By Lindsay Podolak
March 25, 2016 | 10:00 am
For many adults, the journey to have a baby is a relatively straightforward one. A couple decides when the time is right and after a few attempts, they become pregnant. Nine months later, their little baby boy or girl enters the world.
But it’s not always this simple.
According to the Centers for Disease Control and Prevention, about 12% of women (15-44 years old) in the United States face some type of infertility issue, meaning they have a problem either getting pregnant or carrying a pregnancy to term.
And while modern science has given prospective families more options–like injectable hormones to stimulate ovulation and in vitro fertilization–there is one specific alternative that is slightly more difficult for potential parents living in New Jersey.
What exactly is surrogacy?
There are two types of surrogacy: traditional surrogacy and gestational surrogacy.
With traditional surrogacy, the surrogate’s own eggs are used with the male intended parent’s sperm to create a baby. With gestational surrogacy, however, the baby is not genetically linked at all to the surrogate, because the embryo is created with the intended parents’ egg and sperm.
After the birth, the surrogate has no rights to the baby and the legal guardians are the intended parents. Or at least, this is how it’s supposed to go.
The landmark Baby M case
The history of New Jersey’s sticky surrogacy laws dates back to 1986 and the infamous case of Baby M.
Mary Beth Whitehead (a traditional surrogate) was artificially inseminated with William Stern’s sperm and signed a contract agreeing to give the baby over to William and his wife Elizabeth upon the child’s birth. After delivering the baby, Whitehead changed her mind and decided she wanted to keep “Baby M.”
The initial decision, as made by a Superior Court in Hackensack, was to terminate Whitehead’s parental rights and uphold the surrogacy contract.
But New Jersey’s Supreme Court then decided the surrogacy contract between the Sterns and Whitehead was invalid and granted Whitehead status as the baby’s legal mother, with Stern remaining the baby’s legal father. A family court later ruled that full custody would be granted to the Sterns, but Whitehead would get visitation rights.
Current New Jersey surrogacy law
The ramifications of this landmark case have been huge.
Today, gestational surrogacy is not illegal in New Jersey, but a gestational carrier contract is legally unenforceable. Confusing, right?
So what does this mean for NJ residents looking to use a surrogate? Melissa Brisman, Esquire, one of the preeminent reproductive lawyers on the East Coast and founder of Reproductive Possibilities, outlines for Best of NJ the three reasons why New Jersey is not currently considered a “surrogacy-friendly” state:
- Gestational surrogates can’t be monetarily compensated.
- The rights of the gestational surrogate cannot be terminated until at least 72 hours after delivery, leaving a period of time in which the surrogate may claim parental rights.
- If the egg of a donor is used (not the intended mother or the gestational surrogate), the intended mother must adopt the child.
Can you imagine being the intended parents and having to wait until three days after the birth of your baby in order to be granted legal parental rights?
Or what if you are the gestational carrier? Let’s imagine that the baby is born with some type of birth defect and the intended parents decide they don’t want him anymore. The gestational carrier is now the legal guardian for a newborn that wasn’t supposed to be hers.
So what does this mean?
This doesn’t mean that all hope is lost if you live in New Jersey and need to use a gestational carrier. There are still paths to a successful surrogacy available.
One option is to find a gestational carrier in another state that is more surrogacy-friendly and will be accepted by New Jersey fertility clinics.
Another option is to find a “compassionate carrier” that does not accept compensation for carrying the baby.
The first step, however, is knowledge. Understanding New Jersey’s views on surrogacy will go a long way in helping couples figure out the best way to approach the situation and get the end result they have been dreaming of…a little bundle of joy to call their own.