surrogate motherhood in New Jersey

In 1988, the New Jersey Supreme Court decided the landmark surrogacy case, In the Matter of Baby M, 109 N.J. 396, 537 A.2d 1227 (1988). The Court ruled, in a now famous opinion, that surrogacy contracts are illegal and unenforceable because they violate the public policy of the state. First, the Court likened the surrogacy contract in that case, which provided the birth mother with a payment of $10,000.00 upon the surrender of her parental rights and delivery of the child to the father and his wife, to the sale of a child which is prohibited by New Jersey laws regulating adoption.

The Court found that a woman's decision to surrender a child before it is born is necessarily uninformed because she does not yet know the nature and strength of her bond with the baby. The Court went on to find that a post birth surrender of a child is not voluntary when it is compelled by a previous contract or a payment. Having ruled that the promise to surrender was coerced and therefore not valid, the Court went on to hold that the birth mother's parental rights may only be terminated upon a finding of neglect or abuse, neither of which was present in that case. The Court also found that surrogacy agreements violated New Jersey policy that both natural parents of a child are equal concerning their child.

The "illegality" of the surrogacy agreement is a concept of contract law and the Court's ruling does not mean that it is a crime to enter into a surrogacy agreement in New Jersey. The effect of illegality in contract law is that neither party to the contract may enforce it in a court of law. There has been no further development in the law affecting surrogacy since the Baby decision.

Like most states, New Jersey provides, by statute, that the husband of a woman artificially inseminated with semen from a donor other than her husband, is treated by the law as the natural father of any child born, if he has consented and the insemination has occurred under the supervision of a licensed physician. The donor of semen provided to a physician for artificial insemination of a woman not the donor's wife is not considered the father of any child so conceived and later born, and shall have no rights or duties with respect to such child.