Time for Gestational Surrogacy Contracts in NJ?

  • By 7051980283
  • 05 Jul, 2017

30+ years past Baby M

Before its summer recess, the New Jersey Senate passed S-1238, which wouldpermit legally binding gestational carrier agreements. Couples who cannot conceive and carry a baby in the usual way may wish to hire a surrogate to carry another woman's fertilized egg to term. At present there are no laws which permit such an arrangement in new Jersey, and agreements for gestational surrogacy will most likely not be upheld by the courts. For practical purposes, this does not prevent surrogacy from happening, but it does mean that the parties may not be protected in the rights they bargained for. The bill's sponsor, Senator Joseph Vitale reports that there are 12 states, plus the District of Columbia, which permit and regulate gestational surrogacy contracts: Arkansas, Delaware, Florida, Illinois, Nevada, New Hampshire, Tennessee, Texas, Utah, Virginia, Washington state and Wisconsin, along with the District of Columbia.

On June 27, the New Jersey Law Journal quoted Senator Vitale's statement:
 "For men and women who are looking to start or expand their families but have struggled to do so through traditional means, surrogacy  
 offers an alternative path to having children. As science advances, and more couples turn to surrogacy, gestational carrier agreements are
 imperative to protect the interests of all parties involved, including the carrier, the intended parents and the child."

Governor Chris Christie has vetoed similar legislation twice, and may do so again. Governor Christie stated that he felt more study was required into the legal and ethical ramifications of surrogacy.

In the Baby M case,  In re Baby M , 109 N.J. 396 (N.J. 1988)the NJ Supreme Court invalidated a surrogacy contract, giving the surrogate/birth mother parenting rights with the child.  Baby M's birth mother was in fact also the biological mother, since it was her egg that was fertilized with the father's sperm. In a later case, a NJ Court upheldparentalrights for a gestational carrier even where a donated egg was used.

The NJ Law Journal reports that under the bill
 "the gestational carrier must be at least 21 years old, have already given birth to at least one child, and have completed both medical and
 psychological evaluations. The intended parents would be required to have completed a psychological evaluation to determine their
 suitability to enter an agreement, and to have retained an attorney to advise them about the terms and potential legal consequences of
 entering into an agreement. The agreement would have to clearly state that the gestational carrier would agree to undergo pre-embryo
 transfer, to attempt to carry and give birth to the child, and to surrender custody of the child to the intended parent immediately on the birth
 of the child. The agreement would allow for the gestational carrier to choose her own medical care for the pregnancy, labor, delivery and
 postpartum care. The agreement would not be considered an adoption, a surrender of custody, or a termination of parental rights."

States that do provide for surrogacy by contract often forbid compensation for the surrogacy, beyond payment of expenses of the pregnancy, birth, medical care, although some, like Florida, provide that the surrogate's living expenses may be covered. In Virginia a surrogate contract, to be valid, has to be approved in court, with a law guardian appointed for the potential child, and a home study done on the home of the intended parents, similarly to an adoption proceeding.

The concern, widely raised at the time of Baby M, that surrogacy might lead to exploitation of women's - and especially poor women's - child-bearing capability, appears to have been dealt with in the drafting of the surrogacy statutes around the country. A carefully drafted statute seeking to balance and protect the rights of the parties involved, seems to me far preferable to surrogacy happening without any regulating laws, as it is today.

 - C. Megan Oltman, Esq.

Please contact Oltman Law & Mediation (609) 924-2044, if we can help you with your family law, elder, trusts and estates or mediation needs in New Jersey.

Please note that blog posts do not constitute legal advice, but are intended for informational purposes only. They cannot substitute for an in-person consultation with a lawyer. Your use of this site does not create an attorney client relationship.



 

Oltman Law & Mediation Blog

By 7051980283 14 Nov, 2017
The Republicans in Congress have proposed a tax bill that clearly benefits only the wealthiest individuals. There has been much written about the elimination or reduction of deductions for state and local taxes, for mortgage payments, for teachers who buy school supplies, for high medical expenses. All of these are real problems, and if the hideous bill passes, will increase taxes on many middle class families, all to give even bigger tax breaks to corporations and the wealthiest Americans. We can all hope that with the wave of popular sentiment against this bill, it will never pass, or not in the current form.

There are some lesser known provisions of the bill that will disparately impact divorcing families and single-parent households. The elimination of Head of Household as a filing status will causea significant increase in the tax burdenon single parents, further undermining the well being of  a struggling sector of our society. Child support awards, based on net earnings of the parents, are usually calculated assuming Head of Household status for the parent of primary residence.  These parents will need to petition for a modification of their child support awards to take into consideration a higher tax burden on the parent receiving support.   

