Would-be Surrogates and Couples Seeking Babies Still Face Hurdles in NJ

Andrew Kitchenman | October 28, 2013 | Health Care
Legislation vetoed by Christie would have clarified questions about who is legal parent of child

Prospective surrogate Joanne Gartner of West Deptford and Michael Sullivan, a principal of Red Bank-based The Surrogacy Experience,
When Joanne Gartner decided she wanted to serve as the gestational carrier for another couple earlier this year, she didn’t realize that it would be more complicated because she lives in New Jersey.

The 25-year-old West Deptford woman had the idea in the back of her mind since watching a rerun of an episode of the TV show “Army Wives,” and decided after having a son of her own with her husband Mark that she wanted to carry another family’s child.

Having her own baby, Jackson, who’s now 19 months old, “was an awesome feeling,” Gartner said. “I’m not ready for another one, but I know that someone else wants a baby and can’t have one, so why can’t I help them?”

But she soon found out that New Jersey can be more complicated than other states for surrogates – a situation that would have been clarified if a bill passed by the Legislature last year had become law. But Gov. Chris Christie vetoed the measure, expressing reservations about its effect on “the traditional beginnings of a family.”

The bill was prompted by a court case in which a couple had a child through a surrogate carrier, with the husband’s sperm and the egg from an anonymous donor. The couple sought to have both the husband and wife declared the parents by a judge before the child was born, but the state Supreme Court split 3-3 on the issue, upholding an appellate court opinion that the wife would have to adopt the child at a later date.

The bill, S-1599, tried to address this issue by allowing both intended parents to be legally recognized as the child’s parents as soon as the child is born.

There are other complicating aspects of New Jersey law regarding surrogacy.

Without legislation settling the matter, a series of court decisions have shaped how the state regulates surrogacy, beginning with the famous “Baby M” case in 1988, in which a surrogate who was artificially inseminated with the sperm of the intended father was recognized by the state Supreme Court as the baby’s legal mother.

Joanne Gartner, who wants to be a surrogate mother for another couple, poses with husband Mark and their own son, Jackson.
These court decisions have led to a situation in which surrogates cannot be compensated by the intended parents beyond living expenses and expenses directly related to the cost of pregnancy and giving birth.

In addition, an order issued by a judge naming the intended parents as the child’s parents cannot be enforced for 72 hours after a child is born, during which time the surrogate can refuse to consent to the order.

No such restrictions exist in Pennsylvania, and New York legislators are considering a bill that would also remove that state’s restrictions on surrogacy.

This situation has made some infertility clinics and parents wary of dealing with surrogates who live in New Jersey — even clinics based in New Jersey.

When Gartner did an Internet search for a business that would help pair her with a set of prospective parents, the first three businesses that she contacted said they wouldn’t work with a woman in New Jersey.

But first she had to convince her husband, a sergeant in the Army National Guard, that it was a good idea.

“It was just a no” from Mark when she first raised the idea, Joanne Gartner said. But after explaining that she enjoyed the experience of pregnancy and wasn’t ready for another child but wanted to help another couple, he began to consider it. After they did more research about the potential positives from the experience, “then he was on board.”

Gartner eventually found a business that would work with her: three-year-old, Red Bank-based The Surrogacy Experience.

There is a national market for surrogates, with some parents willing to reach agreements with women who live more than 1,000 miles away, according to Michael Sullivan, a principal of The Surrogacy Experience, which has offices in Miami and Milwaukee.

That can make it difficult for surrogates to work with clinics, including some clinics in New Jersey, according to Surrogacy Experience representatives. The clinics would rather work with surrogates from nearby states such as Pennsylvania.

Donald Cofsky, a lawyer with Haddonfield-based Cofsky & Zeidman LLC, worked with the legislators who drafted the bill vetoed by Christie. He has seen the number of gestational surrogacies – in which the surrogate’s egg is not used – soar in the last 10 years, particularly the last five. He said the number of children born with the assistance of fertility drugs – including surrogacies – now exceeds the number of adoptions.

He would like to see the state normalize surrogacies by passing a bill similar to the one Christie vetoed. He noted that the current New Jersey law – in which intended mothers who are not the egg donors must adopt the child – could present problems if an intended father dies before the child is born. If the intended mother then decided that she didn’t want the child, it would put the child in a precarious situation.

“If you have a statute in place that spells out the rights and responsibilities of all of the parties, everyone is better off,” Cofsky said.

While Christie himself didn’t rule out revising the lawin his statement vetoing the bill, he said he wasn’t satisfied that the Legislature had sufficiently studied the profound changes that the bill would enact.

Some opponents of surrogacy would like to see the entire practice made illegal.

Len Deo, president of the New Jersey Family Policy Council, is concerned about the impact of intended parents paying surrogates for living and other expenses related to the pregnancy, which can be extensive.

“It basically takes a baby and turns that baby into a commodity,” Deo said. “The baby is sold to basically the highest bidder, or the couple that is willing to pay the surrogate.”

Deo, whose Warren-based organization is committed to defending traditional families, said couples should instead consider adoption.

“The surrogate is saying that she’s willing to help the couple — would the surrogate be willing to do that for no cost? Probably not,” Deo said.

Joanne Gartner is still at the beginning of the process, after having been cleared by the Surrogacy Experience during the summer after she and her husband underwent a series of psychological tests and other screenings.

Gartner, a substitute teacher who recently completed a master’s degree in education, is disappointed when people ask how much money she could receive.

She said the question makes her feel “cheap, like you’re doing it for the money – that’s the first thing on people minds,” Gartner said, adding that money is secondary to her desire to help a couple. “For giving up a year of my life, you really can’t put a dollar amount on that.”

Tina Dettlaff, the Surrogacy Experience’s client relations director, said Gartner was an excellent candidate to be a carrier.

Dettlaff sees her role as being similar to that of dating sites like Match.com, bringing the right couple and carrier together. Dettlaff said she is hopeful that New Jersey will change its laws. Barring that, she would like to see clinics in New Jersey that are hesitant to work with carriers who live in the state reconsider their stance.

“It would really open up doors for so many intended parents and amazing women in New Jersey that want to go on this journey,” said Dettlaff, who is based in Milwaukee and recently served as the gestational carrier for twins for a couple in New Jersey.

Gartner had one couple express an interest in working with her in July, but she wasn’t ready yet. She was still nursing her son and couldn’t start the necessary fertility medication.

She’s hopeful that she finds another couple soon. Her husband is scheduled to deploy, likely to a location in the Middle East, next summer.

“I wanted to be pregnant by now, so that I could avoid being pregnant next summer,” said Gartner. “Plus, my husband is going to deploy and I wanted him to be still be here.”