April 03, 2012
New Jersey pioneers legislation: 1988 Surrogacy Law
By AMANDA ANTONUCCI
Staff Writer
There are very few moments in New Jersey history, where she has so inspired the course of national legislature as with the New Jersey Surrogacy Law. In 1988, the New Jersey Surrogacy Law was passed in order to protect the custody rights of surrogate mothers. This law determines that all surrogate agreements made before the birth of a child, which strips the birth mother of her custody rights, are not protected under N.J. legislation. It was inspired by the popular Baby M. Case, in which birthmother Mary Beth Whitehead initiated a legal battle to maintain rights to “her†child after having previously signed a surrogacy agreement. Although the court awarded the father (William Stern) and his wife custody of the child, Whitehead was given visitation rights. This case would ultimately gain national recognition.
Many scholarly works have addressed the impact of the New Jersey surrogacy law upon the nation. For example, Lori B. Andrews, author of Beyond Doctrinal Boundaries: A Legal Framework for Surrogate Motherhood (published in the Virginia Law Review), states “[since the New Jersey Surrogacy Law] nearly every state legislature has considered laws to allow, ban or otherwise regulate surrogate motherhood.†Janna C. Merrick, author of “Selling Reproductive Rights: Policy Issues in Surrogate Motherhood†(published by the Journal of Politics & Life Sciences) sheds light upon the “[heightened awareness] of emerging issues in human reproduction,†inspired by the passing of the N.J Surrogacy Law. What are these issues she speaks of, and how does the New Jersey Surrogacy law attempt to rectify them? Is New Jersey legislature successful in its endeavours to rectify these issues, or does the law merely present further complications?
The first step to understanding the trappings of this legislation is to determine the problems it is attempting to solve. In “Selling Reproductive Rights: Policy Issues of Surrogate Motherhood,†Janna C. Merrick illuminates many negative aspects of surrogacy. Because the surrogate mother is normally paid a fee for the birth and relinquishment of a healthy child, Merrick likens the surrogate mother to a commodity. Although the New Jersey Surrogacy law was instated on the basis that a surrogacy agreement “[violates] the public policy of the state,†which bans the sale of a child, the law also protects the mother’s rights to her own body. This law assures that there is no agreement that can force a mother to relinquish the rights to her body or that which is born of it. Therefore, through this legislation, the woman and her child are no longer commodities, predetermined to be sold. The second complication being “rectified†by this law is the claim that surrogates will never have enough information to enter into a binding contract because they do not know how they will feel about the child they have agreed to bear. This opinion can be supported by certain surrogate endeavours that backfired, such as Mary Beth Whitehead’s.
It is clear that the practice of surrogacy creates a plethora of complications. However, does the banning of surrogacy contracts truly rectify them? Furthermore, what issues does the ill-legitimising of contracts create? In “Beyond Doctrinal Boundaries,†Andrews characterizes the New Jersey Surrogacy law as the family law approach, which “prohibits the enforcement of surrogacy contracts.†She continues by revealing the issues with family law, “such as the fact that it tends to recognize only one type of family: the male-led heterosexual couples with children.†This concept of family law pertaining to only the “generic†family inspired a deep consideration of the consequences of the New Jersey Surrogacy Law. One such consequence would be for the non-traditional family who has no choice but to resort to adoption or surrogacy (such as homosexual males). Under New Jersey legislation, a male homosexual will never be supported in his desire for a biological child. Furthermore, he must enter an agreement fully knowing that it may be thwarted at any time. This concept of a thwart-able “contract,†may also serve to diminish the thoughtful consideration of surrogate mothers. Many may enter an “agreement,†with the preconception that it is not binding, and thus not serious. This might prove to increase rather than decrease the number of situations like Whitehead’s. In this instance it will be the “adoptive†parents who suffer when they find out they will not be receiving the child they have emotionally, spiritually and physically prepared themselves for.
In conclusion, many components of this legislation are highly debatable and are likely to inspire much controversy. However, this only deepens the impact it has made upon the nation and state policies regarding surrogacy.
