A gestational carrier is a woman who agrees to implant a fertilized embryo or embryos into her uterus for the purpose of giving birth to a child or children.
In gestational carrier cases, the egg(s) used to create the embryo(s) are not from the gestational carrier, but some states – ie NJ as of August 2016! – will still consider the gestational carrier to be the legal mother of the child. It is possible that the intended (biological parents who provided the egg(s) and sperm) may be able to clarify their parental rights in New Jersey by filing with a NJ Court for a pre-birth order before the birth of the child in New Jersey. You will need to discuss this option with your attorney – prior to conception of the child – to ascertain whether or not this is an option for you.
Other states ( ie FL ) have designed specific statutory guidelines and procedures that if correctly followed could severely restrict or completely eliminate a gestational carrier’s claim that she is a legal parent.
One common issue revolving around gestational carrier agreements is the use of SELECTIVE REDUCTION clauses. This is a process wherein the intended parents and gestational carrier may contractually agree to allow for some or all of the implanted embryos to be terminated after successful implantation into the gestational carrier’s uterus based on factors as health of the embryo (ie Downs Syndrome) or quantity (more than twins, etc.). Although the parties may agree to selective reduction prior to pregnancy, a clear issue remains as to what if the gestational carrier refuses to agree to the selective reduction and if a Court would ever enforce a forced abortion. Additionally, who should be responsible for any child born against the wishes of the intended parents? These issues must be carefully explored and examined and explained to all participants prior to pursuing a gestational carrier agreement.