Since the 1980s lawmakers in New Jersey have been struggling with the idea of family and what actually constitutes one. It began with William and Elizabeth Stern, who hired a surrogate, Mary Beth Whitehead, to carry a baby for them for $10,000. However, once the child was born, Whitehead decided to keep the baby. And the New Jersey Supreme Court allowed her to, stating at the time that surrogacy contracts were invalid. The case sparked criticism and gained support throughout the country and quickly became known as “The Baby M case.”
The law that allowed Whitehead to keep the child is going to change though. In June of 2018 New Jersey Governor Phil Murphy signed into law a ‘gestational carrier’ law that will now allow surrogacy within the state.
It is a legal battle that began in New Jersey six years ago. It passed both houses of the state legislature twice before but was ultimately vetoed by then-Governor Chris Christie. Now, after Murphy has listened to the LGBTQ community as well as industry lobbyists, the ban on surrogacy has ended in the state. In addition, the way the new law was written gives plenty of protection to those that commission surrogates to birth a child for them.
The parents that have hired a surrogate can now dictate anything that pertains to the pregnancy, including if and when it should be terminated. And, while adoption law in New Jersey states that adopted children have the right to obtain their birth certificate to determine their birth parents, children born to parents that have hired a surrogate may not have the same right. This is due to the fact that the birth certificates of children born through a surrogate do not have to state the names of the surrogate, only those of the intended parent.
“While few pieces of legislation written into law are perfect,” says Ed Weinstein of the Law Offices of Edward R. Weinstein, “this is a positive move forward for all families in New Jersey. Unlike the unfortunate outcome of Baby M’s surrogacy, no parent that has hired a surrogate in New Jersey will ever have to go through that again.”
The law could also bring more people to New Jersey. This is because neither the surrogate, nor the intended parents, need to actually live in the state to take advantage of the new surrogacy law. Some say that, like California, this could cause New Jersey to become a state attractive to reproductive tourists.
