Ukrainian Surrogacy Avoids US State Legal Uncertainties: One State's Battle
Democratic lawmakers in New Jersey are once again trying to enact legislation—already vetoed twice by Republican Gov. Chris Christie—that would permit legally binding gestational carrier agreements.
In such a contract, a woman agrees to carry the fertilized egg of another woman through pregnancy. S-1238, like its predecessors, would require the surrogate mother to immediately forfeit all maternity rights, which the state Supreme Court deemed untenable in its watershed ruling decades ago in the Baby M case.
Christie vetoed similar bills in 2015 and 2012, but sponsors and supports insist they will continue their efforts.
The Senate passed the bill—sponsored by Sen. Joseph Vitale, D-Middlesex—in a 22-15 vote, split along party lines, with Democrats voting in favor.
The bill now goes to the Assembly, although it is unclear if and when that chamber will act with the Legislature's summer break set to begin. An identical measure—A-910, sponsored by Assemblywomen Valerie Vainieri Huttle, D-Bergen, Annette Quijano, D-Union, and Mila Jasey, D-Essex—is pending before the Assembly Human Services Committee.
"For men and women who are looking to start or expand their families but have struggled to do so through traditional means, surrogacy offers an alternative path to having children," said Vitale in a statement earlier this month. "As science advances, and more couples turn to surrogacy, gestational carrier agreements are imperative to protect the interests of all parties involved, including the carrier, the intended parents and the child."
Arkansas, Delaware, Florida, Illinois, Nevada, New Hampshire, Tennessee, Texas, Utah, Virginia, Washington state and Wisconsin, along with the District of Columbia, allow for gestational surrogacy to some degree, according to Vitale.
In 2012, Christie said in his veto statement that not enough research had been done to study the possible ethical and legal ramifications. And in his 2015 veto statement, Christie said the sponsors had done nothing to assuage his original concerns.
"Permitting adults to contract with others regarding a child in such a manner unquestionably raises serious and significant issues," Christie said in 2012. "While some will applaud the freedom to explore these new, and sometimes necessary, arranged births, others will note the profound change in the traditional beginnings of a family that this bill would enact. I am not satisfied that these questions have been sufficiently studied by the Legislature at this time.
"Validating contracts for the birth of children is a step that cannot be taken without the most serious inquiry, reflection and consensus," Christie added.
It is unclear whether this latest version, if it passes the Assembly, will meet with a different fate than the earlier two versions.
Under S-1238/A-910, the gestational carrier must be at least 21 years old, have already given birth to at least one child, and have completed both medical and psychological evaluations. The intended parents would be required to have completed a psychological evaluation to determine their suitability to enter an agreement, and to have retained an attorney to advise them about the terms and potential legal consequences of entering into an agreement.
The agreement would have to clearly state that the gestational carrier would agree to undergo pre-embryo transfer, to attempt to carry and give birth to the child, and to surrender custody of the child to the intended parent immediately on the birth of the child. The agreement would allow for the gestational carrier to choose her own medical care for the pregnancy, labor, delivery and postpartum care. The agreement would not be considered an adoption, a surrender of custody, or a termination of parental rights.
Additionally, the agreement would state that the intended parent agrees to become the legal parent of the child immediately on his or her birth. The child's birth certificate would name the intended parent as the sole legal parent of the child.
The bill would allow for the intended parent to reimburse the gestational carrier's reasonable medical and other expenses incurred with carrying the child.
New Jersey has a long history regarding the use of gestational carriers.
Surrogate pregnancy contracts made national headlines in 1988 when the state Supreme Court issued its ruling in In re Baby M, which voided surrogacy-for-hire contracts.
In 2012, the court—in a 3-3 split in In the Matter of the Parentage of a Child by T.J.S. and A.L.S.—let stand a lower court ruling that parental rights do not vest in the wife of a man who fathered a child through an anonymous egg donor, when the embryo was carried by an unrelated surrogate.