January 28, 2015

More than two years after Republican New Jersey Gov. Chris Christie vetoed similar legislation, Democratic legislators are once again pushing a bill that would permit legally binding gestational carrier agreements.

In gestational carrier agreements, a woman agrees to carry the fertilized egg of another woman through pregnancy. According to the bill recommended for passage on Jan. 26 by the Senate Health, Human Services and Senior Citizens Committee, the surrogate mother would be required to immediately forfeit all maternity rights.

 The bill, S866, would require that the agreement clearly state that the gestational carrier would agree to undergo pre-embryo transfer, attempt to carry and give birth to the child and to surrender custody of the child to the intended parent immediately upon the birth of the child.

The contract would state that the intended parent agrees to become the legal parent of the child immediately after the birth and that the child’s birth certificate would name the intended parent as the sole legal parent of the child.

One of the chief sponsors, Committee Chairman Joseph Vitale, D-Middlesex, said the bill, called the New Jersey Gestational Carrier Act, would become a model for the nation.

“For men and women that struggle to get pregnant, gestational carriers can be a path to the family and children they have always dreamed of,” Vitale said in a statement after the committee passed the bill in a 5-0-2 vote. “By providing a framework for gestational carrier agreements to be written, we can protect all parties involved in these contracts—from the intended parents, to the women carrying the baby to, most importantly, the children born from these agreements.”

The other chief sponsor is Sen. Loretta Weinberg, D-Bergen.

Two Republican senators present at the hearing—Dawn Marie Addiego of Burlington County and Robert Singer of Ocean County—abstained.

The Legislature passed a similar bill in 2012, also sponsored by Vitale and Weinberg, that passed both houses with the minimum number of votes necessary.

Christie vetoed the bill, saying not enough research had been done to study the possible ramifications.

“Permitting adults to contract with others regarding a child in such a manner unquestionably raises serious and significant issues,” Christie said in his veto statement. “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 said.

 At the committee hearing, Vitale said he was bringing the bill back again because he and Weinberg said they considered it to be one addressing an issue of public importance.

   Under the bill, any agreement would allow for the gestational carrier to choose her own medical care for the pregnancy, labor, delivery and postpartum care. Because the agreement would not be considered an adoption, a surrender of custody or a termination of parental rights, it would not be in conflict with New Jersey’s adoption laws.

Also, the bill would allow for the intended parent to reimburse the gestational carrier’s reasonable expenses in connection with carrying the child. This would include reimbursement for medical, hospital, counseling and living expenses during the pregnancy and post-partum recovery.

The intended parents would be responsible for paying the gestational carrier’s counsel fees but the gestational carrier would choose her own attorney.

The bill would require a gestational carrier to be at least 21 years old and already have had a child or children of her own.

New Jersey has a checkered history with 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 sired a child through an anonymous egg donor, which was carried by an unrelated surrogate.

Testimony at the Senate committee’s Jan. 26 hearing was brief because of the weather.

Harold Cassidy, the attorney who represented the surrogate mother in Baby M, urged the committee members to vote down the bill.

Legislation that would codify the practice of using contracts in surrogacy cases would result in the “exploitation of women,” said Cassidy, who runs a firm in Shrewsbury, N.J. For lawmakers to approve the bill, he said, they would have to agree to the creation of “a breeding class of women.”

Cassidy noted that in 1989, the New Jersey Bioethics Commission came out strongly opposed to legalizing gestational carrier contracts.

Donald Cofsky, the lawyer for the intended parents in T.J.S., urged passage of the bill.

“Gestational agreements are done all the time,” said Cofsky, of Cofsky & Zeidman in Haddonfield, N.J. “This would create certainty for all of the parties involved.”

Michael Drewniak, a spokesman for Christie, said the administration would have no comment on the latest reincarnation of the legislation.

Vitale said 12 states—Arkansas, Delaware, Florida, Illinois, New Hampshire, Nevada, Tennessee, Texas, Utah, Virginia, Washington and Wisconsin—have enacted measures legalizing gestational carrier contracts in some form.

An identical New Jersey bill, A2648, sponsored by Assemblywomen Valerie Vainieri Huttle, D-Bergen, and Annette Quijano, D-Union, is pending before the Assembly Human Services Committee.

If you are seeking advice regarding a family law matter, call today to speak with a NJ Family Attorney calling 800-709-1131.