By Michael Booth
New Jersey Law Journal
May 17, 2012

A New Jersey Senate committee on Thursday recommended passage of legislation legalizing a form of contract by which a "gestational carrier" agrees to carry and bear a child while ceding parental rights to those who hired her.

The Gestational Carrier Agreement Act, S-1599, won the approval of the Senate Health, Human Services and Senior Citizens Committee. The Assembly Human Services Committee passed an identical version, A-2646, in March. The bills are cleared for floor votes in each house.

Unlike traditional surrogacy arrangements, where a woman is artificially inseminated with the semen of the intended father and gives birth to a child, the gestational carrier contemplated by the bill does not use her own egg and so is not genetically related to the child.

If enacted, the bill would take effect immediately and apply to any gestational carrier agreements entered into on or after the date of enactment.

The legislation requires a gestational carrier to be at least 21 years old, have previously given birth to at least one child, have completed medical and psychological evaluations and have retained an attorney independent of the intended parent, though the latter could pay that attorney's fees if so desired.

Intended parents would have to complete a psychological evaluation and hire an attorney to advise them about the terms and potential legal consequences of entering into the agreement.

Single people, as well as those who are married or in a civil union or domestic partnership, could enter into gestational carrier agreements as intended parents or as gestational carriers.

Among the bill's other requirements:

•All interested parties ­ including the gestational carrier's spouse or partner ­ and both intended parents ­ if a couple is involved ­ must sign the agreement.

• Intended parents would be required to acknowledge that they are financially responsible for the child.

• The gestational carrier must agree to undergo pre-embryo transfer, must attempt to carry and give birth to the child and must surrender custody of the child to the intended parent immediately after delivery.

• The agreement must state expressly the gestational carrier's right to have medical care for the pregnancy, labor, delivery and postpartum care provided by a physician, advanced practice nurse or certified nurse midwife of her choice after so notifying the intended parents.

• The agreement may state that the intended parents undertake to pay the gestational carrier's reasonable expenses in connection with the arrangement.

The chief sponsor of the Senate version, committee Chairman Joseph Vitale, D-Middlesex, said it has been in the works for at least a year.

Melissa Brisman, an attorney and surrogacy specialist in Montvale, testified that the legislation is necessary to regulate an already on-going industry. She estimated that she has handled at least 1,500 such agreements, noting, "All of my clients have to go outside of the state because the agreements are unenforceable in New Jersey."

Had the act already been in place, it would have had an impact on a case before the state Supreme Court, Matter of the Parentage of a Child by T.J.S. and A.L.S., A-130-10, where an infertile wife seeks to be recognized as the legal mother of her husband's biological child born to a surrogate gestational carrier from a donated egg.

The case raises equal protection issues. The Appellate Division ruled last year that the N.J. Parentage Act, N.J.S.A. 9:17-38 to -59, confers automatic parental rights to a woman only as to a child who has her DNA or whom she carried during gestation.

In this case, a surrogate carried the child under an agreement with T.J.S., known as Tom, and his wife, A.L.S., known as Amy. The child in this case was conceived through in vitro fertilization using sperm from T.J.S. and an egg from an anonymous donor.

Before the child was born, the couple obtained from Camden County Superior Court Judge Charles Dortch an order directing that both be named as parents on the birth certificate. The baby, a boy, was born July 7, 2009, and the surrogate surrendered her rights three days later, as soon as the law allowed.

But the state Bureau of Vital Statistics got Dortch to vacate his order on the basis that the act did not allow A.L.S. to be named as the mother, and said she could only be named the mother after adopting the child as a stepparent.

The Appellate Division affirmed, saying the Parentage Act's gender-based distinctions had a rational basis and were grounded in "actual reproductive and biological differences" that in the case of an infertile wife, necessitated "the introduction of a birth mother whom the law cloaks with superior protection."

The couple's attorney also testified in favor of the bill. "We're operating under laws that are now over 25 years old," said Donald Cofsky, of Haddonfield's Cofsky & Zeidman. "Medicine has moved on. Technology has moved on. And yet our laws have languished."Only one speaker testified against the bill. John Tomicki, executive director of the League of American Families, a conservative religious group, said the bill does not bar couples or gestational carriers from engaging in "selective termination" of pregnancies. "We're going beyond a brave new world here," he said.

Republican senators Dawn Marie Addiego of Burlington County and Samuel Thompson of Middlesex County abstained from Thursday's 7-0 vote.