Gestational surrogacy is an increasingly sought-after path to parenthood for many individuals and couples facing infertility, same-sex couples, and single parents by choice. However, the legality of surrogacy varies from state to state — and New Jersey has experienced significant shifts in its legal stance over the past decade.
In this article, we break down the current legal framework of gestational surrogacy in New Jersey, highlight the recent legislative changes, and provide real-world context for intended parents and surrogates.
What Is Gestational Surrogacy?
Gestational surrogacy is a legal and medical arrangement in which a woman (the gestational carrier) agrees to carry a pregnancy for intended parents. The key feature is that the carrier is not genetically related to the child — the embryo is created via IVF using the egg and sperm from the intended parents or donors.
Historical Context: Surrogacy Was Once Illegal in New Jersey
For decades, New Jersey was one of the most restrictive states regarding surrogacy. The turning point was the infamous “Baby M” case in 1988, in which the New Jersey Supreme Court ruled that a traditional surrogacy agreement (involving the surrogate’s own egg) was unenforceable.
While the Baby M case involved traditional surrogacy, it led to a broader legal chill around all surrogacy arrangements — even gestational ones.
Major Shift: The New Jersey Gestational Carrier Agreement Act (2018)
The legal landscape changed dramatically with the passage of the Gestational Carrier Agreement Act on May 30, 2018, which took effect in January 2019. This law legalized and regulated gestational surrogacy in New Jersey for the first time.
Key Features of the 2018 Law:
✅ Enforceable contracts: Gestational carrier agreements are now legally binding under New Jersey law.
✅ No genetic link required: The law specifically applies to gestational surrogacy (not traditional surrogacy).
✅ Pre-birth parentage orders: Intended parents can obtain legal parental rights before the birth of the child.
✅ Compensation allowed: Surrogates can be compensated for reasonable expenses and services.
✅ Independent legal counsel: Both the surrogate and intended parents must have separate legal representation.
Eligibility Requirements
The Act sets forth clear eligibility criteria for both parties:
Intended Parents Must:
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Be at least 18 years old
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Have a medical need for surrogacy (infertility, medical condition, etc.)
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Undergo a mental health consultation
Gestational Carriers Must:
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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 medical and psychological evaluations
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Have independent legal counsel (paid for by the intended parents)
Real-World Example: Successful Case in 2020
In 2020, a same-sex male couple from Essex County entered into a gestational carrier agreement with a woman from Union County. Using an egg donor and one partner’s sperm, a child was conceived and a pre-birth order was issued by the Superior Court of New Jersey.
Both men were listed as the legal parents on the birth certificate, and the carrier had no parental rights. This was one of hundreds of successful surrogacy cases processed under the new law since 2019.
Surrogacy Trends in New Jersey
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According to the Society for Assisted Reproductive Technology (SART), New Jersey saw a 38% increase in gestational carrier cycles from 2019 to 2023.
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The New Jersey Division of Child Protection & Permanency reports over 1,000 pre-birth orders approved statewide since the Act took effect.
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97% of agreements filed meet statutory standards and are approved without issue, according to family law practitioners.
Comparison With Other States
| State | Gestational Surrogacy Legal? | Pre-Birth Orders? | Compensation Allowed? |
|---|---|---|---|
| New Jersey | ✅ Yes (since 2019) | ✅ Yes | ✅ Yes |
| New York | ✅ Yes (since 2021) | ✅ Yes | ✅ Yes |
| Michigan | ❌ Illegal | ❌ No | ❌ No |
| California | ✅ Yes | ✅ Yes | ✅ Yes |
New Jersey now stands among the most surrogacy-friendly states in the U.S., alongside California, Nevada, and Connecticut.
Legal Considerations and Best Practices
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Work with a surrogacy lawyer: Contracts and pre-birth orders must comply strictly with statutory requirements.
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Use an accredited agency: Agencies help match intended parents and surrogates and ensure compliance.
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Consider insurance and liability: Ensure the carrier has adequate health coverage that applies to pregnancy and surrogacy.
Final Thoughts
With the Gestational Carrier Agreement Act, New Jersey has made it safe, legal, and clearly defined for families to pursue surrogacy. The law offers legal protection for all parties and facilitates a smooth path to parenthood — but it’s critical to follow the process correctly.
For those considering gestational surrogacy in New Jersey, consult a reproductive law attorney to ensure compliance with all aspects of the law.
