NJ legislature passes law to keep pace with reproductive technology


Thanks to modern reproductive technology, a woman can bear a baby for nine months, but not be the mother of the child. Likewise, a man can provide the genetic material to create a child without the intention of becoming a father. However, while science has radically changed the way people become parents, parental rights laws have not kept pace with these advances.

Many states outright ban surrogacy agreements, while others will not enforce so-called surrogacy contracts. In New Jersey, the state Supreme Court ruled in 1988 that surrogacy contracts were inapplicable to public policy. Three decades later, In the case of baby M, 109 NJ 396 (1988) is still a good law.

In New Jersey, the legislature recently passed a bill that would allow individuals to enter into legal contracts for surrogacy using gestational carriers. the New Jersey Gestational Carrier Agreement Act now awaits Governor Phil Murphy’s review.

A gestational pregnancy agreement is a written contract under which a woman agrees to bear and give birth to a child she is not genetically related to and who is created through assisted reproduction on behalf of an intended parent. When the child is born, the intended parent becomes the legal parent of the child and the woman, called a “gestational carrier”, has no parental rights or obligations. While this type of reproductive arrangement is not extremely common, it carries emotional and legal risks for everyone involved.

Proponents argue that being able to describe the rights and obligations of each party in a legal contract can help avoid disputes. Senator Joseph Vitale, D-Middlesex, one of the main sponsors of the bill, said in a statement: “For men and women who are looking to start or expand their families but have found it difficult to Done by traditional means, surrogacy agreements offer an alternative route to having children. Gestational Carrying Agreements are imperative to protect the interests of all parties involved, including the carrier, intended parents and This bill will provide the legal framework for the agreements.

Under the proposed legislation on gestational carriers (S-482, A-1704), the contract must contain express conditions that the gestational carrier agrees to undergo a pre-embryo transfer, attempt to carry and give birth to child and waive custody of the child. the child to the intended parent from the birth of the child. With regard to the intended parent, the agreement must include express conditions under which the intended parent undertakes to accept custody of the child from the birth of the child and to assume sole responsibility for the child. maintenance of the child.

Among other provisions, the agreement must also expressly state that the surrogate mother has the right to have medical care for pregnancy, labor, delivery and postpartum care provided by a doctor of her choice after having received it. informed the future parents of his choice. In addition, a binding gestational carrier agreement must describe the financial responsibilities of the parties and include a provision that the intended parent must pay the reasonable expenses of the gestational carrier.

Governor Chris Christie has twice vetoed similar legislation. Supporters of the bill expect Gov. Phil Murphy to be more receptive; however, he has yet to state whether he plans to sign the Gestational Carrier Agreement Act.

Donald Scarinci is a New Jersey attorney and managing partner of Scarinci Hollenbeck, LLC a business law firm with offices in New York, New Jersey and Washington, DC. His columns feature legal issues in the news and articles on business and the practice of law. He also writes regularly in the observer and the Constitutional law journalist.


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