Bar Talk

We hope you enjoy this third installment of the LGBT Family Law Institute’s Blog. This piece is written by Deb Guston, Esq. of Guston & Guston, LLP.

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 case that, while not outlawing surrogacy in New Jersey, rendered the practice unenforceable and thus relegated most New Jersey surrogacy for decades 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, among others over the years:

  1. The carrier must be over the age of 21; must have given birth to at least one child; must have completed both medical and psychological examinations determining her to be suitable to serve as a carrier; and have consulted with an independent attorney who has counseled her about the legal aspects of service as a carrier.
  2. The Intended Parent(s) must also complete a psychological examination and be represented by an independent attorney.
  3. The agreement must be in writing.
  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. Intended parents who are married, in a civil union or registered domestic partnership must both be parties to the agreement. A single person may be an intended parent.  The Act does not limit intended parent status to married couples or to different-sex couples.
  6. The agreement must be executed after the psychological and medical examinations, but before any medical procedures commence.
  7. 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. 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, as defined in the Act, unless expressly waived, in whole or in part, in writing.

Finally, in respect to enforcement, the Act does provide that even in the event that 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 then 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 waives appearances all together.  Court records will be sealed, but the court records will be made available to the child born upon their request after turning age 18.

On the heals last year’s LGBT friendly amendment to the IVF insurance coverage mandate laws, providing coverage extension to lesbian couples, single woman 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 Assisted Reproduction law.  It provides a gender-neutral termination of parental rights for donors of gametes used in assisted reproduction, whether egg or sperm.  Previously, New Jersey law only mentioned sperm donors.  These updates also update the marital presumption of parentage for the spouse of a married woman or woman in a civil union in non-surrogacy situations.

New Jersey is modernizing its family formation laws and making sure not to leave LGBT couples and single people behind.