Surrogacy is an increasingly popular path to parenthood for many individuals and couples who are unable to conceive or carry a pregnancy. For those considering this journey in New Jersey, understanding the state’s surrogacy laws is critical to ensuring a smooth and legally sound process. Fortunately, New Jersey is among the most surrogacy-friendly states in the U.S., thanks to the enactment of the New Jersey Gestational Carrier Agreement Act (NJGCAA) in 2018.
This article provides a comprehensive overview of surrogacy in New Jersey, outlining key legal provisions, eligibility criteria, contractual requirements, and important considerations for intended parents.
The Legal Framework: The New Jersey Gestational Carrier Agreement Act
Before 2018, New Jersey had a restrictive stance on surrogacy, notably following the famous “Baby M” case in 1988. However, the tide turned with the NJGCAA, which legalized enforceable gestational surrogacy contracts and clarified the rights of all parties involved. This law provides a solid legal framework to protect both the intended parents and the gestational carrier (surrogate).
Who Can Be an Intended Parent?
Under New Jersey law, intended parents do not have to be married or heterosexual. The law is inclusive and progressive:
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Single individuals, married couples, unmarried partners, and LGBTQ+ individuals or couples are all eligible.
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There is no residency requirement, although either the surrogate or at least one intended parent must reside in New Jersey, or the birth must occur within the state for the law to apply.
Before proceeding, intended parents must:
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Undergo a psychological evaluation.
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Retain independent legal counsel separate from the surrogate’s attorney.
This ensures that intended parents are mentally, emotionally, and legally prepared for the journey ahead.
Requirements for Gestational Carriers (Surrogates)
Not just anyone can become a gestational carrier under New Jersey law. The surrogate must meet specific criteria:
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Be at least 21 years old.
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Have previously given birth to at least one child.
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Complete a medical evaluation confirming her ability to carry a pregnancy.
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Undergo psychological counseling.
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Have independent legal representation to fully understand the contract and her rights.
These requirements are designed to ensure that the surrogate is physically and emotionally ready for the responsibilities involved.
The Gestational Carrier Agreement
The contract between the intended parents and the surrogate is at the heart of the process. To be enforceable under the NJGCAA, the agreement must be:
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In writing and signed prior to any medical procedures.
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Voluntary, with all parties represented by independent legal counsel.
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Include provisions stating that:
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The surrogate agrees to undergo embryo transfer and carry the child.
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She will relinquish parental rights immediately upon birth.
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The intended parents accept full parental responsibilities.
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Additionally, the surrogate has the right to:
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Choose her own medical provider.
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Make independent decisions regarding her health, including decisions during labor and delivery.
Parental Rights and Pre-Birth Orders
One of the greatest legal advantages of surrogacy in New Jersey is the availability of pre-birth orders. These court-issued documents establish the intended parents as the legal parents before the baby is born.
This allows the child’s birth certificate to be issued in the names of the intended parents, streamlining hospital procedures and removing the need for post-birth adoption.
Compensation and Expenses
While commercial surrogacy (i.e., paying a surrogate a profit for her services) is not allowed, the law permits reasonable compensation for the surrogate’s expenses, including:
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Medical and hospital expenses
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Legal fees
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Mental health counseling
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Insurance costs
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Pregnancy-related living expenses (e.g., maternity clothes, travel for appointments)
All financial terms must be clearly outlined in the gestational carrier agreement to avoid disputes.
A Real-Life Example
Imagine a same-sex married couple living in New York who match with a gestational surrogate in New Jersey. They each retain legal counsel and execute a detailed gestational carrier agreement. Once the surrogate passes medical and psychological evaluations, the couple proceeds with IVF using one partner’s sperm and a donor egg. Before the birth, they obtain a pre-birth order, ensuring their names will be on the birth certificate. When their baby is born, they leave the hospital as legal parents — with no additional legal hurdles.
Final Thoughts
New Jersey stands out as a surrogacy-friendly state, offering clear legal protections and inclusive access for a diverse range of intended parents. The New Jersey Gestational Carrier Agreement Act ensures that all parties — from hopeful parents to selfless surrogates — are treated fairly and respectfully.
If you’re considering surrogacy in New Jersey, it’s essential to:
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Partner with a reputable fertility clinic.
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Hire an experienced surrogacy attorney.
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Work with a licensed surrogacy agency, if needed.
With the right preparation and legal support, surrogacy in New Jersey can be a safe, ethical, and life-changing journey toward building a family.
