Assisted Reproductive Technology has been steadily growing within the population of the United States and New Jersey. It is a scientific way to start a family that encompasses terms and techniques. There is sperm donation, egg donation, traditional surrogacy, gestational surrogacy, co-maternity, intended parent and in vitro fertilization (IVF). For the NJ lawyer the cases and statutes do little to guide us. We must rely on our creativity to advance our client’s position.
The major case that brought ART to light in NJ was the Baby M case. In that case the wife in a married couple was infertile and could not bring a baby to full term. They contracted with another married women to have her be their surrogate. The surrogate was to be paid $10,000. After the child was born the surrogate did not follow the agreement and petitioned for recognition of her parentage.
At the time, NJ law stated that termination of parentage could only be achieved through a private placement by an adoption agency or DYFS. NJ also barred pre-birth surrender of parental rights. The Court in the Baby M case held a traditional surrgoate contract is unenforceable and againt public policy. The Court invited the NJ Legislature to revist the statutory requirements be they did not.
In 2000, the Court reviewed a case where a married couple entered into an uncompensated gestational carrier agreement with the wife’s unmarried sister using ovum from the wife and sperm from the husband. The Court found the agreement to be fine because the woman voluntarily entered the agreement without payment. In 2005, a same-sex female couple petitioned the Court for a pre-birth order naming both as parents without an adoption. One of the women with the consent of her partner, had become pregnant through insemination from an annonymous donor. The Court ruled in favor of their request because they had proven their commitment to each other and the child. The Court relied on NJ’s strong policy of the best interests of the child.
So what does this all mean for the law right now? Below is a list of the law as it stands now:
– Sperm donation is permitted by statute. Name of the husband in a married couple can appear on the birth certificate from birth and isolates the donor from claims of parentage and support.
– Using a known sperm donor without following statutory procedure can result in the donor asserting paternity or the mother seeking support.
– There is no case law or statutes covering egg donation.
– Paid traditional surrogacy is illegal.
– The State will oppose any pre-birth order for parentage unless the person can prove a genetic connection. The State will not oppose co-maternity.
– A female same-sex couple who are in a civil union or an out of state marriage recognized as a civil union will both be listed on birth certificate without a stepparent adoption.
– Both members of a same-sex male couple cannot be on the birth certificate from birth. The birth mother cannot surrender her rights until 72 hours after birth. A second father must pursue a second parent adoption as well as request termination of any rights of the egg donor, gestational carrier and husband of the donor or carrier.
– NJ law prohibits discrimination due to sexual orientation, marital status and gender identity. As a result, ART is accessible to gay men, lesbians, unmarried individuals and transgendered individuals.
– The Courts are split on the weight to give the intent of the parties concerning ART cases.
In all ART cases documenting the process is key. Also important is to keep everyone informed and provide any counseling that is needed. All must remember these cases are about lives and families.
Contact us today if you would like more information.