Some Information on Surrogacy Contracts

Surrogacy contracts, which are also known as gestational carrier agreements, are documents that define the rights and responsibilities of surrogate mothers and intended parents. These contracts are used for all gestational surrogacies in New Jersey, and fertility clinics will not perform surrogacy procedures unless a legally binding agreement is in place.

The New Jersey Gestational Carrier Agreement Act

New Jersey lawmakers passed the Gestational Carrier Agreement Act in 2018. Prior to this law’s passage, paid surrogacy arrangements were illegal in the Garden State. The law created strict requirements that all parties to a gestational surrogacy must meet. These requirements include:

• The surrogate mother and intended parents must be represented by attorneys familiar with this area of the law.
• The surrogate mother must be at least 21 years of age.
• The surrogate mother must have given birth to at least one child before entering into the agreement.
• The surrogate mother must undergo a thorough medical and psychological evaluation.
• The intended parents must undergo a thorough psychological evaluation.
• The agreement must state that the intended parents will accept custody of the child.
• The agreement must state that the surrogate mother will allow the intended parents to accept custody of the child.

The intended parents who sign surrogacy agreements in New Jersey are usually married couples, but they do not have to be. The Gestational Carrier Agreement Act allows individuals and unmarried couples to enter into agreements with surrogate mothers, and same-sex couples have the same rights as opposite-sex couples.

Gestational and Traditional Surrogacy

The Gestational Carrier Agreement Act, which was revised in 2023, applies when the surrogate mother is compensated and undergoes in vitro fertilization procedures to become pregnant. The law does not apply when the surrogate mother’s own eggs are fertilized. Traditional surrogacies are legal in New Jersey, but the surrogate mother can only be compensated for her food, shelter and medical and counseling costs. The vast majority of surrogacies in New Jersey are gestational surrogacies.

The Importance of Qualified Legal Representation

New Jersey law requires surrogate mothers and intended parents to each be represented by a New Jersey adoption attorney when they enter into surrogacy contracts, but this would be advisable even if it were not a legal requirement. Qualified legal representation ensures that the agreement will be fair and legally enforceable and protect the rights of all parties involved. The entire process is far less stressful for intended parents and surrogate mothers when the negotiations are handled by lawyers. The provisions of a surrogacy contact should cover matters including:

• The surrogate mother’s compensation and how that compensation will be modified if more than one egg is fertilized
• The surrogate mother’s responsibility to maintain a healthy lifestyle during the pregnancy
• Whether or not the intended parents will attend prenatal appointments and be present at the birth
• The conditions that would necessitate the termination of the pregnancy

The Surrogacy Contract Procedure

Drafting a surrogacy contract should be a collaborative process. The initial draft of the contract is usually written by the attorney representing the intended parents and sent to the surrogate mother’s lawyer. The surrogate mother and her attorney will then discuss the terms of the agreement. If the surrogate mother is not happy with the agreement and proposes changes, her attorney and the intended parents’ attorney will negotiate until an agreement is reached that satisfies all parties.

Legal Advice and Representation for Intended Parents and Surrogates

If you are a New Jersey resident and plan to enter into a gestational surrogacy arrangement, you will need to abide by the provisions of the Gestational Carrier Agreement Act. This means that you will require the services of an experienced New Jersey adoption attorney. The law firm of Cofsky & Zeidman has over 25 years of experience in this area, and we are ready to answer any questions you have. You can call our Haddonfield office at (856) 429-5005, or you can use our online form to schedule a consultation.