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  • Writer's pictureLeslie A. Farber

Making it Easier for Infertile and Same-Sex Couples to have Families

same sex couple with baby, gay men with baby

When Gov. Phil Murphy signed the New Jersey Gestational Carrier Agreement Act into law on May 30, 2018, it opened the door for more intended parents struggling with #infertility and same-sex couples to fulfill their dreams of having families with the help of gestational carriers.  The bill, which had twice been passed but vetoed under the prior administration, became effective immediately. 

The Act permits parties to enter into an agreement to contract for one party to become pregnant for an intended parent or parents through assisted reproductive technology.  It specifically provides for the #gestationalcarrier to waive any and all rights to the intended child, and for the intended parent or parents to assume all responsibility and secure legal parenting rights during pregnancy that become effective at birth.

The law applies to any would-be parent, regardless of whether they are married or single, gay or straight.  Intended parents who are married, in a civil union or registered domestic partnership, must both be parties to the agreement. 

According to the new legislation, a woman who wishes to be a gestational carrier must be at least 21 years old, have given birth to at least one child, completed medical and psychological evaluations and retained an attorney independent of the intended parent or parents.  The intended parents must also have undergone a psychological exam.

The agreement signed by the two parties allows the gestational carrier to choose her own medical care for the pregnancy, labor, delivery and postpartum care.  The Act allows the intended parents to pay for the gestational carrier’s expenses, which includes medical and hospital expenses, reasonable attorney’s fees, reasonable living expenses including food, clothing, shelter, and counseling services during the pregnancy as well as the period of postpartum recovery.

The new gestational carrier law was drafted about six years ago, after the state Health Department told a Union County couple the wife's name would not be listed on her son's birth certificate because she had no genetic or biological tie to the infant.  The baby was conceived using an anonymous donor egg and her husband's sperm, and the woman was forced to adopt the baby despite a surrogacy contract recognized by a judge.

With the passage of the bill into law, New Jersey joins Washington, D.C., and 11 other states with similar laws: Arkansas, Delaware, Florida, Illinois, Nevada, New Hampshire, Tennessee, Texas, Utah, Virginia, Washington.  While many states do not allow or recognize such surrogacy contracts, others are rethinking old policies and looking at ways to modernize family formation laws.

Surrogacy is a viable option for members of the LGBT community who are eager to expand their families.  As perceptions of family become more inclusive, lesbian and gay surrogacy is becoming increasingly common.  Gay rights advocates are seeking to remove barriers to building families as support for marriage equality gains strength.  Legislation such as New Jersey’s Gestational Carrier Agreement Act will help make the legal #surrogacy process less complicated for all intended parents, including same-sex couples.

Under New Jersey’s new law, the gestational carrier and the intended parents are required to be represented by counsel.  If you have any questions about this law, you can call our office at 973-509-8500 x213 or

The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.

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