For the third time, the New Jersey legislature passed a bill to legalize gestational surrogacy. Two previous times, in 2012 and 2015, bills approved by the legislature were vetoed by then-Governor Chris Christie. Both times, Christie expressed concern that the legislature had not sufficiently considered or responded to the potential harms of surrogacy. But Christie was replaced by Democrat Phil Murphy in 2016, and Murphy signed the most recent bill into law. The bill had been approved by the legislature along party lines. Surrogacy is not obviously a partisan issue—many of its critics are liberal feminists—but Republicans in New Jersey all voted against the bill or abstained.
New Jersey has played a starring role in the still-evolving battle of surrogacy. Its 1989 ruling in Baby M, in which the state’s highest court held surrogacy contracts invalid as against public policy, was the first opinion on the matter and sparked a national debate about the legality of surrogacy. From that starting point, states have staked out positions across a broad legal spectrum. Several states prohibit surrogacy completely. Some, like New York, not only refuse to enforce surrogacy contracts, but criminalize the behavior. Some prohibit paid surrogacy but permit “altruistic” arrangements. Some simply permit it, with no identifiable limitations. And a growing number have passed legislation to permit, but regulate, surrogacy. With this recent bill, New Jersey has gone from refusing to enforce surrogacy contracts to permitting them as long as certain requirements are met.
The Development of Surrogacy Law
The Old Testament tells of Abraham, whose wife’s handmaid bore a child for him. Jealousy and conflict ensued. This situation involved what we would today call “traditional surrogacy,” where one woman conceives a child with her own egg and carries that child with the intent that someone else will raise it. Today, virtually all surrogacy arrangements are “gestational,” meaning that the woman who carries the baby does not provide the egg for conception. Rather, the egg of either the intended mother or a donor is fertilized outside the womb, using in vitro fertilization techniques, and then implanted in the surrogate’s womb.
Surrogacy is not inherently a legal matter. It becomes one because the parties, perhaps unlike Abraham, want to use contract law to guarantee that each will follow through on the commitment—the intended parents to pay, and the surrogate to carry the child and, most importantly, relinquish the child soon after birth. At core, a surrogacy agreement is a contract that provides special rules of parentage. Although a woman who gives birth to a child is usually presumed to be that child’s legal mother, a valid surrogacy agreement successfully rebuts that presumption. That same valid agreement also rebuts the usual “marital presumption” that the husband of a woman who gives birth is the child’s legal father. And this contract replaces those traditionally presumed to be the child’s parents with the child’s intended parents—those who commissioned the surrogacy with the intent that they would raise any resulting child. Intent, in other words, becomes the dispositive factor in parentage rather than biology or marriage.
Baby M and New Jersey’s Role in the Development of Surrogacy Law
Although traditional surrogacy may have been used earlier, the law of surrogacy dates only to the late 1980s, when the controversial Baby M case catapulted the issue into the limelight. There, a traditional surrogate, one who provided both the egg and womb, refused to honor the agreement with respect to parentage. She led the intended parents and their lawyers on a chase that led to competing court actions in multiple states and a high-profile drama.
In the end, the New Jersey Supreme Court ruled, in 1988, that the surrogacy contract was invalid because it violated the state’s public policy. The court in that case was deciding a question of first impression; there were no prior cases, and the legislature had never spoken on the issue. Ruling in favor of Mary Beth Whitehead, the New Jersey Supreme Court concluded broadly that surrogacy contracts are “illegal and unenforceable.” The court saw danger for everyone involved if the contracts were to be upheld:
The long-term effects of surrogacy contracts are not known, but feared—the impact on the child who learns her life was bought, that she is the offspring of someone who gave birth to her only to obtain money; the impact on the natural mother as the full weight of her isolation is felt along with the full reality of the sale of her body and her child; the impact on the natural father and adoptive mother once they realize the consequences of their conduct.
Baby M was the subject of tremendous, and contentious, public debate. As law professor Carol Sanger observed, the case “provoked philosophical debate, political organizing, and legislative action as ethicists, feminists, theologians, lawmakers, and local men and women weighed in on surrogacy’s moral, legal, and practical significance.”
The legal parents of Baby M, the court ruled, were her biological mother—the surrogate—and her biological father—the intended father. The intended mother was a legal stranger to Baby M. On remand, though, the intended/biological father was awarded full custody, based on the “best interests of the child” standard that governs family court custody proceedings, so the biological father and his wife, Baby M’s stepmother, ultimately served as Baby M’s functional parents.
Against a backdrop of the changing family and developments in reproductive technology, Baby M was the catalyst for legislation and litigation around the country, as well as commentary both for and against legalized surrogacy. As mentioned above, New York enacted a complete ban on surrogacy, just two years after the ruling in Baby M, with little opposition. But in California, the state’s highest court enforced a surrogacy agreement in 1993, in Johnson v. Calvert, holding that the intended parents were the child’s legal parents and that the gestational surrogate bore no legal relationship to the child. California eventually codified this rule, making clear the legality and permissible parameters of surrogacy, but not until more than three decades later.
