What is Gestational Surrogacy?
Gestational Surrogacy is defined as surrogacy where the carrier has no genetic relationship to the child she is carrying. This is accomplished by the transfer of an embryo to the carrier that does not use the egg of the carrier.
What is Traditional Surrogacy?
Traditional Surrogacy is defined as surrogacy where the carrier is the genetically related to the child she is carrying. In traditional surrogacy, the pregnancy is usually achieved by artificial insemination. Traditional surrogacy poses significant issues in determining parentage of the child and can cause disputes that do not favor the intended parents, therefore, it is discouraged by lawyers and doctors. If you intend to use traditional surrogacy, Guston & Guston can explain the law and the difficulties you may encounter.
For Intended Parents
New Jersey Law
In May 2018, New Jersey adopted a new law making gestational carrier agreements enforceable. The law is called the New Jersey Gestational Carrier Act. Deb Guston was one of the authors of the law and testified many times before the New Jersey Legislature to urge its passage. The law makes contracts valid if they follow some very simple rules:
- All parties to the contract must have their own attorneys
- The gestational carrier must be over 21 and must have had at least one prior pregnancy
- The parties all must have counseling to assist them in understanding the unique
arrangement into which they are entering
- The carrier may receive reasonable reimbursement for her living expenses, legal fees, medical expenses and other pregnancy related expenses
- The intended parents must file a pre-birth action to confirm their parentage
If these rules are followed, the contract will be enforced and the intended parents will be recognized as the parents of the child and the carrier will not have any parental obligation to the child.
Surrogacy agreements are complicated arrangements and the rights of all parties must be respected. Guston & Guston can assist you in understanding your rights as an Intended Parent on your journey to parenthood through surrogacy.
Surrogacy in other States
Guston & Guston can assist you in identifying matching programs and vetting carriers in other states and finding qualified attorneys to assist you in surrogacy agreements with carriers who live in other states. It is important to make sure that surrogacy is legal where the carrier lives and whether you can be recognized as a legal parent if your child will be born in another state.
Surrogacy in other countries
There is a perception that surrogacy may be less expensive in other countries, but there are significant problems that occur when you look outside of the United States for a surrogacy arrangement, including citizenship issues for your child, healthcare issues for the carrier and the child, legal issues and the possibility that mistakes can be made in the shipment of embryos overseas. Guston & Guston has worked with many clients who have had both successful and troublesome international surrogacy matters and can share some of those issues with you as you decide how to proceed.
How do I find a Carrier?
There are many ways to identify a gestational carrier. Sometimes a family member or friend may be willing to carry for you. Often times, you will find a matching program to work with that will assist in finding a carrier for you. Some intended parents privately network using social media. Guston & Guston can assist in helping you decide on the best plan for you.
Who can be an Intended Parent?
Anyone can be an Intended Parent. You can be a single man or woman or a couple. Under New Jersey law, your relationship status does not matter. However, if you are married or in a civil union, your spouse or partner will need to consent to become an intended parent with you.
LGBT couples and individuals have many needs for assisted reproductive technologies (ART) to assist in building their families.
Lesbian couples and single lesbians will need to use sperm donation to achieve pregnancy and may also consider using donated embryos or creating their own embryos through in vitro fertilization.
Gay men will need egg donors to create embryos and then will need gestational carriers to carry their embryos.
Transgender people may seek to preserve their fertility by moderating hormone therapy when they want to have children or to retrieve and store sperm or eggs awaiting the decision to parent.
What all LGBT people share in the decision to use ART is the need for an experienced lawyer to assure them that their choices will result not only in their being able to have children, but to make sure that their parental rights to those children are secured.
Deb Guston is a Fellow of the Academy of Adoption and Assisted Reproduction Attorneys and can help you make the right choices for family formation. Guston & Guston can help you navigate the variety of laws and policies across the country that may affect your rights to use assisted reproduction to build your family. Deb Guston is a Member of the National Family Law Advisory Committee of the National Center for Lesbian Rights (NFLAC) and a Member of the LGBT Family Law Institute, a national organization of family lawyers with extensive experience in LGBT family law.
For more information on LGBT assisted reproductive rights, the following organizations have important and interesting information:
The Academy of Adoption and Assisted Reproduction Attorneys
National Center for Lesbian Rights
American Civil Liberties Union
GLBTQ Legal Advocates and Defenders (GLAD)
Lambda Legal Defense and Education Fund
How do we start?
We recommend that you speak with an experienced surrogacy lawyer when you are first beginning your surrogacy journey to learn about all of your options and consider all of the legal issues you may encounter. Deb Guston and the lawyers at Guston & Guston offer a comprehensive introductory consultation for people starting their surrogacy journey.
Infertility, whether medical or social, does not have to interfere with your being able to build a family. Debra E. Guston and the attorneys at Guston & Guston have years of experience navigating the law in surrogacy and donor agreements. We represent Surrogates, Intended Parents and Donors and can coordinate the legal aspects of agreements with your medical providers.