The bill also proposes to eliminate the tax deduction on alimony paid, a provision which is as confusing as it is senseless. This shifts the burden of paying tax on alimony payments from the recipient of the alimony to the payor. This will certainly generate more tax overall, as the higher earner, who may be in a higher tax bracket, will be paying the tax on those dollars, instead of the lower earner. This will be of some advantage to the recipient spouse but will usually mean less money available to the family overall. If this bill passes any current rules of thumb, used to negotiate alimony, will have to be adjusted to allow for the higher cost to the payor and decrease in the payor's available income. What happens to existing awards? The bill states it will apply to agreements entered into after December 31, 2017. Will the IRS be able to cope with the continued deductibility for older agreements, with no deductibility for newer ones? Will taxpayers have to attach their divorce settlement to their annual tax filing?

For people who are negotiating a divorce now, with the outcome of this legislation unknown, think about including the possible passage of this bill as a significant change of circumstances which would trigger a modification of alimony.

C. Megan Oltman, Esq.

Please contact Oltman Law & Mediation at (609) 924-2044, if we can help you with your family law, elder, trusts and estates or mediation needs in New Jersey.

Please note that blog posts do not constitute legal advice, but are intended for informational purposes only. They cannot substitute for an in-person consultation with a lawyer. Your use of this site does not create an attorney client relationship.    
By 7051980283 07 Nov, 2017
Please participate! We can only impact the world when we do. Get out and vote today - if you already voted thank you!
By 7051980283 24 Oct, 2017

                                                                                                               by C. Megan Oltman, Esq.

 

 A couple divorces with the children spending time with both parents. Then, one parent announces that they will be relocating and want to bring the children with them. This will severely limit how often the children will be able to spend time with the other parent. Until recently, New Jersey’s standard for relocation was lenient towards the relocating parent – allowing the relocation of the children as long as there was a good faith reason, and the move was not “inimical to the interests of the children”.

  On August 8, 2017, the New Jersey Supreme Court decided Bisbing v. Bisbing, (A-2-16; 077533, 8/8/17), abandoning the standard it set 16 years ago in Baures v. Lewis, 167 N.J. 91 (2001), and deviating significantly from over 30 years of law which started with Cooper v.Cooper, 99 N.J. 42 (1984) and Holder v. Polanski, 111 N.J. 344 (1988).

  The Bisbing decision means that where parties share joint legal custody, and a parent wants to relocate the children over the other parent’s objection, the courts will apply a best interest of the child analysis, as they would with any request for a change of custody.

  Following their divorce, the Bisbings shared joint legal custody of their children, with the mother as the Parent of Primary Residence and the father as Parent of Alternate Residence. In addition to holiday and vacation time, the father’s parenting schedule incorporated "every other weekend and on one weeknight during the weeks when he does not have parenting time".

  The Bisbing appeal arose from a trial court’s post-judgment determination authorizing the mother, Jaime Taormina Bisbing to permanently relocate from New Jersey to Utah due to her remarriage, bringing with her the twin girls born November 2006, notwithstanding the father, Glenn R. Bisbing, III’s, objection to the children’s move.

  Historical Perspective

  Beginning in 1984, New Jersey ranked as one of the most permissive states for parental relocation. Bisbing brings us back into the mainstream on this issue. In Cooper (1984), and Holder (1988), the New Jersey Supreme Court greatly liberalized the standard for removal, permitting a custodial parent with a “good faith reason” to move with the children as long the move was not inimical to the children’s interests and would not adversely affect the other parent’s visitation.

  The Cooper-Holder standard relieved the relocating parent of the burden of proving best interests, and left it to the non-custodial parent to try to prove that the move would actually be harmful to the children.

  At that time, a traditional model of a divorced family was common, with the mother designated as the custodial parent, and the children typically spending every other weekend with the father.

  In Baures v. Lewis (2001), the Court eased the burden on a custodial parent by creating a two-prong test, first to determine whether the relocating parent was the primary custodial parent. If court determined that they were the custodial parent, then the test was to prove good faith and that the move will not be inimical to the child’s interest. The Court outlined twelve factors to be considered in determining whether the move was in good faith and not harmful to the children. If there was a shared custody setting (no one “custodial parent”) then the court would treat the application as one for a change of custody based on changed circumstances and apply a best interests analysis.

  Bisbing eliminates this two-tiered analysis and applies a best interests standard across the board. The Court in Bisbing rejected the discredited social science research, with its emphasis on the importance of the “custodial parent,” that they had relied upon in Baures.

  Mediation and Relocation

 The world has changed significantly since 1984. Shared parenting is now the norm in divorced families, and the term “custodial parent” is not much in use. The courts are committed to treat mothers and fathers equally, and Bisbing clearly reflects that commitment.

  As almost anyone involved with actual custody litigation can attest, custody fights are expensive and time-consuming. One or more psychological experts will be needed to prove best interests.

  While the Bisbing decision should promote fairness between divorcing parents, a relocation case has just gotten much harder to prove in litigation. In light of the Bisbing decision, divorce mediators may want to spend more time with couples in crafting solutions to a potential parental relocation.

- Reprinted from NJAPM Mediation News, Vol. 22, Issue 1, Fall 2017 .

Please contact Oltman Law & Mediation (609) 924-2044, if we can help you with your family law, elder, trusts and estates or mediation needs in New Jersey.

