Arons & Solomon Divorce Lawyers | October 21, 2026 | New Jersey Law
In New Jersey, a gestational surrogate generally has no parental rights when the surrogacy arrangement meets state law requirements. However, in some surrogacy arrangements, a mother may change her mind and want to keep the child or maintain a relationship with them. New Jersey law determines whether this is possible.
In the landmark Baby M case, the New Jersey Supreme Court voided a traditional surrogacy contract and restored parental rights to a surrogate mother who was also the child’s biological mother. The court awarded custody to the biological father, but the decision left legal uncertainty around surrogacy arrangements for decades.
How New Jersey’s Gestational Carrier Law Works
The Act applies specifically to gestational surrogacy, where the surrogate carries an embryo with which she shares no genetic connection. Unlike traditional surrogacy, the carrier does not provide her own egg.
Under a legally compliant agreement, intended parents are recognized as the child’s legal parents at birth. Adoption is not required, and the surrogate has no parental rights.
There are several requirements for an enforceable surrogacy contract:
- Surrogate Requirements: The surrogate must be at least 21 years old, have given birth to at least one child previously, and complete medical and psychological evaluations. She must also retain independent legal counsel separate from the intended parents’ attorney.
- Intended Parent Requirements: Intended parents must complete psychological evaluations, have independent legal representation, and sign a compliant written agreement.
- Agreement Requirements: The agreement must be signed by all required parties, including spouses or partners when applicable, after the required evaluations and before the relevant medical procedures begin. It must address custody, financial responsibilities, and the intended parents’ obligation to support the child.
- Medical Decisions: The agreement must protect the surrogate’s right to choose her medical providers for pregnancy, delivery, and postpartum recovery.
Sperm and egg donors generally hold no parental rights unless otherwise agreed upon in writing. These requirements help protect everyone involved and establish clear expectations before the pregnancy begins.
The Pre-Birth Order Process
During the pregnancy, intended parents file a complaint for an Order of Parentage in New Jersey Superior Court. When the court determines that the parties have complied with the Act, it issues an order establishing the intended parents as the child’s legal parents.
The order establishes parentage effective at birth. After delivery, the order and birth certificate application are filed with the state, which issues a birth certificate naming the intended parents.
What Happens If the Surrogate Changes Her Mind?
Under a compliant gestational carrier agreement, a surrogate cannot simply claim parental rights because she changes her mind about giving up the child. The agreement establishes that the intended parents will accept custody and responsibility for the child immediately after birth.
However, the legal outcome can differ when an agreement does not meet the Act’s requirements.
Under N.J.S.A. 9:17-65, a court determines parentage based on the parties’ intent when the agreement fails to satisfy that section’s requirements. This does not automatically give the surrogate parental rights, but it can create uncertainty about who is legally recognized as the child’s parent.
Traditional surrogacy arrangements, where the surrogate is also the genetic mother, do not receive the same protections under the Act.
How Does Surrogacy Differ From Newborn Adoption?
Both surrogacy and adoption welcome a new child into a family. However, they involve very different legal rules and issues.
In gestational surrogacy, the child is conceived using an egg and sperm from the intended parents or donors. In adoption, parental rights are established through a separate legal process, regardless of whether the adoptive parents share a genetic connection with the child.
Under New Jersey’s Gestational Carrier Agreement Act, intended parents can secure an Order of Parentage before birth and be listed on the birth certificate without adopting.
In newborn adoption, the birth parents’ rights must be addressed through adoption procedures. New Jersey generally does not allow a valid surrender of a birth parent’s rights within 72 hours after delivery. This is not an automatic period for revoking an otherwise valid surrender.
Contact the New Jersey Family Law Lawyers at Arons & Solomon Divorce Lawyers for a Free Case Review Today
Surrogacy touches on many areas of law, including contract, family, and reproductive law. These arrangements require careful legal guidance, particularly when questions arise about parental rights or the enforceability of an agreement.
If you have questions about mother’s rights or father’s rights, contact Arons & Solomon Divorce Lawyers at (201) 487-1199 to learn more about your legal rights and options. Our experienced New Jersey family law attorneys are dedicated to providing the clarity and advocacy you need to secure the future of your growing family.
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