International Fertility Law Group Blog: New Jersey Ends 30-Year Surrogacy Ban

New Jersey Surrogacy Law Ends 30-Year Ban

New Jersey Governor Phil Murphy just signed a law legalizing gestational carrier agreements, effectively lifting a 30-year ban on surrogacy in the state. Passage of S482, the “New Jersey Gestational Carrier Agreement Act,” is a milestone for reproductive freedom in the state that was home to the notorious “Baby M” case that created a societal and legal backlash against the then-new practice of surrogacy.

I wrote a few months ago about recent actions to legalize gestational surrogacy agreements in several states that outlawed them in reaction to the tragic case decades ago.

Nearly 30 years ago, in reaction to the notorious “Baby M” case, several states, including New Jersey, New York, Michigan and Washington, DC, banned paid surrogacy, declaring surrogacy agreements invalid. In April, Washington, DC, overturned its surrogacy ban, in effect since 1993. And in December, the New York Task Force on Life and the Law issued a report recommending that New York’s ban be lifted. Will New Jersey, where the Supreme Court declared the Baby M surrogacy agreement, and all surrogacy agreements, invalid in 1988, and Michigan, which became the first state to ban “commercial” surrogacy agreements the following year, be next?

As we wrote, in 1986, surrogacy was controversial. The technology was relatively new; the first baby had been born via in vitro fertilization only 10 years earlier. Data on the benefits or dangers of surrogacy was scant. Critics raised ethical concerns about potential exploitation of women and “baby selling.” Many lawmakers and jurists felt technological advances were outpacing the public interest.

As assisted reproductive technology and best practices have continued to improve, “traditional” surrogacy, in which the surrogate gives birth to a baby conceived using her own eggs, and thus is biologically related to the child—the type of surrogacy in the Baby M case—has become rare. Today, most surrogates are “gestational carriers”: Both egg and sperm are provided either by an intended parent or a (usually anonymous) donor, and there is no genetic relationship between surrogate and baby. A legally binding gestational carrier agreement, which spells out the rights obligations of the surrogate and intended parents, is essential for the protection of all parties involved.

The legislative push to end New Jersey’s surrogacy ban began six years ago, as reported by the New Jersey Law Journal, after the state Supreme Court, in a 3-3 split vote, failed to overturn a lower court ruling that forced a married intended mother to adopt the child fathered by her husband and carried by a gestational surrogate.

The gestational carrier law was drafted about six years ago, after the state Health Department told a Union County couple the wife's name would not be listed on her son's birth certificate because she had no genetic or biological tie to the infant.

The baby was conceived using an anonymous donor egg and her husband's sperm. She was forced to adopt the baby, despite a surrogacy contract recognized by a judge.

New Jersey’s legislature passed bills lifting the ban on surrogacy agreements in 2012 and 2015; both times then-Governor Chris Christie vetoed them, citing concerns about “the profound change in the traditional beginnings of a family.”

Stephanie Hagan, former chairwoman of the New Jersey State Bar Association’s Family Law Section, told the New Jersey Law Journal that  passage of S482 was a “huge victory” for same-sex couples and couples experiencing infertility.

“I believe this legislation protects the gestational carrier and really provides a road map for what needs to be done,” Hagan said.

New Jersey becomes the 12th state, along with Washington, D.C., with similar laws regulating surrogacy agreements.

The new law mirrors many long-established best practices for surrogacy agreements: a gestational carrier must be at least 21 years old, must have given birth to at least one child, and must undergo medical and psychological evaluations. The surrogate also is required to retain an independent attorney to represent her interests in the agreement. The surrogate may choose her own medical care for the pregnancy, labor, delivery and postpartum care. Intended parents also are required to undergo a psychological evaluation and are permitted to pay for legal, medical and living expenses incurred during the pregnancy. Intended parents will be listed as the sole legal parents on the baby’s birth certificate.

The new law will be a welcome “roadmap” for New Jersey intended parents, ART providers and attorneys, providing legislative guidance and legal certainty lacking in many jurisdictions without clear laws governing assisted reproductive technology. Passage of this progressive, humane law today also signals that Americans are ready to move past the Baby M backlash and make the potential for parenthood more accessible for all who want and deserve it.

 

 

Rich Vaughn
Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI HUGES
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim
KIM DEVEREAUX
Paralegal

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, thoughtful and compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law. He is immediate past chair of the American Bar Association ART Committee, which develops model legislation governing assisted reproductive services, and is a popular presenter to law students, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Tania Steele
TANIA STEELE
Legal Assistant

Tania Steele joined IFLG as a legal assistant in early 2016 and has since been immersed in the complexities of assisted reproductive technology law. Tania received her Bachelor of Arts degree at Chapman University in Orange, California, and a graduate degree from University of Leicester in England, where she pursued an interest in art. In 2013, she accepted a volunteer position at Legal Aid Society of Orange County, where she helped with the intake of new clients and was inspired to obtain a paralegal certificate from Fullerton College. As an undergraduate, Tania lived in Italy and studied the Italian language. She is fluent in English, Spanish and Italian and enjoys assisting as a translator for many of IFLG’s international clients. Outside of the office, Tania enjoys concerts, films, reading and travel.

Linda Garrett
LINDA GARRETT
Legal Assistant

Linda Garrett graduated in 2010 from California State Polytechnic University, Pomona, with a major in Sociology. Shortly after, she enrolled in a paralegal course at West Los Angeles College, where she fell in love with the field. In 2017, she earned her paralegal degree and joined International Fertility Law Group as a Legal Assistant. In her free time, Linda enjoys outdoor adventures and spending time with her nieces and nephews.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.