Please note that blog posts do not constitute legal advice, but are intended for informational purposes only. They cannot substitute for an in-person consultation with a lawyer. Your use of this site does not create an attorney client relationship.

By 7051980283 15 Sep, 2017

Did your lawyer tell you to keep all your divorce papers in a safe place so you can find them again easily? I realize that your divorce papers are probably not so old they were written with a quill pen, but they can be just as precious. Here’s one of the reasons for it: If you need to make a motion to modify a support obligation later on, you can’t do so without filing both a current case information statement and the original case information statement filed in your divorce action, under NJ Rules of Court Rule 5:5-4(a). This requirement was underlined in the case of Palombi v. Palombi (N.J. Appellate Division, 2010) where the court held a motion deficient on its face, that sought a modification of financial obligations without providing a current and a prior case information statement. The deficiency was evidentiary, the court said, and could not be cured at oral argument. In other words, only the original case information statement would be considered sufficient evidence.

 - C. Megan Oltman, Esq.

Please contact Oltman Law & Mediation (609) 924-2044, if we can help you with your family law, elder, trusts and estates or mediation needs in New Jersey.

Please note that blog posts do not constitute legal advice, but are intended for informational purposes only. They cannot substitute for an in-person consultation with a lawyer. Your use of this site does not create an attorney client relationship.


By 7051980283 05 Jul, 2017
Before its summer recess, the New Jersey Senate passed S-1238, which wouldpermit legally binding gestational carrier agreements. Couples who cannot conceive and carry a baby in the usual way may wish to hire a surrogate to carry another woman's fertilized egg to term. At present there are no laws which permit such an arrangement in new Jersey, and agreements for gestational surrogacy will most likely not be upheld by the courts. For practical purposes, this does not prevent surrogacy from happening, but it does mean that the parties may not be protected in the rights they bargained for. The bill's sponsor, Senator Joseph Vitale reports that there are 12 states, plus the District of Columbia, which permit and regulate gestational surrogacy contracts: Arkansas, Delaware, Florida, Illinois, Nevada, New Hampshire, Tennessee, Texas, Utah, Virginia, Washington state and Wisconsin, along with the District of Columbia.

On June 27, the New Jersey Law Journal quoted Senator Vitale's statement:
 "For men and women who are looking to start or expand their families but have struggled to do so through traditional means, surrogacy  
 offers an alternative path to having children. As science advances, and more couples turn to surrogacy, gestational carrier agreements are
 imperative to protect the interests of all parties involved, including the carrier, the intended parents and the child."

Governor Chris Christie has vetoed similar legislation twice, and may do so again. Governor Christie stated that he felt more study was required into the legal and ethical ramifications of surrogacy.

In the Baby M case,  In re Baby M , 109 N.J. 396 (N.J. 1988)the NJ Supreme Court invalidated a surrogacy contract, giving the surrogate/birth mother parenting rights with the child.  Baby M's birth mother was in fact also the biological mother, since it was her egg that was fertilized with the father's sperm. In a later case, a NJ Court upheldparentalrights for a gestational carrier even where a donated egg was used.

The NJ Law Journal reports that under the bill
 "the gestational carrier must be at least 21 years old, have already given birth to at least one child, and have completed both medical and
 psychological evaluations. The intended parents would be required to have completed a psychological evaluation to determine their
 suitability to enter an agreement, and to have retained an attorney to advise them about the terms and potential legal consequences of
 entering into an agreement. The agreement would have to clearly state that the gestational carrier would agree to undergo pre-embryo
 transfer, to attempt to carry and give birth to the child, and to surrender custody of the child to the intended parent immediately on the birth
 of the child. The agreement would allow for the gestational carrier to choose her own medical care for the pregnancy, labor, delivery and
 postpartum care. The agreement would not be considered an adoption, a surrender of custody, or a termination of parental rights."

States that do provide for surrogacy by contract often forbid compensation for the surrogacy, beyond payment of expenses of the pregnancy, birth, medical care, although some, like Florida, provide that the surrogate's living expenses may be covered. In Virginia a surrogate contract, to be valid, has to be approved in court, with a law guardian appointed for the potential child, and a home study done on the home of the intended parents, similarly to an adoption proceeding.

The concern, widely raised at the time of Baby M, that surrogacy might lead to exploitation of women's - and especially poor women's - child-bearing capability, appears to have been dealt with in the drafting of the surrogacy statutes around the country. A carefully drafted statute seeking to balance and protect the rights of the parties involved, seems to me far preferable to surrogacy happening without any regulating laws, as it is today.

 - C. Megan Oltman, Esq.

Please contact Oltman Law & Mediation (609) 924-2044, if we can help you with your family law, elder, trusts and estates or mediation needs in New Jersey.

Please note that blog posts do not constitute legal advice, but are intended for informational purposes only. They cannot substitute for an in-person consultation with a lawyer. Your use of this site does not create an attorney client relationship.



 

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