Legislation Would Help End Confusion About Surrogate Mothers, Supporters Say

Andrew Kitchenman | February 2, 2015 | Health Care
Despite previous Christie veto, measure seeks to clear up legal responsibilities of intended parents, carriers of babies

baby infant
The exact legal responsibilities of women who serve as surrogates — and the intended parents who ask them — to carry their babies remain unclear more than two years after Gov. Chris Christie vetoed a bill that sought to bring order to what can be an emotionally fraught and uncertain situation.

Now another attempt to pass similar legislation is gearing up. Supporters say the bill is badly needed to prevent the kinds of legal and emotional entanglements that can occur in the absence of laws governing the process.

Currently, the situation is governed by a series of legal precedents stemming from court cases beginning with that of “Baby M” in 1988. In that instance, 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.

The bill, S-866/A-2648, titled the “New Jersey Gestational Carrier Agreement Act,” would lay down a series of rules governing agreements in which a woman carries and gives birth to a child with whom she has no genetic relationship (by not having contributed her egg). The woman would have no parental rights or obligations under the bill. In addition, the bill would require the intended parents to pay “reasonable expenses” for the woman, known as a “gestational carrier,” including attorney’s fees and housing costs.

Women who would like to serve as carriers in the state — as well as those that operate fertility clinics — that the current state of affairs makes gestational-carrier agreements unnecessarily complicated.

Lawyer Donald C. Cofsky, a partner with Haddonfield-based Cofsky & Zeidman LLC, noted that under current state court precedents, a woman who intends to serve as the mother can face legal hurdles to being listed on a baby’s birth certificate as the child’s mother if an anonymous donor’s egg and not her own egg was used to conceive the child — a situation that would be remedied by the bill.

Cofsky said the bill would bring certainty to all involved parties, particularly the child.

Those opposed to the measure say that endorsing surrogacy runs the risk of creating a class of women who agree to carry and give birth to children for pay.

“Surrogacy, if it was widely employed, has the capability of irrevocably altering human civilization,” said Harold J. Cassidy, a Shrewsbury-based attorney who served as an attorney for Mary Beth Whitehead in the Baby M case. In that instance, Whitehead agreed to provide her egg and to carry a baby for a couple. She fought the couple for custody of the baby and received visitation rights.

Gail Robinson, another Cassidy client, said her own experience reflects problems with surrogacy. She carried and gave birth to twin girls for her brother and his partner, but later became concerned over the girls’ welfare and fought her brother and his partner for custody. “My brother’s completely torn our family apart, and it is absolutely no way to bring children into this world,” she said.

But bill sponsor Sen. Joseph F. Vitale (D-Middlesex) said Robinson’s experience actually pointed out the need for better legal guidelines, which he said the bill would provide.

“The legislation in part would require that all parties involved in this issue would have to have their own attorney, and this process would be much more organized than it is today,” Vitale said.

When Christie vetoed the earlier version of the bill in 2012, he wrote in his veto message that he was “not satisfied that these questions have been sufficiently studied by the Legislature at this time. Validating contracts for the birth of children is a step that cannot be taken without the most serious inquiry, reflection, and consensus.”

The state Senate’s Health, Human Services and Senior Citizens Committee released the bill last week, with five Democratic senators voting for it and two Republican senators abstaining.