May 19, 2015

Legislation that would end confusion over the rights of parents and surrogates who carry their child awaits action from Governor Christie, but it’s the same bill he vetoed in 2012.

Melissa Brisman, a reproductive lawyer in Montvale, New Jersey, is on a committee that helped write the original proposal, the “New Jersey Gestational Carrier Agreement Act,” along with the bill’s sponsor state Senator Joseph F. Vitale (D-Middlesex).

She explained that couples looking for a gestational carrier in New Jersey cannot use the egg from the woman carrying the baby or her husband’s sperm. The egg and sperm must be genetically related to couple seeking the surrogate.

Brisman pointed out the “Baby M” situation in 1988 resulted in case law that went to the state Supreme Court and that decision hasn’t been overruled. In that case, a surrogate who was artificially inseminated with the sperm of the intended father was recognized by the Supreme Court as the baby’s legal mother.

“So because it hasn’t been overruled, it’s the law of the land. Until you get a new law, you’re not going to be able to do anything about it,” Brisman said.

Surrogates living in New Jersey are not allowed to be paid, which means people seeking a carrier have to use a friend or family member, or go to another state. A surrogate also has 72 hours after birth to claim potential rights to the child, according to Brisman.

“You certainly could get a carrier from Pennsylvania or Connecticut, you could compensate her in those states, and you could terminate her rights to the baby while she is pregnant, and that’s what most people will do,” said Brisman.

In addition to setting a minimum age of 21 for surrogates, requiring medical exams, and itemizing costs for parents, the measure also includes two key factors.

“It would allow you to compensate a gestational carrier and it would also get rid of the 72 hour waiting period, so that you could go in and get a prebirth order,” said Brisman.

Christie vetoed the measure in 2012 because there wasn’t enough research done in the presentation of the bill, according to Brisman. She said she believes he plans on running for President and that it wouldn’t look good for a Republican to endorse a bill of this type.

“I think it’s more political than he really cares about whether or not there are gestational carriers in NJ,” she said.

“The bill is meant to protect both the carrier and the intended parents, so it wouldn’t let the intended parents change their mind,” Brisman said, citing the case involving celebrity Sherri Shepherd as an example. The fired co-host of “The View,” reportedly didn’t want the baby because she was getting divorced. The baby was conceived using the sperm of Shepherd’s ex-husband, but not her egg.

Brisman said laws involving protections for surrogates and the intended parents vary just like adoption laws that are left up to individual states.

“It’s not something that will be uniform because it’s too much wrapped in abortion, and the political climate that state’s are going to have different views on it. For the average person it’s very confusing,” said added.

Brisman’s New Jersey office handles about 300 paid surrogacy cases a year. She noted carriers have to come or deliver in a state that is surrogate-friendly. She also is licensed in Massachusetts and Pennsylvania.