Traditional surrogacy contracts are invalid in New Jersey. That principle was elaborated decades ago in in the New Jersey Supreme Court’s decision, In re Baby M, 109 N.J. 396 (1988) that found invalid a contract between the Sterns and the surrogate, Mary Beth Whitehead. I revisited this case, which I distinctly remember dissecting in law school in 1996. Reading it again, it is surprising to me the level of abhorrence that is expressed in the language used by Justice Wilentz.
One of the major themes from a philosophical point of view, when it comes to Family Law generally, is the idea of whether laws relating to the family can be treated as pure contract matters (can I create a contract to sign away my parental rights?), or does the special nature of families require courts to look at status relationships instead (mother/father/children). This decision is a perfect microcosm of the debate.
In re Baby M. invalidated a surrogacy contract that the Sterns created with Ms. Whitehead. Mr. Stern was the biological father, Ms. Whitehead was the biological mother, using in vitro fertilization. Mrs. Stern was not named as a party to the contract to avoid other New Jersey statutory rules. Mr. Whitehead agreed to turn over the baby to the Sterns, allow Mrs. Stern to adopt, and voluntarily terminate her own maternal rights to the child. Needless to say, events did not proceed according to plan. After Ms. Whitehead fled the jurisdiction with the child, the Sterns sought to enforce the contract. The New Jersey Supreme Court found that the protocol used by the parties and the agency to facilitate this arrangement, was the equivalent of baby selling, that was not mitigated by the fact that one of the purchasers happened to be the child’s biological father.
In the interim, the issue of surrogacy has been revisited in New Jersey. A gestational carrier act that was supported by the NJ legislature was not signed into law when Governor Christie refused to endorse it in 2015. Since then, the New Jersey Gestational Carriers Act (S-482; A – 1704) is back, and is awaiting final legislative approval and Governor Phil Murphy’s signature.
What makes a gestational carrier act different than the surrogacy situation is that the child conceived is not the biological child of the woman who carries it. Typically the embryo is the product of the partners who are contracting with the gestational carrier. The woman carrying this child must be over 21, must have already have had at least one child of her own, and must obtain the written consent of her partner or spouse. (I have mixed feelings on that one, and not just because of pure contract principles.) It will be fascinating to see whether this bill gets the Governor’s approval this time, and as it has been recently endorsed by the New Jersey State Bar Association, I am looking forward to seeing this option become a method that allows couples in New Jersey an opportunity to become parents of their own biological children.
If you have an adoption or other family matter, please consult the Law Offices of Sadaf Trimarchi for a free consultation.
Governor Murphy signed this bill into law on May 31, 2018. As written, this option will now allow surrogacy contracts between parties in limited situations and thus offer another, albeit costly, option for those couples wanting to pursue biological parenthood. See, further for more info.