For parents who desperately want children but are unable to have their own, the existence of alternatives like in vitro fertilization, adoption, and surrogacy can be a life-changing gift. But while these parents-to-be are celebrating their options, our legal system is still trying to figure out how to handle the complicated issue of parental rights when it comes to non-biological parents—and we’re starting to see some forward momentum after decades.
Joanna L. Grossman recently covered a new New Jersey law that makes surrogacy conditionally legal in the Garden State nearly 30 decades after the historical Baby M ruling that has impacted surrogacy law nationwide ever since. Here are the highlights.
SURROGACY LAW 101: WHAT IS BABY M…AND WHY DOES IT MATTER?
Simply put, surrogacy is the act of one woman becoming pregnant and carrying a child to term with the intention of relinquishing her parental rights to a surrogate parent or couple. There are two types of surrogacy. Traditional surrogacy is when the biological mother conceives a child with her own egg. These days, traditional surrogacy occurs much less often than gestational surrogacy, which is when a donor egg or the egg of the intended mother is implanted in the surrogate’s womb via in vitro fertilization.
As an agreement between two or more parties, surrogacy doesn’t really seem like a legal matter so much as a personal decision—at first glance. Almost 30 years ago, with the case of Baby M in New Jersey, the legal grey area of surrogacy became apparent when a biological mother wanted to back out of her contract and keep her child, forcing the courts to consider the question at the heart of surrogacy law: Does a surrogacy contract supersede a biological mother’s parental right to her child?
From a contract law standpoint, it seems pretty cut and dried. If you are of sound mind and sign a contract, you are legally required to uphold your end of the bargain. However, as in the case of biological mother Mary Whitehead and Baby M, in a traditional surrogacy where the biological mother is providing both the egg and the womb, the issue becomes one of biological parental rights. The notoriety of the ongoing Baby M legal battle raised philosophical, moral, political, and even religious concerns among the courts, legal professionals, and the public.
In the end, the New Jersey Supreme Court ruled that the biological parents of the child in the eyes of the law were her mother, Whitehead, and her biological father, the intended father. The intended mother, however, was a legal stranger to the child.
This case is hugely important as it has been informing surrogacy law and questions of parentage in these cases ever since. Thankfully, things are finally starting to change.
SENATE BILL 482 MAKES SURROGACY LEGAL IN NEW JERSEY
The New Jersey Gestational Carrier Agreement was signed into law this year after two previous attempts were nixed by then-Governor Chris Christie. While the bill includes a large number of guidelines that must be met to make a surrogacy agreement legally sound (such as the age of the surrogate, necessity of medical and psychological evaluations, and the filing of proper documents), it essentially makes gestational surrogacy legal in the state.
That means that intended parents who have met the guidelines set forth by the law will be legally protected should anything go awry with the surrogate mother—and the surrogate mother will be bound to her agreement to relinquish the child to the intended parents.
WHAT YOU NEED TO KNOW ABOUT SURROGACY IN NORTH CAROLINA
Currently, North Carolina does not have any definitive statutes related to surrogacy, though legislation has been proposed in the past. Though specific statutes don’t exist, it’s common practice for the district courts to honor surrogacy agreements and enter orders prior to birth that names the intended parents as legal parents.
CONSIDERING SURROGACY? STEP ONE IS TO CALL AN ATTORNEY
If you’re considering surrogacy or adoption, it’s important to work with an experienced lawyer who can help you understand your rights and the laws that exist within your state. Their help will be critical as you navigate the complex journey of growing your family.
To learn more about your adoption and surrogacy rights in North Carolina or meet with an attorney to discuss your options, contact us today. We have extensive experience helping families and are here to help.
