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GESTATIONAL SURROGACY IN NEW JERSEY

New Jersey has published case law (A.H.W. and P.W. v. G.H.B. (2000) and In re T.J.S. (2012)), but it is not favorable to Gestational Surrogacy when there is any kind of compensation. The net result is that compensated surrogacy arrangements with Gestational Carriers in New Jersey are unenforceable.

PRE-BIRTH PARENTAGE ORDERS

Do courts grant pre-birth parentage orders?  Yes, but they are of limited value. A pre-birth order is stayed until 72 hours after delivery so that the Gestational Carrier (and her spouse, if married) has time to relinquish her legal rights to the child post-birth.  Moreover, a pre-birth order can rule on who the parents are, but not on the underlying surrogacy contract, which is unenforceable.
 
Can both Intended Parents be declared the legal parents in a pre-birth order if at least one parent is genetically related to the child?
Note: remember that even with a pre-birth order, the Gestational Carrier has a 72-hour period to relinquish her rights both birth.

  • Married heterosexual couple using own egg and own sperm: Yes
  • Married heterosexual couple using an egg donor or sperm donor: No, only the biological parent can obtain a pre-birth order, requiring a 2-step process: The couple must then return to their home state to obtain a stepparent adoption for the Intended Mother.
  • Unmarried heterosexual couple using own egg and own sperm: Yes
  • Unmarried heterosexual couple using an egg donor or sperm donor: No, same as married couple using a donor.
  • Same-sex couple using an egg donor or sperm donor:  No. The biological parent can obtain a pre-birth order, but there are unresolved issues with respect to the non-biological parent, depending on their gender and marital status.
  • Single parent using own egg or sperm: Yes

Can the Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child? 

  • Married heterosexual couple: No
  • Unmarried heterosexual couple: No
  • Same-sex couple: No
  • Single parent: No 

What are the bases for venue?  The county of the Intended Parents’ residence, the county of the Gestational Carrier’s residence, or the county of the child’s birthplace
 
Do results vary by venue?  No  
 
Is a hearing required to obtain a pre-birth order?  Yes, but it depends on the judge as to whether the parties must appear. If a post-birth adoption is required, there will always be a hearing. 
 
Is a pre-birth order possible in New Jersey based on a Gestational Carrier’s plan to deliver in New Jersey, if no party lives in New Jersey?  Yes  
 
Will New Jersey Vital Records honor a pre-birth order from another state?  Probably not, based on the position that it would result in an order that is against public policy.
 
What is the typical time frame to obtain a birth certificate after delivery?  Within a few weeks from the municipality, within a few months from the State, or within several months after an adoption

Same-Sex Couples

How are same-sex parents named on the final birth certificate?  Parent and Parent
 
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier?  Yes  
 
Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier?  Yes, so long as the filing is completed within 3 months of the child’s birth. 
 
Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in New Jersey (i.e., neither of the Intended Parents lives in New Jersey)?  Yes, so long as the filing is completed within 3 months of the child’s birth.

SECOND PARENT & STEPPARENT ADOPTIONS FOR NEW JERSEY RESIDENTS

Note: This situation typically arises if the child is born outside of the state.  The parents then return to New Jersey to obtain a second parent adoption or stepparent adoption in New Jersey.

Will courts in New Jersey grant second parent adoptions or stepparent adoptions to heterosexual couples living in New Jersey? Yes
Does the couple need to be married?  No

 
Will courts in New Jersey grant second parent adoptions or stepparent adoptions to same-sex couples living in New Jersey?  Yes
Does the couple need to be married?  No

EGG AND SPERM DONATION

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?  Yes, but the statute N.J.S. 9:17-44 refers to sperm donors only.
 
If the statute only refers to sperm donors, is there a case law interpreting this statute to provide the same protection in the egg donor context?  No

TRADITIONAL SURROGACY IN NEW JERSEY

Traditional Surrogacy is permitted in New Jersey if it is uncompensated and if there is no pre-birth agreement to surrender the child. However, all Traditional Surrogacy agreements are unenforceable. The Intended Parents must wait until after the delivery to adopt their child. The famous Baby M case, the very first public court Traditional Surrogacy court decision, was decided in New Jersey over 25 years ago and has not been superseded.

State law information provided by the following attorneys practicing Reproductive Law in this state:
 
Donald Cofsky
Haddonfield, NJ
DCC@209Law.com
(856) 429-5005
 
Melissa Brisman
Montvale, NJ
melissab@reproductivepossibilities.com
(201) 505-0099
 
Other attorneys practicing Reproductive Law in this state:
 
Tiffany L. Palmer, Esq.
tpalmer@jplaw.com
www.jplaw.com
 
Nina E. Rumbold, Esq.
nrumbold@adoptionlawny.com
www.adoptionlawny.com
 
Denise E. Seidelman, Esq.
dseidelman@adoptionlawny.com
www.adoptionlawny.com
 
Yifat Shaltiel
ys@yslawgroup.com
www.yslawgroup.com
 
Robin Fleischner
robin@adoptsurrogatelaw.com
www.adoptsurrogatelaw.com

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