in connection with the surrogacy arrangement. New Jersey law specifies that the surrogate has the right to choose her own medical provider for the pregnancy, labor, delivery, and postpartum care. All of these requirements must be reflected in the surrogacy contract. Once everyone signs the contract, the contract is considered “executed”, and the embryo transfer can be scheduled.

How do New Jersey parents secure their legal rights?

New Jersey requires that intended parents file for a pre-birth order (PBO) with the Superior Court. The PBO asks the court to affirm the legal parentage of the child. An attorney will typically initiate this process during the second trimester of pregnancy. The PBO must include affidavits from the intended parents’ and surrogate’s attorneys, as well as a statement from the medical facility confirming that all legal requirements were followed.

Upon proof that the arrangement meets the legal requirements, the court will issue a PBO that can be used to direct the vital statistics office to put the intended parents’ names on the birth certificate automatically. This often occurs at a court proceeding, though some New Jersey jurisdictions may issue PBOs “on the papers”, which means that a judge will issue the order without a hearing based on the information provided in the affidavits. If a hearing is scheduled, but parentage is not contested, some judges may only require attorneys to attend, and not the parties.

Do parents need to go through an adoption process?

Intended parents working with a gestational carrier in New Jersey do not need to undergo an adoption to further protect their parental rights. In most situations, a PBO is sufficient to automatically put the intended parent(s) name(s) on the child’s birth certificate.

To learn more, join me, Kindbody’s own Dr. Aimee Seundamrong, and Jennifer White, Co-Director at New England Surrogacy on Friday, May 14 at noon for a free webinar about surrogacy in New Jersey! Head to New England Surrogacy’s website for directions on how to participate.

Rachel Wexler
Rachel Wexler
Rachel Wexler, Esq. is an attorney at the Trachman Law Center, LLC, a law firm focused on family formation law, including artificial reproductive technology (ART) and estate planning. Trachman Law Center represents clients in California, Colorado, Montana, New Jersey, New Mexico, and New York. Rachel represents individuals, couples, and families of all backgrounds and sexual orientations in every step of the surrogacy and egg, sperm, and embryo donation process, in addition to providing clients with a full suite of estate planning services.