N.J. Bill To Loosen State's Strict Surrogate Parenting Laws Moves Forward
nj.com May 18, 2012
A state Senate panel Thursday advanced a bill that would loosen New Jersey’s strict surrogate parenting laws, enacted a quarter century ago after the state Supreme Court’s "Baby M" decision spurred a national debate over who has rights to the child when couples hire a woman to give birth.
Under the legislation, New Jersey would eliminate the three-day waiting period for parents of children born to surrogates to be listed on their birth certificates.
"It’s definitely about time," said Melissa Brisman, a Montvale attorney who specializes in surrogacy contracts. "The law is so behind the times here."
New Jersey couples seeking to conceive a child with the help of a surrogate often make arrangements with surrogates in other states that do not have the 72-hour waiting period because they want to be the legal parents "from the first second of birth," Brisman told the Senate Health, Human Services and Senior Citizens Committee. She said the long-distance doctor visits can be costly to the intended parents and make it difficult for them to be present for the birth.
The 72-hour waiting period after a surrogate gives birth was designed to give the surrogate time to decide whether to relinquish her rights to the newborn.
The law was enacted in response to the 1986 Baby M case, in which surrogate Mary Beth Whitehead refused to give up the baby girl to the biological father, William Stern, and his wife Elizabeth.
The court awarded custody to the Sterns, with Whitehead getting visitation rights. And the decision — the first in the nation to address the issue — gave rise to surrogacy contracts that evolved into the more intricate agreements used today.
Judith Kottick, a counselor for intended parents and surrogates, told the committee that the screening process is so thorough that of the hundreds of cases she’s handled, she’s never had a surrogate back out of a contract.
The bill (S-1599) also allows "reasonable" monetary compensation by the intended parents to the surrogate during the pregnancy for expenses such as clothing, food, rent or mortgage and other household expenses.
John Tomicki, executive director of the League of American Families, whose group is opposed to in vitro fertilization, told the panel the bill should be rejected because he said it does not contain all the safeguards common to surrogacy contracts.
Gregory Quinlan, director of government affairs for New Jersey Family Policy Council, said the bill is silent on "some serious issues" that were not addressed in the Baby M legislation, such as what happens when intended parents or the surrogate back out of the contracts. "This is why we need these legal parameters so we can address it before we go through it," Quinlan said.
The bill, sponsored by Sens. Joseph Vitale (D-Middlesex) and Loretta Weinberg (D-Bergen), grew out of the case of a Union County couple initially allowed to be listed on their son’s birth certificate after the three-day waiting period. The state Bureau of Vital Statistics went to court to block it, contending that because the intended mother had no genetic or biological tie to the infant, she had to adopt the baby despite a surrogacy contract originally recognized by a judge.
The couple’s attorney, Donald Cofsky, two months ago argued before the state Supreme Court that the baby — conceived with an anonymous donor egg and her husband’s sperm — should be considered the child of the wife as well, not just of the husband. The court has not yet issued a decision.
Cofsky told the committee Thursday that if the intended mother died during the three-to-six month adoption process, the child could be prevented from inheriting her estate tax free or receiving her Social Security benefits. In addition, he said, the woman’s family would not have any rights to the child.