New Jersey Passes Gestational Carrier Law and Amendments to Update Artificial Insemination Law

Legally Speaking is a guest authored column. The specific content of each column is written by the author as he/she understands the facts--scientific, medical, legal or otherwise--as they relate to the information presented, and in no way reflects ASRM's understanding, opinion or presentation of these facts.

In May, and after an almost six-year gestation, New Jersey finally gave birth to a gestational carrier law, delivering enforceable surrogacy contracts to the Garden State.  Governor Phil Murphy signed the New Jersey Gestational Carrier Agreement Act (S482) into law on May 30, 2018 after the bill had twice been passed, but vetoed, under the prior administration. The law became effective immediately. Written by a working group of ART attorneys, with the assistance of legislative drafters, the law effectively brings gestational surrogacy in New Jersey out from under the shadow of Baby M, the 1988 New Jersey Supreme Court traditional surrogacy case that, while not outlawing surrogacy in New Jersey, had rendered the practice unenforceable. As a result, most New Jersey surrogacy arrangements had been limited to compassionate agreements and at-risk arrangements followed by adoption or post-birth surrender of the carrier’s parental rights to establish parentage for the Intended Parents.

The new law covers gestational surrogacy only.  An enforceable agreement must provide for the following, modeled on best practices developed by ASRM, SART and the Academy of Adoption & Assisted Reproduction Attorneys (AAAA), among others over the years:

  1. The carrier must be over the age of 21, have given birth to at least one child, have consulted with an independent attorney who has counseled her about the legal aspects of service as a carrier, and have completed both a medical and a “psychological evaluation approving her suitability to serve as a carrier.” *
  2. The Intended Parent(s) must be represented by an independent attorney and complete “a psychological evaluation approving their suitability to enter into a gestational carrier arrangement.” *
  3. The agreement must be in writing and executed after the psychological and medical evaluations, but before any medical procedures commence.
  4. If the carrier is married or in a civil union, her spouse or partner must be a party to the agreement and must participate in the psychological and legal counseling.
  5. The Act does not limit intended parent status to married couples or to different-sex couples, but Intended Parents who are married, or in a civil union or registered domestic partnership, must both be parties to the agreement.  A single person may be an Intended Parent. 
  6. Attorneys must provide affidavits of representation stating that the parties have had independent representation.

The Act requires certain specific content in all agreements, but does not limit content. Most importantly, the Act requires acknowledgement that:

  1. The Carrier shall surrender the child to the intended parents immediately upon delivery and the Intended Parents shall accept custody, regardless of the health condition of the child;
  2. The Carrier has a right to medical care for the pregnancy, labor, delivery and postpartum recovery of her choice; and
  3. The agreement shall be presumed enforceable if the written agreement satisfies the requirements of the statute.

The Act requires that any financial agreements be set forth in the agreement and that the Intended Parents shall reimburse the carrier’s “reasonable expenses” unless expressly waived, in whole or in part, in writing. “Reasonable expenses” are defined in the Act to include related “medical, hospital, counseling or other similar expenses,” “reasonable attorney fees and costs” and “the reasonable living expenses of the gestational carrier during her pregnancy including payments for reasonable food, clothing, medical expenses, shelter, and religious, psychological, vocational, or similar counseling services during the period of the pregnancy and during the period of postpartum recovery.”

Finally, regarding enforcement, the Act provides that in the event there is some defect in the written agreement, a court of competent jurisdiction shall resolve any dispute based on the parties’ intent.

The Act goes on to establish that the Intended Parents have an obligation to support the child born pursuant to a gestational carrier agreement and that such an agreement shall be valid proof for a court to find a child support obligation, thus making any other establishment of parentage unnecessary.

The Act also outlines the judicial process for the establishment of parentage by pre-birth order, requiring expedited handling to the extent possible and waivers of court appearances by parties, unless the court itself waives appearance.  Court records will be sealed, but the court records will be made available to the resulting child upon his/her request after turning age 18.

On the heels of last year’s amendment to New Jersey’s IVF insurance coverage mandate laws, providing coverage extension to lesbian couples, single women and arguably gay men using surrogacy to grow their families in the small employer and state employee insurance markets, the Gestational Carrier Agreement Act also updates New Jersey Artificial Insemination law.  The updates include a gender-neutral termination of parental rights for sperm or egg donors in assisted reproduction (previously the law only addressed sperm donors), as well as expanding the marital presumption of parentage to any spouse of a married woman or woman in a civil union in non-surrogacy situations.

*Noted by Susan Crockin, J.D. While the law has been generally well received, including the requirement for a mental health evaluation, one concern raised by a number of mental health professionals is the law’s definition of “psychological evaluation”, which is “an evaluation and consultation by a clinical social worker, psychotherapist, or psychiatrist licensed by the State of New Jersey (or another state or D.C.).” As there is no specific professional license for “psychotherapists,” (as contrasted with psychologists, who most often perform and assess the formalized testing recommended by ASRM guidelines), the law may have inadvertently authorized a broader than intended group of professionals to assess and evaluate parties to a gestational carrier arrangement.  In contrast to the New Jersey legislation, Uniform Parentage Act 2017, requires that both gestational carriers and intended parents, “complete a mental-health consultation by a licensed mental-health professional.”  The concern over the more ambiguous New Jersey language points to the inter-professional nature of ART arrangements, and the challenge of ensuring that all relevant aspects of any regulatory framework are addressed.

A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D. and guest authors who offer unique perspectives and expertise on significant legal topics.
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