Male partners can now be parents through gestational surrogacy – the creation of an embryo through in vitro fertilization to be carried by a woman not genetically related to the embryo – but not in New York or New Jersey. New York law prohibits compensated surrogacy and New Jersey does not have a law for enforcing gestational surrogacy. Two new bills are being introduced in the New York and New Jersey legislatures to change that.
The New York Times article “And Baby Makes 3, In New York, a Push for Compensated Surrogacy” http://nyti.ms/1dOTeW6 featured one of the sponsors of the New York Child-Parent Security Act, which would provide a legal framework for gestational surrogacy, with his partner and beautiful daughter through gestational surrogacy. In 2012, the New Jersey Legislature passed the New Jersey Gestational Carrier Agreement Act, only to see Governor Chris Christie veto this badly needed legislation. Sponsors hope to reintroduce the New Jersey bill this year.
In my op ed piece, published in The Star Ledger, http://blog.nj.com/njv_guest_blog/2012/08/the_con_while_nj_erred_in_veto.html I explained the need for gestational surrogacy legislation.
The CON: Why N.J. erred in veto of gestational surrogacy bill
Published: Sunday, August 12, 2012, 8:50 AM
By Star-Ledger Guest Columnist
By Robin Fleischner
With his veto of the New Jersey Gestational Carrier Agreement Act on Wednesday, Gov. Chris Christie passed up a historic opportunity to sign into law bipartisan legislation passed by the Legislature to bring New Jersey into the 21st century for family building. This legislation could have been a nationwide model for regulated, ethical family formation practices as modern medical technology surpasses and supersedes outdated notions of parenthood.
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 for parents: a genetic child. Most carriers are compassionate women who dream of helping childless individuals become parents.
Gestational surrogacy provides a viable second option for women and heterosexual couples who cannot conceive or give birth to a child, and allows the realization of a dream for male partners who could not otherwise have biological children.
For more than a decade, gestational surrogacy has taken place not just in New Jersey, but throughout the world. Yet 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 that 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 health departments have refused to put the intended parents on their children’s birth certificates.
By establishing gestational surrogacy guidelines, the New Jersey Legislature seized the opportunity to provide safeguards for the parties, especially the children, in this increasingly popular and accepted route to creating families. Here are a few examples.
The vetoed act’s protections for the gestational carrier included requiring that she be at least 21 years old, have no 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 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 was the provision that even if there was a lab error and the child was not genetically related to the intended parent, the intended parent was the legal parent and was solely responsible for the support of the child.
The Legislature also successfully dealt with the controversial aspect of gestational carrier arrangements involving payments to carriers for giving birth to a child. The act did not permit compensation, but instead tracked the language of New Jersey’s adoption statute and only allowed payment of the carrier’s reasonable legal fees, medical costs and living expenses.
The act created a predictable mechanism for establishing parentage before the birth of the child. After a gestational carrier became pregnant, the intended parent would obtain a court order of parentage. After the baby’s birth, a birth certificate would be issued naming the intended parent as the child’s legal parent.
The New Jersey Gestational Carrier Agreement Act responded to the urgent need for legislation aimed at a legitimate path to parenthood through gestational carrier agreements, which protect the interests of all the parties, especially the children created. It is a shame that the governor did not sign it into law.
Robin Fleischner is an adoptive parent and an attorney who participated in the drafting of the New Jersey Gestational Carrier Agreement Act. She is a fellow of the American Academy of Adoption Attorneys and the American Academy of Assisted Reproductive Technology Attorneys.