In those intervening decades, many other states staked out positions as well; some opposed surrogacy, some authorized it, and some authorized it but with restrictions. The modern trend, which New Jersey has now joined, it is towards a “permit, but regulate” approach. With such an approach, the state legislature provides some certainty that parties will be held to their bargain, but only if they comply with rules designed to minimize the harm and risks that surrogacy may pose.
As other states moved toward a more permissive approach to surrogacy, however, New Jersey stuck to its guns. As discussed above, the state’s previous governor twice vetoed surrogacy bills passed by the legislature. New Jersey courts, meanwhile, were hesitant to deviate from the ruling in Baby M, even when presented with gestational rather than traditional surrogacy arrangements. In a 2009 case, A.G.R. v. D.R.H., a New Jersey court refused to enforce a gestational surrogacy agreement between two gay men, an egg donor, and a surrogate. All the parties had signed contracts, agreeing that the two men would be the legal parents of the resulting twins, and the two women would have no rights or obligations. A trial court held the contracts unenforceable, however, and ruled that the twins’ legal parents are the man who provided the sperm and the woman who carried them. Even though many of the objections raised in Baby M do not apply with equal force (or at all) to gestational surrogacy, the court followed the precedent exactly.
In 2012, the New Jersey Supreme Court had the opportunity to validate indirectly a gestational carrier agreement, but did not. In that case, In re T.J.S., the court considered whether a married woman could be presumed the legal mother of a child who was conceived with her husband’s sperm and a donor egg, and carried by another woman. This was, in effect, a surrogacy arrangement, but since New Jersey courts were unlikely to enforce such an agreement because of Baby M, the intended parents tried to make use of the marital presumption—the rule that allows a mother’s husband to be deemed the legal father of a child even if there is no biological tie—to establish a legal parent-child relationship between the intended mother and the child. This case did not involve a dispute between the intended parents and the gestational carrier; she had relinquished the child to them at birth as promised. Rather, the marital presumption was asserted as a mechanism for getting the intended mother’s name on the birth certificate without going through the adoption process. The trial court first granted the petition, but after the state health department intervened to object, the court vacated its own ruling. The appellate court affirmed, and the state’s highest court was evenly split, 3-3, which left the denial in place.
Three of the judges concluded that there was no statutory or constitutional basis for applying the marital presumption with equal force to a female spouse. (This conclusion is probably wrong, for reasons I’ve explained elsewhere, including here.) The court viewed the question as one of social policy, which the legislature is more suited to make. Three judges disagreed and would have permitted the intended mother to be recognized via the marital presumption, but they needed one additional vote to overturn the ruling below.
This case animated the legislative efforts to legalize surrogacy, which resulted in the gubernatorial vetoes in 2012 and 2015. The bill that recently became law was just picking up where those efforts left off.
The New Law in New Jersey: Senate Bill 482
The New Jersey Gestational Carrier Agreement, as the bill is titled, authorizes the enforcement of paid surrogacy agreements, but only if certain conditions are met.
Under the new law, a gestational carrier must be at least 21 years old and must have given birth at least once before. She must complete both a medical and psychological evaluation designed to determine her fitness for serving as a gestational carrier. She must have her own lawyer, who must sign an affidavit stating that a legal consultation took place. The intended parents can pay for her lawyer, as well as for all other reasonable expenses incurred in connection with the arrangement, but the lawyer must be uniquely devoted to her interests. The gestational carrier agreement must provide that the carrier has the right to choose her own medical provider for the pregnancy, labor, delivery, and postpartum care. As for the intended parents, they must undergo a psychological evaluation and retain their own attorney.
Prior to the birth, the intended parents must file a complaint for parentage, attaching the affidavits from each attorney, as well as a statement from the medical facility that all the legal requirements were followed. Upon satisfactory proof that the arrangement meets the legal requirements, the court will issue an order of parentage that can be used to direct the vital statistics office to put the intended parents’ names on the birth certificate in the first instance. It can also be used as a basis to protect the gestational carrier and her husband from liability for child support and to impose such liability on the intended parents.
This is not the most restrictive of surrogacy statutes in this country. A few states require the intended parents to be married, for example. A few others permit surrogacy only if one of the intended parents provides gametes for conception. New Jersey’s statute does not impose such social controls, but focuses instead on ensuring that the parties both enter the arrangement voluntarily, informed about the process, and ready to proceed as safely as possible.
The New Jersey approach is not novel—eleven states and the District of Columbia have passed similar bills—but given the state’s unique role in the history of surrogacy law, it is noteworthy. While some remain opposed to surrogacy arrangements, often strongly so, the push to expand parenthood to those who are socially or medically infertile is too strong. The legislative approach that permits but regulates surrogacy is a good one.