The New Jersey legislature has passed legislation that will allow for surrogacy-for-hire contracts. Such legislation was previously vetoed twice, but found success recently, ending a period of nearly thirty years of unenforceability of such contracts.
A surrogacy-for-hire contract pays a surrogate for the service of agreeing to fertilize an egg of another woman through pregnancy. After the birth of the baby, the mother must immediately give up all maternity rights. The bill’s chief sponsor, Senator Joseph Vitale, highlighted that it gives individuals who are unable to start a family an opportunity to do so anyway stating, “[m]en and women who are looking to start or expand their families but have struggled to do so through traditional means, gestational carrier agreements offer an alternative path to having children. Gestational carrier agreements are imperative to protect the interests of all parties involved, including the carrier, the intended parents and the child.”
Lawmakers were far from in agreement about the bill. An identical version of the bill was first vetoed in 2012, and then again in 2015. In that bill, former Governor Chris Christie stated “[w]hile 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.” The bill confronted a prior holding which made national headlines at the time of its decision in 1988. The New Jersey Supreme Court famously voided surrogacy-for-hire contracts in In re Baby M. In that case, a mother entered into an agreement with a husband and wife to carry a fetus to term. She was supposed to surrender her rights as the child’s biological mother, but had a change of heart. The court found that the mother was within her rights to do so and to hold otherwise would be in opposite of public policy. The court made its decision with the principle that maintaining parental rights to their children is paramount.
The current bill has certain requirements. Under the bill, the gestational carrier, who must be at least 21 years old, must “undergo a pre-embryo transfer, attempt to carry and give birth to the child, and surrender the child to the intended parent immediately upon the birth of the child.” The designated parent or parents must agree to become the legal parent or parents of the child immediately after birth. Furthermore, the contract would allow the gestational carrier to choose her own medical care for purposes of her pregnancy, delivery and postpartum health and reimburse her for any reasonable expenses in connection with her carrying the child (costs may include hospital bills, counseling and living expenses during the period when she is carrying the fetus).
The passing of such legislation marks an interesting time in the political climate in New Jersey. Former Governor Christie vetoed the bill twice, citing that there was not enough research to support the possible consequences that could arise from passing the bill. Governor Phil Murphy may have a warmer recreption to the bill.