Vainieri Huttle, Quijano & Jasey “Gestational Carrier Agreement” Bill Gets Final Legislative Approval

Bill Would Provide Legal Protections to Help Individuals Struggling to Conceive

Legislation sponsored by Assemblywomen Valerie Vainieri Huttle, Annette Quijano and Mila Jasey to provide legal protections to those struggling to conceive a child who wish to use a gestational carrier received final legislative approval from the full Assembly on Thursday by a vote of 46-24-2. 

The bill (S-866/A-2648), titled the "New Jersey Gestational Carrier Agreement Act," would authorize a written contract under which a woman agrees to carry and give birth to a child created using assisted reproduction on behalf of an intended parent. 

Unlike traditional surrogacy, in which a woman is artificially inseminated with the semen of the intended father and gives birth to a child through the use of her own egg, a gestational carrier does not make use of her own egg and therefore is not genetically related to the child. 

The issue of surrogacy garnered national headlines in the late 1980's with the case of "Baby M," in which the New Jersey Supreme Court found traditional surrogacy agreements invalid because they violated various public policies and state statutes. In 2009, a New Jersey Superior Court ruled that the findings in the Baby M case apply to gestational surrogacy as well as traditional surrogacy cases.

Because advances in reproductive technology now allow for the transfer of an embryo into the body of a woman who is not genetically related to the child, traditional surrogacy agreements like the one in Baby M, and adoption, are no longer the only means by which a couple that is having reproductive difficulties may have children. 

"Ignoring the legal issues that accompany technological advancements does not remove the challenges, it merely adds an additional burden on loving couples or individuals who are already struggling to have a child," said Vainieri Huttle (D-Bergen). "Without this legislation, intended parents and gestational surrogates will continue having children through these arrangements but without legal protections or they will be forced to move to other states that afford them more security."

The bill would take into account the advances in reproductive technologies and permit gestational carrier agreements, which would stipulate that upon the birth of the child, the intended parent becomes the legal parent of the child and the woman - the gestational carrier - would have no parental rights or obligations.

"For women and men struggling to have a baby, a gestational carrier can be the answer to the family they have longed for," said Quijano (D-Union). "This bill would provide a legal framework for gestational carrier agreements in order to protect all parties involved - from the woman who has agreed to carry the baby to the intended parents, and most importantly, the children."

Under the bill, a gestational carrier must satisfy certain requirements:

- be at least 21 years of age;

- have given birth to at least one child;

- have completed medical and psychological evaluations conducted by licensed professionals; and 

- have retained an attorney independent of the intended parent but for whose services the intended parent would be permitted to pay. 

"Families who are desperate to have a child and are willing to go to these lengths should be afforded legal protections, especially when all consenting adults are involved," said Jasey (D-Essex/Morris). "Rather than putting barriers in their way, we should be helping them pursue this option in a legally binding manner to help protect the interests of the child."

The bill also requires that an intended parent have completed a psychological evaluation conducted by a licensed professional and to have retained an attorney to advise about the terms and potential legal consequences of entering into the agreement. Single people, as well as those who are married or in a civil union or domestic partnership, are permitted to enter into gestational carrier agreements as either intended parents or as gestational carriers.

The bill requires that the agreement be in writing and executed by the gestational carrier, her spouse or partner, if any, and the intended parent. If the intended parent is married or in a domestic partnership or civil union at the time of entering the agreement, both spouses or partners are required to enter into the agreement as intended parents. If the intended parent is not married or in a civil union or domestic partnership, any other person who wishes to be an intended parent must duly execute the agreement as an intended parent.

The agreement may only be executed after the parties have undergone the required medical and psychological screenings and the attorneys who consulted with the parties are required to submit the affidavits of representation in any actions filed with the court.

Among the many details the agreement must include are the express terms of the process the gestational carrier will go through, the right the carrier will have to medical care throughout the process, and the financial responsibilities of the parties.

With regard to the intended parent, the agreement is required to include express terms that the intended parent agrees to accept custody of the child immediately upon the birth of the child and assume sole responsibility for the support of the child. 

After a gestational carrier becomes pregnant in connection with a valid gestational carrier agreement, the intended parent must file a complaint for an order of parentage with the Superior Court. A parent and child relationship established by a valid gestational carrier agreement shall be the basis for a child support order and an intended parent would be legally obligated to support the child even in the event that the intended parent breaches the agreement. 

All records and filings in connection with a gestational carrier agreement are to remain confidential and unavailable to the public, except to a child born of a valid gestational carrier agreement who is at least 18 years of age and who submits a written, notarized request for the records or filings. 

The bill would take effect immediately upon enactment and apply to any gestational carrier agreements entered into on or after the effective date.

The bill now heads to the governor's desk for consideration.