While reaction to Gov. Chris Christie’s recent veto of a bill that would have authorized gestational carrier agreements was strong on both sides -- pro and con -- in the short term legal experts say it is likely to have little impact on surrogate parenting in New Jersey.
The bill, S-1599, known as the “New Jersey Gestational Carrier Agreement Act,” would have authorized written contracts in which a woman agrees to carry and give birth to a child with whom she has no genetic relationship. The legislation sets out the circumstances when a child is created, using "assisted reproduction" on behalf of an intended parent. According to the legislation, after the child is born, the intended parent becomes the legal parent of the child and the gestational carrier would have no parental rights. This differs from traditional surrogacy where a woman is artificially inseminated with the semen of the intended father and gives birth to a child through the use of her own egg. Gestational surrogacy is now possible due to advancements in reproductive technology.
Supporters of the legislation contend that if passed, the bill would provide protection for the gestational carrier, the intended parents and, the child.
In a letter to the state Senate, Gov. Christie said: "permitting adults to contract with others regarding a child in such a manner unquestionably raises serious and significant issues." He also noted that the legislation could result in "change in the traditional beginnings of a family."
State Sen. Joseph F. Vitale (D-Middlesex), a co-sponsor of the bill, said that he intends to reintroduce the bill in the senate and expects to further discuss the legislation with the governor.
Donald Cofsky, a Haddeonfield attorney who represented the couple whose case was the catalyst for the legislation, said that the governor's veto doesn't have much impact because the practice of gestational surrogacy is legal.
"There are only really two major court decisions that deal with gestational surrogacy since the Baby M case, and neither say that you can't do it, and in fact to the contrary, it's been the accepted way of life in New Jersey now for years," Cofsky said.
The Baby M case became famous in the 1980s when the New Jersey Supreme Court declared surrogacy contracts void and against state policy, but later when deciding parental rights, chose the biological father over the surrogate mother, due to “the best interests of the child.” But Baby M was not a gestational carrier case, and since then it has been argued that the Baby M case should only apply to true surrogacy.
Cofsky's case, which is the basis for S1599, involved a husband's sperm but not the wife's egg. The wife was infertile and the egg came from an anonymous donor obtained through a clinic. The husband's sperm was used to fertilize the egg and the embryo was transferred to the gestational carrier. Cofsky obtained an order based on a previously established legal procedure that the gestational carrier signed-off on.
Cofsky, who is president-elect of the American Academy of Adoption Attorneys, said that the New Jersey Attorney General's office filed a motion to set aside the order on the basis that both parents have to be the genetic parents. Cofsky said that the attorney general had no problem with the gestational carrier not being on the birth certificate, but declared that only the genetic father should be on it and his wife should file for a stepparent adoption. Cofsky filed for certification with the New Jersey Supreme and is currently waiting for an opinion.
"The basis for my argument is that if it was the wife's egg and the husband was infertile, under the artificial insemination act and the parentage act and none of the parents object, he'd still be the father from the beginning. So why does an infertile wife have to go through an adoption when an infertile husband shouldn't," Cofsky said.
Cofsky said that the problem with gestational surrogacy is that it is unregulated and that there's no certainty when it comes to either the intended parents or the gestational carrier. "By certainty I mean who is responsible for what, and most importantly, how are the child's rights protected. Currently there's nothing that protects the child," Cofsky said.
Under the terms of S-1599, the intended parents agree to accept custody immediately upon the birth of the child and assume sole responsibility for the support of the child. In addition, the bill states that a parent and child relationship established by a valid gestational carrier agreement is the foundation for a child support order and an intended parent would be legally obliged to support the child even in the event that the intended parent breaks the agreement.
Rep. Valerie Vainieri Huttle (D-Englewood), primary sponsor of the bill, agreed that the governor's veto would not stop the use or growth of gestational carrier arrangements.
"All the governor has done is prohibit intended parents and surrogates from having defined rights and responsibilities under the law," Huttle said.
In practical terms, Huttle said that the governor’s veto means that intended parents and gestational surrogates will continue to have children through this arrangement without legal protections or they will go to other states that afford them more security.
Huttle said that she sponsored the legislation because it addresses legal issues that have arisen as a result of gestational surrogacy. "Ignoring the legal issues that accompany technological advancements, which the governor has done by vetoing the bill, does not remove the challenges."
Vitale said the intent of the legislation was to protect the process and provide for rules that everyone would follow and that would be in the best interests of the child. "Right now it's really the Wild West,” Vitale said..
He added that it was important to avoid a situation in which the child is left in limbo. "That can happen under the current process,” said Vitale. “By not having a law that [protects the child] it's all left up to interpretation and chance."
Sen. Loretta Weinberg (D-Bergen) agreed with Senator Vitale and expressed disappointment with the governor's veto. "I think that, again, he uses the 'we need to study this' excuse, but Sen. Vitale has been working on this for over a year and the administration had plenty of time to weigh in or provide input," Weinberg said.
Critics of the legislation welcomed the governor's veto.
"This is excellent news. This bill to me is class warfare," said Gregory Quinlan, director of government affairs for the New Jersey Family Policy Council. Quinlan said that the bill would allow poor women because they're being paid well, to carry a rich women's baby, but he said that it's unlikely that you'll ever see a rich woman carrying a poor woman's baby.
Quinlan asserted that the moral issue couldn't be ignored with regard to the legislation. "Rent a womb, it's really what it is. This is exploitation of women, it's anti-child and it's anti-family." Going forward, Quinlan said that New Jersey Family Policy Council would oppose the bill if it is reintroduced.
The National Organization for Women also opposed the legislation. Kathleen Sloan, a member of the board of directors of NOW and the International Coalition for Reproductive Justice, penned an op-ed that ran in the Star Ledger Sunday, siding with Christie's veto. In it, she said that the legislation, if passed, "would have allowed commercial surrogacy, women renting their bodies to carry and deliver a pregnancy, with no protections for women who serve as surrogates and no regulation of the fertility industry."
NOW commented that it does not have a position on the legislation. Sloan's comments, it indicated, reflected her personal position on the issue.
Sloan, who is a consultant to the Center for Bioethics and Culture, said that the bill was "crafted by surrogacy brokers who saw huge dollar signs, and the blatancy of the commercial exploitation of women contained in this legislation is staggering."
Huttle expressed confidence that advocates for the legislation will continue to educate legislators and the public on the issue. Huttle said that supporters will likely turn to the courts for resolution. "Some states have dealt with this issue through the judicial system. There are currently related cases pending in New Jersey so it is possible that at some point the courts will reach a different conclusion than the governor did," she said. Nationwide, gestational carrier legislation is sporadic. There are a few states that prohibit gestational carriers outright, while a few have statutes that permit it. Many states, including New Jersey, have no legislation; it's all done by case law.