Couples having difficulty conceiving a child sometimes enlist a third party surrogate to become parents. Surrogacy presents a viable option for intended parents in New Jersey, but they must wait until after the child’s birth to adopt the child and assert their parental rights. Problems arise when a surrogate refuses to relinquish the child, which happens from time to time.

New Jersey courts will not enforce surrogacy agreements, especially when they involve compensation of any kind (A.H.W. and P.W. v. G.H.B. (2000) and In re T.J.S. (2012)). Pre-birth parentage orders have limited value in declaring parental rights during surrogacy, which can then be asserted after the child is born.  Such orders have an automatic stay for 72 hours after the birth, which allows gestational carriers and any spouses of gestational carriers to assert or relinquish parental rights, so the intended parents may take the child. Pre-birth parentage orders only apply to questions of who the parents are, and do not make surrogacy agreements enforceable.

Pre-birth orders CAN help both intended parents declare legal rights over the child in the following situations:

• Heterosexual couples, married or unmarried, who donate both egg and sperm.
• Single intended parents who donate either egg or sperm.

Pre-birth orders DO NOT help both intended parents declare legal rights over the child in the following situations:

• Heterosexual couples, married or unmarried, who use either an egg or sperm donor.
• Same-sex couples, who use either an egg or sperm donor.

Only a biologically related parent can obtain a pre-birth order.

• Heterosexual couples must return to their home state and obtain step-parent adoption rights for the non-biological intended parent.
• Same-sex couples have issues that come into play for the non-biological parent.

If you are considering or are involved in a surrogacy agreement and you want to clarify your legal rights, please contact our experienced family law attorneys at Hanan M. Isaacs, P.C.  We want the best outcome for you and your family. Call 609-683-7400 or contact us to schedule a near-term and reduced fee initial consultation at our Central Jersey law offices in Kingston.  We will listen to your facts, advise you about the law, and present you with the options that will best meet your goals.  Call today.  You will be glad you did.