New Jersey Joins Other States In Regulating Gestational Carrier Arrangements for Family Formation

On May 30, 2018 Governor Phil Murphy of New Jersey signed into law the New Jersey Gestational Carrier Agreement Act. This new law will protect all parties involved in a gestational carrier arrangement, including the gestational carrier, the intended parents, and most importantly, any child resulting from such an arrangement. These agreements will now be enforceable and all parties will know each one’s obligations. The Act mirrors the N.J. Adoption Statute in that it permits payment of expenses related to the arrangement including reasonable living expenses as allowed under the Adoption Statute. It does not provide for separate compensation.

There are a number of mandatory requirements in order to avail oneself of the protections of the Act. The major ones include the requirement that a gestational carrier must be at least 21 years old, have had at least one child, and that the parties must receive counseling as to the effect of being involved in such an arrangement. All parties must be represented by separate attorneys.

If all requirements have been fulfilled, the intended parents can apply to the court for a pre-birth order naming them as the legal parents of any child resulting from the arrangement. It is extremely important since once the order is issued the intended parents will be responsible for that child regardless of any change in their relationship and regardless of any issues which may arise involving the child. This certainly is in everyone’s best interest. The other aspect of the Act cures an issue that was the basis of the case which I argued before the New Jersey Supreme Court almost six years ago. In that case a pre-birth order under the current case law had been requested for a husband and wife where the sperm of the husband was used to create an embryo with an egg from an anonymous donor. The embryo was transferred to a gestational carrier with the understanding of all parties that the wife would go on the birth certificate as the child’s mother. A split decision by the New Jersey Supreme Court resulted in the requirement that both of the intended parents must be genetically related to the child in order to have any type of pre-birth order issued. That meant that the intended mother would be required to file for a stepparent adoption.

It was as a result of this unfair treatment of infertile women that the legislature addressed this issue. The New Jersey Gestational Carrier Agreement Act was passed twice by the legislature since then, but vetoed twice by Governor Christie. It has now passed a third time and has been signed into law by Governor Murphy. The Act will now apply to children without a requirement that both intended parents be genetically related to the child. This is a great advancement for family formation in New Jersey, and simply regulates that which has already been occurring in this state. Several of my colleagues who are members of both the Academy of Adoption and Assisted Reproduction Attorneys and the New Jersey Academy of Adoption Attorneys worked with the legislature in drafting the bill to correct this issue.

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To set up an appointment with an NJ adoption lawyer or a PA adoption lawyer, contact the law office of Cofsky & Zeidman today. You can call our office in Haddonfield at 856-429-5005 or in Woodbury at 856-845-2555. We can also be reached in Philadelphia at 215-563-2150.