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Assisted Reproduction

N.J. Senate Approves Bill Expanding Definition of Surrogate Parenting

The New Jersey Senate is approving a bill that expands the definition of surrogate parenting, making the law more clear with couples entering into a gestational carrier agreement.

Surrogate mother Mary Beth Whitehead sits with her dog in this 1997 file photo. She was embroiled in a famous bitter fight for custody over “Baby M” with William Stern and his wife in New Jersey. The 1987 court ruling was the first in the nation on the validity of surrogacy. While the court ruled that the surrogacy contract was invalid according to public policy, it recognized Mary Beth Whitehead, then of Brick, as the child’s legal mother and Stern, then a Tenafly resident, as the father who was awarded custody. Whitehead received visitation rights. (ABC, INC)

The Senate voted 22-13 to pass the “New Jersey Gestational Carrier Act,” (S866), a bill opponents have warned would create a “breeder” class of women. Gov. Chris Christie vetoed the same bill in 2012 after concluding there had not been enough discussion over the “profound” questions it raised.

Unlike traditional surrogates, whose eggs are fertilized by the intended father, gestational carriers are women who have no biological link to the fetus because the egg belongs to another woman.

Surrogacy is legal in New Jersey — home to the the 1988 landmark Baby M case that struck down the surrogate parenting contract as illegal and unenforceable. But without a law that recognizes the advances in fertility treatments and the rise of gestational carrier arrangements, couples have gone to court to protect their interests and lost.

“Many men and women struggling to get pregnant spend years dealing with anguishing infertility issues and painful fertility treatments prior to finding hope for having a child through gestational surrogacy,” said Senate Majority Leader Loretta Weinberg, (D-Bergen), one of the bill’s sponsors. “Gestational surrogacy agreements are being made in the state, yet there is no legal framework for their implementation. With this thoughtful legislation, we can ensure that each of these families and their gestational surrogates has a clear set of set standards to appropriately enter into these arrangements prior to the child’s conception, eliminating any post-birth confusion or legal proceedings.”

The bill would require women who agree to be gestational carriers to have been pregnant before, so they would know what to expect emotionally and medically. They also would have to be at least 21 years old and undergone medical and psychological evaluations. They would be entitled to have the intended parents pay for their attorney and their pregnancy and postpartum medical expenses.

The carrier or surrogate would sign an agreement stating she would undergo pre-embryo transfer, attempt to carry and give birth to the child, and surrender custody of the child to the intended parent immediately upon birth, according to the bill. The intended parents’ names, not the carrier’s name, would appear on the birth certificate.

Arkansas, Delaware, Florida, Illinois, New Hampshire, Nevada, Tennessee, Texas, Utah, Virginia, Washington State and Wisconsin’s laws allow for gestational surrogacy in some fashion, although the sponsors of New Jersey’s legislation said theirs could serve as a national model.

“As the option of surrogacy continues to become more popular, ensuring that all parties involved are protected is imperative,” said Sen. Joseph Vitale, also a sponsor. “That is what a gestational carrier agreement can provide to both the carrier as well as the intended parents, a legal contract that ensures the best interest of all parties involved, including the child.”

The bill moves to the Assembly for further consideration.


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