Bringing a child into your home through either adoption or surrogacy can be an exciting time for all parties involved. However it is crucial that attorneys practicing in this area of law stay on top of the changing developments in the case law and legislative actions.
The guiding law in New Jersey concerning the adoption of minor children is the New Jersey Adoption Act, N.J.S.A. 9:3-37 to 56. Over the history of the Act, it has developed to include not only the best interests of the child, but also takes into account the rights and interests of both the adoptive and birth parents. The Act places a great deal of focus on the interest of the child, and children are even considered to have a say in their ideal placement. The Act notes that if the child sought to be adopted is ten years or over, the appearance of the child may be required at the final adoption hearing. An exception may be made for good cause, and the child’s wishes concerning the adoption shall be given consideration if the child is of sufficient mental capacity to form an intelligent preference regarding the adoption. N.J.S.A. 9:3-49. Furthermore, the Act has provided for several checks and procedures when an adoption occurs out of New Jersey or when done privately.
Surrogacy is one of the more recent developments to this area of family law. It is typically utilized in scenarios where individuals may be unable to carry a child to term, but wish to have a child biologically related to them. During these agreements, at the time of birth, the carrier voluntarily terminates their parental rights to the child and the non-carrier parents adopt the child. In 1988, the New Jersey Supreme Court looked into the legitimacy of these agreements in the case Matter of Baby M, 109 NJ 396 (1988), and determined that these contracts are generally unenforceable. However, the Court noted that where there is no compensation between the parties and the carrier is not the contributor of the egg, the contract may be legally binding. Since 1988, the legislature has made numerous attempts to regulate surrogacy agreements. However, in more recent years, legislative attempts have been vetoed. It is likely to be a continued topic of discourse until legislation is passed enacting statutory regulations.
If you are interested in the process of adoption or looking for more information about surrogacy, be sure to contact Sandelands Eyet LLP at (908)470-1200 to get in contact with our highly trained attorneys.