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New Jersey Sen. Joesph Vitale (D-Woodbridge)

New Jersey lawmakers are continuing to move forward with a renewed version of twice-vetoed legislationthat would permit legally binding gestational carrier agreements.

The Senate Budget Appropriations Committee on Monday recommended passage of S-482 in a 10-2 vote. That vote comes after the Senate Heath, Human Services and Senior Citizens Committee approved it 6-2 in February.

Also last month, an identical bill, A-1704, passed the Assembly Women and Children’s Committee unanimously.

The bills are now before the full Senate and Assembly, though no votes have been scheduled.

“For men 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,” said the key sponsor, Sen. Joseph Vitale, D-Middlesex, in a statement following the latest committee vote. “Gestational carrier agreements are imperative to protect the interests of all parties involved, including the carrier, the intended parents, and the child. This bill will provide the legal framework for the agreements.”

Gov. Chris Christie, a Republican, vetoed the legislation in 2012 and 2015, when both majority-Democratic legislative chambers approved it. Last year the measure once again passed the Senate, though the Assembly didn’t take action before the close of the legislative session.

Democratic Gov. Philip Murphy has not indicated whether he supports the proposal.

Under such a contract, a woman agrees to carry the fertilized egg of another woman through pregnancy. The bill requires the surrogate mother to forfeit all maternity rights.

In his 2012 veto, Christie said not enough research had been done to study the possible ramifications. “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,” Christie said in a veto statement at the time. In his 2015 veto message, he said the sponsors had done nothing to allay his concerns since the prior attempt.

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

Under the contract, the intended parent would have to agree to become the legal parent of the child immediately after the birth. The contract also would mandate that the child’s birth certificate name the intended parent as the sole legal parent of the child.

The measure also would require that any agreement must 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, the bill’s authors contend. Also, the bill would allow for the intended parent to reimburse the gestational carrier’s reasonable expenses in connection with carrying the child, including reimbursement for medical, hospital, counseling and living expenses during the pregnancy and postpartum recovery.

The intended parents would be responsible for paying the gestational carrier’s counsel fees, but the gestational carrier would be able to choose the attorney. A gestational carrier would have to be at least 21 years old and have already had a child or children of her own.

The legality of such contracts has been a historically contentious issue in New Jersey.

Surrogate pregnancy contracts made national headlines in 1988 when the state Supreme Court issued its watershed 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 fathered a child through an anonymous egg donor, which was carried by an unrelated surrogate.

According to Vitale, 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, with the District of Columbia following suit in April 2017.

Michael Booth

Trenton Bureau Chief New Jersey Law Journal American Lawyer Media mbooth@alm.com Twitter: @mboothnjlj

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