When someone carries a fetus during pregnancy for another person or couple, this is considered gestational surrogacy. In 2019, more than 9,000 gestational surrogacy pregnancies took place, which marked a significant increase from the 2,800 that occurred in 2011. Since the surrogacy laws changed in 2018 throughout New Jersey, there have been some important updates made to how this type of pregnancy should be handled.
Changes from New Jersey Gestational Carrier Agreement Act
Once the New Jersey Gestational Carrier Agreement Act passed in 2018, gestational surrogacy became a legally viable option for people who are exploring alternatives for having a child. Before this act, all paid arrangements were illegal and considered unenforceable.
While traditional surrogacy is currently legal in New Jersey, it’s possible only if the surrogate doesn’t receive compensation. It’s also important that there isn’t a pre-birth surrogacy agreement in place. Because of these stipulations, traditional surrogacy is relatively rare throughout the state.
Once this act went through, the gestational carrier gained the ability to waive all rights to the child. The intended parents must also assume parentage and all responsibilities once the child is born. A legal framework was created to provide guidelines for Gestational Carrier Agreements. If this type of agreement is made properly, it’s legally binding. There are, however, some requirements that all parties must abide by.
Difference Between Traditional Surrogacy and Compensated Surrogacy
When you’re considering your options, keep in mind that there are some differences between traditional and compensated surrogacy. As touched upon previously, traditional surrogacy is allowed if it’s not compensated. Any traditional surrogacy contracts that are signed are unenforceable.
For intended parents to claim their legal rights, they’ll need to wait until after the birth. At this time, they’ll only be able to seek adoption. Traditional surrogacy involves the biological mother and egg donor carrying the baby. The embryos are made with a donor’s or the father’s sperm.
Compensated surrogacy arrangements are currently legal. However, there are limits on the amount of compensation that can be paid. These payments must also be provided solely to cover legal fees and standard living expenses. The types of living expenses that can be paid for with this compensation include:
- Clothing
- Medical costs
- Counseling services
- Food
- Shelter
Gestational Surrogacy Requirements
There is a set of guidelines that people must adhere to when it comes to gestational surrogacy. Every intended parent and surrogate needs to have legal representation until the contract has been successfully fulfilled. Each party must have their own representation.
When considering this arrangement, the surrogate needs to be at least 21 years old. They’ll also need to have given birth to one or more children before the current arrangement. The agreement can’t move forward until the surrogate goes through a comprehensive psychological and medical exam. As for the intended parent(s), a psychological examination must be taken.
When a surrogacy contract is made, it must include in-depth details of the arrangement. These details should include statements that the intended parents will accept custody following the birth, the surrogate has a right to make medical care decisions after they notify the parents, and the surrogate is willing to go through an embryo transfer while also providing the intended parents with custody after the birth.
The surrogacy process can officially start once both parties sign the contract. If you’re about to seek gestational surrogacy, schedule an appointment with our New Jersey adoption attorney to discuss your case.
Same-Sex Surrogacy Laws
Same-sex surrogacy is currently legal throughout New Jersey. LGBT+ intended parents and same-sex couples have the same rights that opposite-sex couples have. The only exception to this rule is requiring a sperm or egg donor to finalize the IVF procedure.
Use of Embryo, Donor Egg or Sperm
In New Jersey, using a donor embryo, sperm or egg doesn’t change the ability a non-biological parent has to request a pre-birth order during a gestational surrogacy. State laws indicate that a donor doesn’t have rights to the child and isn’t the legal parent.
If donor sperm is used with traditional surrogacy, a co-parent or stepparent adoption may need to be completed. In most situations, donor rights will be terminated. However, an extra contract might need to be written up for anyone who uses a donor.
If you’re thinking about forming a family through surrogacy, you may need legal assistance if a contract is being created and signed. Call our New Jersey adoption attorney today at (856) 429-5005 to speak with a representative or schedule your first consultation.
