Family Law

New Jersey Attorneys, It's Your Turn To Celebrate And Consider Practicing Happy Law

If you have always dreamed of practicing in the assisted reproductive technology law area, you can now lawfully assist families with gestational carrier contracts!

By  
on

We have seen a major trend this past year. U.S. jurisdictions that once outlawed surrogacy arrangements — generally out of an unfounded fear of the exploitation of women or the sale of children — have instead listened to experts and reconsidered their policies. #HappinessIsTrending

Last Wednesday, New Jersey was the latest state to join the new wave. Governor Phil Murphy signed into law S482, titled the New Jersey Gestational Carrier Agreement Act, which reverses the state’s previous anti-surrogacy stance, and enacts a supportive legislative structure for gestational surrogacy arrangements. First, sports betting and now surrogacy. Out with the Old Jersey, in with the New!

What Does The New Law Say? The new law is specific to gestational carrier (or “gestational surrogacy”) arrangements. That means it applies only to those arrangements where the surrogate is not genetically related to the child she is carrying for another person or couple. This is in contrast to the infamous 1988 Baby M Case, which made national news, and which was the catalyst for the legal backlash in New Jersey.

In the Baby M case, a woman agreed to act as a surrogate and carry a child for a couple, but the child was genetically related to the surrogate. In other words, the intended father’s sperm was used to inseminate the surrogate, using the surrogate’s own eggs. When the genetically related surrogate changed her mind (and kidnapped little Baby M!), there was an outcry over surrogacy in general, followed by case law that compensated surrogacy agreements are unenforceable in the state.

Of course, medical and technological advances in fertility over the last 30 years have made traditional surrogacy nearly obsolete. Instead, gestational surrogacy is the popular and preferred route. And now, it’s legislatively supported in New Jersey.

Interestingly, some other jurisdictions in their new surrogacy-supporting statutes also allow for “traditional” or “genetic” surrogacy. Despite the rarity of the practice, both Washington State and Washington, D.C. recently passed laws that permit it. However, those statutes often treat traditional surrogacy somewhat differently, by providing for additional safeguards in the arrangements, such as the genetic surrogate being able to withdraw consent to give up the baby before a certain point of the baby’s life, after the birth. So that’s another good reason to avoid traditional surrogacy!

Going back to the new New Jersey law, which only applies to gestational surrogacy, here are some other highlights:

Sponsored

  • You Get An Attorney! You Get An Attorney! Everyone Gets An Attorney! Both the gestational carrier and intended parents must have independent legal counsel. (Yay! Attorney employment required by law! Oh yeah… and the parties having a better legal understanding and protection. That’s good, too, obviously.)
  • Psych Screening For All. Also, both the gestational carrier and the intended parents must undergo psychological evaluation approving their suitability. (Heads up to all the New Jersey mental-health professionals out there looking to make sure that the people engaged in surrogacy arrangements can handle the stress that sometimes comes with the process.)
  • Payment Permitted. The statute specifically permits payment to the gestational carrier of “reasonable expenses,” which is defined as the “reasonable living expenses of the gestational carrier during her pregnancy, including payments for reasonable food, clothing, medical expenses, shelter, and … counsel services.” That’s a lot of use of the word “reasonable.” It will be interesting to see how this interpreted. As the market rate for gestational surrogate compensation creeps (or leaps — given growing demand) above about $40,000, we will see what, if anything, is not considered “reasonable.”
  • Inclusive Parenthood. The statute also provides for inclusive language on who can be an intended parent. It includes single persons, married couples, unmarried couples, and those married or unmarried to a person of the same sex. This is in contrast to say, Russia or Israel, where surrogacy is only permitted for opposite-sex couples.

What Does This All Mean? I spoke with Debra E. Guston, Esq., a New Jersey assisted reproductive technology law attorney and a driving force behind the new law. Guston explained that this legislation is incredibly exciting for anyone in a family-building practice — lawyers, doctors, counselors, as well as their clients and patients. “There is so much emotion and grief in infertility. Allowing hopeful parents in New Jersey to move forward in their home state and be protected is incredibly meaningful.”

I asked Guston about the process of getting the new law enacted. She explained that it took over five-and-a-half years to get to this point, with the bill passing on multiple occasions, only to be vetoed by New Jersey’s former Governor, and its favorite closed-beachgoer, Chris Christie. Although Guston felt confident it was time and would happen, Guston described checking the state website last Wednesday and feeling elation that the bill had been signed.

I’m A New Jersey Attorney. What Does This Mean For Me? Good things! If you have always dreamed of practicing in the assisted reproductive technology law area, you can now lawfully assist families with gestational carrier contracts and pre-birth parentage orders! Here’s to using that law degree to help dreams come true! Of course, while the new statute is fairly straightforward, quality representation in a successful surrogacy agreement is much more complicated and requires a significant level of expertise. Guston will be moderating a panel for New Jersey ICLE on August 1 entitled The New Jersey Gestational Carrier Act 2018: The Future of Family Formation. They will address the many facets of the new law and surrogacy practice in New Jersey — a great place to learn more!

Sponsored

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

Topics

, , , ,