Gestational Surrogacy in New Jersey

Same-Sex Couple

How are same-sex parents named on the final birth certificate?  Parent and Parent

Can an international same-sex male couple obtain an initial birth certificate naming the biological father only? If they intend to joint parent and have obtained a pre-birth court order, then both will be named on the initial birth certificate.

Alternatively, can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier?  Only if they do not obtain a pre-birth order. After birth, they can file a post-birth action to remove the Gestational Carrier’s name.

 Can they subsequently obtain a birth certificate naming only the biological father, with no mention of the Gestational Carrier? Yes, but only through a post-birth order, not a pre-birth order.

Can they subsequently obtain a birth certificate naming both fathers, with no mention of the Gestational Carrier? Yes, but they may need to take additional steps (e.g., a post-birth action).

Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in New Jersey? Yes, so long as the filing is completed within 3 months of the child’s birth.

Second Parent & Stepparent Adoptions for New Jersey

Note: This situation typically arises if the child is born outside the state.  The parents then return to New Jersey to obtain a second parent adoption or stepparent adoption in New Jersey.

Will courts in New Jersey grant second parent adoptions or stepparent adoptions to heterosexual couples living in New Jersey? Yes

Does the couple need to be married?  No. If they are not married, a home study is required, in addition to a background check.  If they are married and completing a stepparent adoption, no home study is required, only the background check.

Will courts in New Jersey grant second parent adoptions or stepparent adoptions to same-sex couples living in New Jersey?  Yes

Does the couple need to be married?  No

Egg & Sperm Donation

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?  Yes. Under the New Jersey Gestational Carrier Agreement Act, the definition of Donor includes anyone who contributes gametes for use in assisted reproduction, except for an intended parent who contributes gametes to be used in assisted reproduction pursuant to a valid gestational carrier agreement.  Furthermore, the statute reads, “Unless a person who donates gametes for use in assisted reproduction enters into a written contract to the contrary, the gamete donor is treated in law as if the gamete donor were not the legal parent of a child thereby conceived and shall have no rights or duties stemming from the conception of the child.”

Traditional Surrogacy in New Jersey

The New Jersey Gestational Carrier Agreement Act specifically excludes traditional surrogacy.  Under case law, Traditional Surrogacy is permitted in New Jersey if it is uncompensated and if there is no pre-birth agreement to surrender the child. Traditional Surrogacy agreements are unenforceable. The Intended Parents must wait until after the delivery to adopt their child. The famous Baby M case, the very first public court Traditional Surrogacy decision, was decided in New Jersey over 25 years ago and has not been superseded.