Surrogacy and fertility law in New Jersey has undergone significant evolution in recent years, providing clearer protections for intended parents, surrogates, and the children born through assisted reproduction. The state now recognizes both traditional and gestational surrogacy under legal frameworks that prioritize consent, clarity, and the best interests of the child. For families struggling with infertility or LGBTQ+ couples seeking to grow their families, understanding New Jersey’s surrogacy laws is crucial to navigating the process legally and successfully.
Gestational vs. Traditional Surrogacy
In New Jersey, gestational surrogacy is the most commonly used method. In this arrangement, the surrogate carries an embryo that has no genetic link to her—it is created using the egg and sperm of the intended parents or donors. This form of surrogacy is legally recognized and governed by the New Jersey Gestational Carrier Agreement Act, which took effect in 2018.
Traditional surrogacy, where the surrogate is genetically related to the child because her own egg is used, is not specifically governed by statute in New Jersey. As a result, it carries more legal risk and is generally discouraged without significant legal safeguards.
The Gestational Carrier Agreement Act
The 2018 law legalized and regulated gestational surrogacy in New Jersey. Under this law, intended parents and gestational carriers must enter into a legally binding contract before any embryo transfer occurs. The agreement must:
- State that the gestational carrier agrees to undergo embryo transfer and carry the pregnancy.
- Affirm that the carrier has no parental rights to the child.
- Confirm that the intended parents will assume full legal custody and responsibility after birth.
Both the surrogate and the intended parents must have independent legal counsel, and the carrier must be at least 21 years old, have previously given birth to at least one child, and pass medical and psychological evaluations.
Establishing Parental Rights
One of the most important protections in New Jersey surrogacy law is the ability to obtain a pre-birth order from the court. This allows intended parents to be listed on the child’s birth certificate immediately, avoiding legal uncertainty after delivery. If a valid gestational carrier agreement is in place, courts routinely issue pre-birth orders.
This legal recognition is especially significant for same-sex couples, unmarried partners, and individuals using donated eggs, sperm, or embryos. It ensures that the intended parents’ rights are fully recognized regardless of their biological relationship to the child.
Donor Rights and Fertility Clinics
New Jersey law clearly distinguishes between donors and intended parents. A donor of sperm or eggs used in assisted reproduction has no parental rights or obligations unless otherwise agreed in writing. Fertility clinics must follow strict protocols for consent and documentation to ensure legal clarity in assisted reproduction procedures.
Compensation and Ethical Considerations
Gestational carriers may receive reasonable compensation for medical, legal, and living expenses incurred during the pregnancy. However, any payment must be clearly outlined in the surrogacy agreement. New Jersey prohibits exploitative practices and ensures that compensation does not turn surrogacy into a commercial transaction, balancing ethical concerns with the need to protect the carrier.
Legal Guidance Is Essential
Surrogacy in New Jersey involves numerous legal, medical, and emotional complexities. Even though the law provides a strong framework, every surrogacy case is unique. Both intended parents and surrogates should consult with experienced attorneys who specialize in reproductive law to ensure the process is legally sound and that all parties are fully informed of their rights and responsibilities.
Conclusion
New Jersey is one of the more progressive states in the U.S. when it comes to surrogacy and fertility law. With robust legal protections for gestational surrogacy and a clear process for establishing parentage, the state offers a safe and supportive legal environment for building families through assisted reproduction. Whether you are a hopeful parent or a potential surrogate, understanding the legal process in New Jersey is the first step toward a secure and fulfilling journey.