Gestational Surrogacy in New Jersey

New Jersey Surrogacy Laws

The New Jersey Gestational Carrier Agreement Act (signed into law on May 30, 2018 and effective immediately) provides for enforceable gestational carrier agreements and pre-birth orders in NJ under certain conditions.

 

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Pre-Birth Parentage Orders

Do courts grant pre-birth parentage orders?  Yes

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?  Yes

  • Married heterosexual couple using own egg and own sperm: Yes
  • Married heterosexual couple using an egg donor or sperm donor: 
  • Unmarried heterosexual couple using own egg and own sperm: Yes
  • Unmarried heterosexual couple using an egg donor or sperm donor: Yes
  • Same-sex couple using an egg donor or sperm donor:  Yes
  • 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: Yes
  • Unmarried heterosexual couple: Yes
  • Same-sex couple: Yes
  • Single parent: Yes

What are the bases for venue?  The Chancery Division of Family Court in the county where the birth is anticipated to occur, county of the Intended Parent’s residence, or county of the Gestational Carrier’s residence

 Do results vary by venue?  No

 Is a hearing required to obtain a pre-birth order?  Possibly.  In uncontested hearings, the parties do not need to appear, but their attorneys may need to appear.

 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?  Unknown.  One would hope that New Jersey Vital Records would honor other state’s pre-birth orders for children born in New Jersey if the process and contract comply with the NJ Act.

 What is the typical time frame to obtain a birth certificate after delivery?  Within a few weeks from the municipality if parents go in person, or within a few months if parents have it sent from the State

Same-Sex Couple

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 only? Yes, but only through a post-birth order, not a pre-birth order.

Alternatively, can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier?   Yes, but only through a post-birth order, not a pre-birth order.

 Can they subsequently obtain a birth certificate naming only the biological father, with no mention of the Gestational Carrier? Yes, but only through a post-birth order, not a pre-birth order.

Can they subsequently obtain a birth certificate naming both fathers, with no mention of the Gestational Carrier? Yes, but additional steps may have to be taken.

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? Yes, so long as the filing is completed within 3 months of the child’s birth.

Second Parent & Stepparent Adoptions for New Jersey

Note: This situation typically arises if the child is born outside 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, but if they are not married, a home study is required, in addition to a background check.  If they are married and doing a stepparent adoption, no home study is required, only the background check.

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 & 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.  Under the New Jersey Gestational Carrier Agreement Act, the definition of Donor includes anyone who contributes gametes for use in assisted reproduction, except for an intended parent who contributes gametes to be used in assisted reproduction pursuant to a valid gestational carrier agreement.  Furthermore, the statute reads, “Unless a person who donates gametes for use in assisted reproduction enters into a written contract to the contrary, the gamete donor is treated in law as if the gamete donor were not the legal parent of a child thereby conceived and shall have no rights or duties stemming from the conception of the child.”

Traditional Surrogacy in New Jersey

The New Jersey Gestational Carrier Agreement Act specifically excludes traditional surrogacy.  Under case law, Traditional Surrogacy is permitted in New Jersey if it is uncompensated and if there is no pre-birth agreement to surrender the child. 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 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:

Other Attorneys Practicing Reproductive Law In This State:

Donald Cofsky
Haddonfield, NJ
DCC@209Law.com
(856) 429-5005

 

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