Surrogacy Agreements

Growing your family is an exciting time. However, not all couples will go through the traditional pregnancy and birth process in order to bring a new baby home. There are many options for couples looking to add new family members, including adoption, in vitro fertilization, and surrogacy agreements. Gestational surrogacy is a process by which an embryo is created through in vitro fertilization and then implanted into a woman who agrees to carry the embryo to term on behalf of the couple. Although gestational surrogacy has been an option available for many years, the law has not always been straight forward about the rights and responsibilities surrounding gestational surrogacy and gestational agreements. Gestational agreements are contracts signed between a surrogate mother and the intended parents wherein the surrogate mother agrees to give up her rights to the child upon birth and sometimes the intended parents agree to provide certain compensation. In New Jersey, these types of agreements have been ruled to be unenforceable.

The landmark case in this area of law is known as the Baby M case. In that case, the intended parents entered into a surrogacy agreement with the surrogate mother. The agreement provided that the surrogate mother would be inseminated with the intended father’s sperm and then immediately terminate her parental rights to the child upon the child’s birth, in order for the intended parents to immediately adopt the child. However, with the surrogate mother had the baby, she changed her mind and decided she wished to keep the child. The case went all the way to the New Jersey Supreme Court, which ultimately ruled that such agreements are against public policy, and decided that the surrogate mother was the child’s legal mother.

Since that case, the New Jersey legislature has attempted to amend the law several times. Governor Christie has twice vetoed bills that would specifically allow gestational surrogacy agreements to be enforceable in this state. However, there is a new bill currently in the New Jersey legislature that is again attempting to legalize surrogacy agreements. The new bill would require the surrogate mother to immediately relinquish her parental rights to the child upon the child’s birth, whereas the current law provides for a 72 hour period during which a surrogate can decide to claim her parental rights to the child.

If you have questions about surrogacy agreements or other methods to expand your family, contact our Edison, NJ today at (732) 529-6937. helping clients with these complicated cases.

About the Author


John Nachlinger is a co-founder and managing attorney of Netsquire, a family law firm focused on streamlining divorces through effective mediation, settlement drafting, and court filing assistance. As a New Jersey Supreme Court Certified Matrimonial Law Attorney and Qualified Mediator, John guides couples toward equitable agreements without the cost and stress of litigation.

Recognized as a New Jersey Super Lawyer for over a decade, John’s client-focused approach aims to foster understanding during challenging transitions. With a background spanning top law journals, judicial clerkships, and boutique family law firms, John now applies his analytical skills to create workable solutions for all parties. His mediation services reshape the divorce journey by prioritizing compassion and compromise.

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