New Law Facilitates Adoptions Involving Assisted Reproduction

Jan 17, 2020 | Written by: Diana N. Fredericks, Esq. | Share

Newly passed NJ Senate Bill 3528[1] has established a process to obtain an expedited judgement of adoption for a spouse or civil union partner of a biological or legal parent of child when both parties are named as parents on the child's birth certificate.  The bill was signed into law on January 13, 2020 and becomes effective April 1, 2020. 

Currently, the spouse or partner in civil union who may not be biologically related to a child conceived through assisted reproduction may be named as a parent on the child's birth certificate issued in New Jersey, but is still required to complete an adoption to confirm legal parentage.  This bill provides a process through which spouses and partners in civil union can obtain a judgement of adoption that reflects that both spouses or partners in civil union are legal parents of the child.

As long as one spouse or partner in civil union is either a biological parent or a person treated by State law as a legal parent of a child conceived through the use of assisted reproduction and born during the marriage or civil union, the other spouse or partner in civil union can seek a judgement of adoption from the court in lieu of pursuing a confirmatory adoption.

The judgement of adoption would confirm the parental rights of the other spouse or civil union partner who may not be genetically related to the child, and the bill refers to the parental rights confirmed through this process as those of "co-parent."

The bill defines "assisted reproduction" as medical procedures to facilitate human reproduction that involve human gametes or pre-embryos, including, but not limited to artificial insemination, in vitro fertilization, embryo transfers and similar procedures. The term shall not include the use of assisted reproduction in connection with a gestational carrier agreement pursuant to the "New Jersey Gestational Carrier Agreement Act," P.L.2018, c.18 (C.9:17-60 et al.).

The bill provides that a couple may jointly file a complaint for a judgment of adoption with the Superior Court of the county where they reside or where one of the parties to the action resides. The complaint is to include: proof of a valid civil union or marriage between the individuals issued prior to the birth of the child; an original birth certificate issued by the State Registrar of Vital Statistics on which both individuals are listed as parents of the child; and a written declaration signed by both individuals that describes in sufficient detail how the child was conceived and identifies any other involved parties so that the court may determine whether those individuals may have parental rights to the child. The term "co-parent" would refer to either or both spouses or partners.

The bill provides that the court, if it determines that the parental rights of any other individuals have been relinquished, is to issue a judgement of adoption confirming both current or former partners in civil union or current or former spouses as the legal parents of the child, without the need for an appearance by the parties. The bill further provides, if the court determines that another individual may have parental rights to the child, the court is to order and conduct a hearing on the matter, providing notice to all parties, before issuing a judgement of adoption.

Per the bill's provisions, no home study or background check may be required by the court in order to issue a judgement of adoption pursuant to this process, and this process would not be available to the intended parents of a child born to a gestational carrier pursuant to the provisions of the "New Jersey Gestational Carrier Act," P.L.2018, c.18 (C.9:17-60 et al).

Birth certificates are administrative records and do not confer parentage rights. The U.S. Supreme Court's 2017 decision in Pavan v. Smith, 137 S. Ct. 2075 (2017), held that states cannot treat married same-sex couples differently from opposite-sex couples where the issuance of birth certificates is concerned. 

This new law provides for a simple and streamlined process to confirm legal parentage through adoption for married and civil union couples.

[1] https://legiscan.com/NJ/text/S3528/2018