New Jersey Gestational Carrier Agreement Act and The Teachings of In Re Baby M

Somerville child custody lawyers assist clients obtaining an Order of Parentage in a Gestational Carrier Agreement.It has been thirty (30) years since the New Jersey Supreme Court issued its decision on the landmark case of In Re Baby M, which banned gestational carrier agreements. In the Baby M case, William Stern entered into a surrogacy agreement with Mary Beth Whitehead, the gestational carrier. Per the terms of their surrogacy agreement, Ms. Whitehead would be inseminated with Mr. Stern’s sperm, give birth to the baby, and upon such birth would immediately give up her parental rights to the child. Upon the birth of Baby M, Ms. Whitehead had a change of heart and decided she wanted to keep the child, much to the surprise of the Sterns. The Sterns brought an action in Court to be recognized as the child’s legal parents. Ultimately, the New Jersey Supreme Court found that the agreement reached between the Sterns and the Whiteheads was against public policy and Ms. Whitehead was declared the mother of Baby M.

Fast forward to present day, on May 30, 2018, Governor Murphy executed the New Jersey Gestational Carrier Agreement Act, which now permits parties to enter into a gestational carrier agreement allowing the parties to contract such that one party becomes pregnant for an intended parent or parents through assisted reproductive technology. The Act specifically provides that the gestational carrier waives any and all rights to the intended child, and the intended parent or parents are to assume all responsibility and parentage of the intended child upon his or her birth.

The following are required of the gestational carrier

  • Must be at least 21 years old
  • Must have given birth to at least one child
  • Completed a medical and psychological evaluation prior to entering into any Gestational Carrier Agreement

The intended parent or parents must also complete a psychological evaluation prior to entering into any Gestational Carrier Agreement.

The Act specifically requires that both the gestational carrier and the intended parent(s) are represented by their own separate counsel. It is imperative that both sides retain their own counsel because the nature of the relationship between the parties and the conceived child has far reaching legal implications of parental rights and child custody.

After a gestational carrier becomes pregnant in connection with a valid gestational carrier agreement, the intended parent must file a Complaint for an Order of Parentage with the Superior Court, Chancery Division, Family Part of the county in which the intended parent or the gestational carrier resides, or in the county of the child’s anticipated birth. The Complaint is to include an affidavit by the gestational carrier and her spouse or partner in a civil union or domestic partnership, if any, that they have entered into and agree to be bound by a gestational carrier agreement, affidavits of representation by the attorneys for both the gestational carrier and the intended parent, and a statement by the medical facility that performed the assisted reproduction regarding the achievement of pregnancy. If the Court finds that the parties have complied with the provisions of the statute, the Court will enter an Order of Parentage naming the intended parent as the legal parent of the child and that after the birth of the child, the Order of Parentage which can be used by the intended parents to apply for a birth certificate upon which their names will be listed as the child’s parents.

For more information regarding gestational carrier agreements contact the legal team at the Law Office of Lyons & AssociatesAt the law office of Lyons & Associates, we represent men and women throughout New Jersey who have unresolved family law matters. We place a premium on personalized service and attention. For a private consultation, contact us by e-mail, view our website at, or call our office at 908-575-9777.

Written by: Marissa A. Del Mauro