State Laws and Legislation

New Jersey Surrogacy Law

Summary: New Jersey permits only uncompensated gestational surrogacy agreements (in which the surrogate mother is not the biological contributor of the egg). The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.

Explanation: Surrogacy cases in New Jersey have created a fairly well-defined common law rule that prohibits traditional surrogacy arrangements (in which the surrogate mother is the biological contributor of the egg) and allows only uncompensated gestational surrogacy arrangements. In perhaps the most famous surrogacy case in the nation, In re Baby M, the New Jersey Supreme Court in 1988 invalidated a traditional surrogacy agreement, which provided a $10,000.00 fee to the surrogate mother. The Court barred the use of money in an adoption placement and further held that no one could contractually abandon their parental rights.

In another case in 2000, a New Jersey Superior Court addressed the rights of intended parents in an uncompensated gestational surrogacy arrangement. The intended parents sought to compel the state’s Attorney General to put their names on the birth certificate. The Court found that in gestational surrogacy arrangements, the intended parents must wait 72 hours after the birth before the surrogate can surrender custody. However, under New Jersey law, the birth certificate has to be filed within five days after the birth of the child. Thus, a two-day window exists during which intended parents can be placed on the birth certificate.

It is legal in New Jersey for same-sex couples to jointly adopt, as well as for individuals to adopt the children of their same-sex partner.

Citations: A.H.W. v. G.H.B., 772 A.2d 948 (N.J. Super. 2000); In the Matter of Adoption of Two Children by H.N.R., 666 A.2d 535 (N.J. Super. Ct. App. Div. 1995); In re Baby M, 537 A.2d 1227 (N.J. 1988).

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Updated: Tue, September 08, 2009 - 11:00:35