Surrogacy Contracts

An issue that arises for some couples is the ability to carry a pregnancy to term through the traditional methods. The New Jersey Legislature has made surrogacy significantly easier and addresses a key issue that has been outstanding since the Baby M case in 1988. On May 31, 2018, New Jersey Governor Phil Murphy signed legislation that now permits gestational carrier agreements. To understand the legal history of this issue, one must first look at In re Baby M, 109 N.J. 396 (1988).

This matter was the first custody case regarding the validity of surrogacy in the United States. In this matter, a man entered into a surrogacy agreement with the carrier wherein the biological mother would be the carrier and not his wife. The agreement further required that when the carrier gave birth, she would relinquish all rights to the child to the couple. However, upon the birth of the child, the carrier refused to relinquish said rights and decided to keep the child. After the trial court upheld the surrogacy contract and utilized a best interests of the child analysis, the New Jersey Supreme Court invalidated the contract as “against public policy,” but confirmed that a best interest analysis should be used.

The recently passed legislation provides the “legal framework for the agreements and smooths the process for hopeful families.” These contracts permit a woman to agree to carry a fertilized egg of another woman through pregnancy. The legislation requires the surrogate mother to forfeit all maternity rights. According to the New Jersey Law Journal, the bill also requires that a surrogacy contract clearly state that the gestational carrier agree to 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 the birth of the child. This is not considered an adoption and therefore does not require the same formalities. This legislation essentially supersedes and invalidates the ruling in In re Baby M.

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