The New Jersey Legislature is advancing a statute that would enable individuals to enter into enforceable agreements for surrogate parenthood via gestational carriers. The New Jersey Gestational Carrier Agreement Act (S-482, A-1704) awaits only final legislative approval and the signature of Gov. Phil Murphy to become law.
In gestational surrogacy, a woman agrees to be implanted with a fertilized egg that is not hers, and to carry the fetus to term. The fetus is conceived in vitro, using egg and sperm from donors who are unrelated to the woman. The act requires such agreements to be in writing; additionally, the carrier must be over age 21 and have already borne at least one child of her own; her spouse or partner must consent in writing, and the intended parents must provide financial and medical support to the woman throughout her pregnancy and delivery. All parties must also undergo psychological evaluation and be represented by independent counsel. The woman carrying the fetus must surrender custody of the baby to the intended parents immediately upon birth. The act specifies that during the pregnancy, the intended parents must initiate a proceeding for an order of parentage. After the birth, the state will issue a birth certificate listing only the intended parents as the legal parents. Records relating to the agreement will remain confidential, but the child may petition for access when he or she turns 18.
Gestational surrogacy is not a common form of assisted reproduction. According to the Centers for Disease Control, gestational surrogacy represents only 2 percent of all assisted-reproduction arrangements. More common is traditional surrogacy, in which the pregnant woman is the biological mother of the child. The complications inhering in traditional surrogacy are well known from In the Matter of Baby M, 109 N.J. 396 (1988). In that case, the surrogate mother, who had initially agreed to surrender custody to the biological father and his wife, changed her mind after the child’s birth. In the ensuing litigation, the Supreme Court held that the agreement between the father and the surrogate mother was unenforceable as against public policy, inasmuch as New Jersey law favors the biological parents having custody of their children. The Baby M case is still good law, and traditional surrogacy agreements are unenforceable in New Jersey.
In contrast, gestational surrogacy arrangements do not present the problem of traditional surrogacy, as there is no genetic connection between the woman and the fetus she carries. Such arrangements are not, however, without emotional or medical risk. A woman going through pregnancy experiences a variety of emotions and physiological changes, the effects of which may pose complications for both her and the intended parents. For example, if the fetus is diagnosed with a deformity or a handicap, the intended parents may pressure the woman to abort the pregnancy; she, in turn, may oppose. In addition, gestational surrogacy makes it possible for someone desiring a child to select egg and sperm donors with particular traits; in other words, the creation of “designer babies.” These and other issues may arise once the act becomes law.
Despite the potential for complications, we favor its adoption. The act provides clear guidance to the public and limits the risk that needy women might be exploited for their reproductive capacity. We commend the Legislature for formulating a legal framework for this cutting-edge reproductive technology.