Gestational Surrogacy in New Jersey - What You Need to Know

New Jersey is a safe and supportive state for family-building via surrogacy. In May 2018, the New Jersey Gestational Carrier Act officially legalized gestational surrogacy across the state. This bill was a huge victory for surrogates, same-sex couples, and couples experiencing infertility in New Jersey, who are now comprehensively protected under the law.

At Trachman Law Center, we are well-versed in the specific requirements for the surrogacy process in New Jersey, which we can guide you through.

Legal History

Today, surrogacy is a legal and protected practice in New Jersey, thanks to the New Jersey Gestational Carrier Act, codified into state statutes as N.J.S.A 9:17-65 et seq. Read the full text of the law here.

However, surrogacy was not always legal in the Garden State. 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 (also known as a “traditional 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 long 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 no state had enacted a single law regarding surrogacy before the case, 70 surrogacy bills 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 (traditional) surrogacy, where the surrogate uses her own eggs, and gestational surrogacy, where the embryo is formed from the intended mother’s eggs or from an egg donor.

In the US today, a large majority of all surrogacy arrangements are gestational. As gestational carriers are never genetically related to the child, the ethical and legal implications of this practice are distinct from those that arise from genetic surrogacy. As gestational surrogacy became a more common practice and better understood by the public, a campaign to reform New Jersey’s anti-surrogacy statute gained popularity.

Who can be a surrogate in New Jersey?

In New Jersey, a surrogate must be at least 21 years old and must have given birth at least once before. Our agency will pre-screen New Jersey surrogate candidates to make sure they meet these basic requirements. Surrogates must 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 surrogacy agreements must provide that the surrogate has the right to choose her own medical provider for the pregnancy, labor, delivery, and postpartum care. All of these requirements will 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. We can walk you through the steps of this process particular to your jurisdiction.

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.