New Jersey needs laws governing surrogacy. Gestational surrogacy – creation of an embryo through in vitro fertilization, to be carried by a woman not genetically related to the embryo (a gestational carrier) – assists in the fulfillment of one of the deepest human longings, to have a child. Most carriers are compassionate women who dream of helping childless individuals become parents.
For over a decade, gestational surrogacy has taken place not just in New Jersey, but throughout the United States and the world, but New Jersey, like the majority of states, has no statutory or case law providing for enforcement of gestational carrier arrangements and therefore no certainty or protection of the rights of all parties, including the children. As a result, residents have been forced to leave New Jersey to locate gestational carriers in other states which permit enforcement of gestational carrier agreements and provide for the intended parents to become the legal parents of the children created.
An even more troubling dilemma is posed for children when no legislative or judicial mechanism for enforcement of an agreement exists. Some children born as a result of gestational carrier agreements have been left without legal parents when courts have refused to grant orders of parentage to the intended parents, or Departments of Health have refused to put the intended parents on their children’s birth certificates.
This week, I testified before the New Jersey Senate Health and Human Services Committee in support of The New Jersey Gestational Carrier Agreement Act (http://www.njleg.state.nj.us/2014/Bills/S1000/866_I1.PDF), drafted with Fellows of the New Jersey Academy of Adoption Attorneys, the American Academy of Adoption Attorneys (www.adoptionattorneys.org), and the American Academy of Assisted Reproductive Technology Attorneys (www.aaarta.org) . The Committee approved the bill for introduction into the Senate.
By establishing gestational surrogacy guidelines, the Act provides safeguards for the parties, especially the children, in this increasingly popular and accepted route to creating families. Here are a few examples.
Protections for the gestational carrier include: she must be at least 21 years old; she cannot have any genetic connection to the child (in sharp contrast to the traditional surrogacy in the Baby M case in which the carrier’s own egg was used); and she must have given birth to at least one child. One of the best examples of the drafters’ commitment to the best interest of the children created is the provision that even if there is a lab error and the child is not genetically related to the intended parent, the intended parent is the legal parent and is solely responsible for the support of the child.
The Act creates a predictable mechanism for establishing parentage before the birth of the child. After a gestational carrier becomes pregnant, the intended parent obtains a court order of parentage. After the baby is born, a birth certificate is issued naming the intended parent as the child’s legal parent.
The New Jersey Gestational Carrier Agreement Act responds to the urgent need for legislation aimed at a legitimate path to parenthood through gestational carrier agreements, which protects the interests of all the parties, especially the children created.