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New Jersey’s New Surrogacy Law Makes Gestational Carrier Agreements Enforceable

Couple hire a surrogate to carry out their baby

Governor Phil Murphy recently signed into a law a bill that will help infertile and LGBT couples feel secure in entering “gestational carrier arrangements” with a woman who will carry their child to term and now make surrogacy contracts enforceable.  Continue reading to learn about the new law, and contact a knowledgeable New Jersey family law attorney with any questions about surrogacy or custody. 

Gestational carrier agreements are now enforceable in New Jersey

Effective May 30, 2018, the New Jersey Gestational Carrier Agreement Act (S482) clarifies the law for women who have no biological relationship with the child but act as the birth mother for an implanted fertilized embryo.  The Act will allow the intended parents to enter an enforceable agreement with a carrier under which the carrier agrees to give up all legal rights to the intended child at the time of its birth, in favor of the intended parents who must assume all parental rights and responsibilities.

Previously, intended parents were limited to unenforceable compassionate agreements involving surrender and post-birth adoption, leaving prospective parents in danger of complicated legal battles should the carrier decide to keep the child after birth.  The new law allows for certainty in the arrangement before the birth of the child.

Requirements for a valid gestational carrier agreement

The Act lays out the minimum requirements for an agreement to be valid but gives parents flexibility to add additional terms.  In order to be a carrier, a woman must satisfy the following requirements:

  • Be 21 years of age
  • Have given birth to at least one child
  • Complete medical and psychological evaluations
  • Retain an attorney separate from the intended parents
  • If the carrier is married or in a civil union or domestic partnership, her spouse must be party to the agreement

The intended parents must also undergo a psychological evaluation and be represented by their own attorney.  The agreement must be in writing to be valid.  Any financial arrangements must be explicitly set out in the agreement, and the carrier has the right to reasonable medical care paid by the intended parents.  The intended parent can be a single person or a couple (same sex or opposite-sex), but if a married couple, the spouse must be party to the agreement and undergo the same medical evaluations. 

The Act sets out expedited court procedures for pre-birth establishment of parentage.  Valid agreements are proof of a parent-child relationship for family law purposes, including child support obligations.  The court records can be sealed, but they will be available to the child upon his/her request upon reaching age 18.

If you are considering gestational surrogacy in New Jersey and have questions about your options, call the compassionate and skilled New Jersey family law attorneys at the Englewood offices of Herbert & Weiss for a free consultation at 201-440-6300.

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