For the third time since 2012, the New Jersey lawmakers have passed legislation that would allow persons to enter into gestational carrier agreements; namely for the intended parents to enter into a contract with a woman 21 years of age or older to become pregnant by assisted reproductive technology without the use of her own egg, and to surrender custody of the child to the intended parent immediately upon birth, and considered neither an adoption nor termination of parental rights, as long as the requirements of the statute are strictly adhered to. While two prior legislative attempts were vetoed by then Gov. Christie, it is expected that this 
current legislation (S482) will be signed by Gov. Murphy soon and become law. Many people continue to refer to the agreements covered by the statute as “surrogacy contracts”, and that they would in effect overturn the Supreme Court ruling in Matter of Baby M, 109 N.J. 396 (1988) which deemed such surrogacy contracts invalid. In reality, it does not. Further, even the extent to which this statute attempts to cover the t’s and dot the i’s in the limited circumstances where these gestational carrier agreements may be authorized, I believe the jury is still out as to their ultimate enforceability.
The struggle of men and women unable to have children on their own, whether due to the infertility of one or both, or the inability to carry a child, has been a serious issue for generations. While adoption was the only option in the past, reproductive advances have given rise to other alternatives. Many parents wanted to have a genetic or biological tie to the child. Artificial insemination afforded fathers an opportunity to have children be conceived with their own sperm. If their partner was infertile or unable to carry a child, this gave rise to “surrogacy contracts” whereby a woman would agree to become pregnant on behalf of another couple, surrendering the child upon birth, waiving any parental rights, and allowing for the child’s adoption – generally for a prearranged fee and/or other consideration. The validity and enforceability of such surrogacy contracts were what the Supreme Court was confronted with In re Baby M. On various grounds, the Court held such surrogacy contracts to be invalid, unenforceable and against public policy. In that case, the “surrogate” was in fact the genetic and biological mother of the child, her own egg being the one conceived, and carried to term in her womb. She had been artificially inseminated with sperm from the contracting husband of a couple, with the intent for his wife to adopt a child after it was surrendered to the couple upon birth. The birth mother had a change of heart and the Baby M litigation ensued. Clearly that the “surrogate mother” was the genetic and biological mother of the child was a substantial basis upon which the Court recognized a natural parent’s fundamental, constitutional and statutory rights and deeming such contracts as against public policy.
The evolution in reproduction science over the intervening years has largely rendered the “surrogate mother” process challenged in Baby M obsolete. In-vitro fertilization and implantation technology enabled a woman to be implanted with an embryo with whom she had no genetic connection, and carry that pregnancy to term. As a result, people began entering into “gestational” surrogacy contracts. The expectation was that since the woman carrying and giving birth was not genetically linked to the child, it would not raise the same fundamental parental rights concerns that had doomed the surrogacy arrangements in Baby M. However, several Court decisions left the efficacy of such gestational contracts in doubt.
