Overview of New York Surrogacy Laws
Start spreading the news…effective February 15, 2021, the state of New York has officially legalized commercial gestational surrogacy via the Child Parent Security Act (“CPSA”).With “gestational surrogacy”, the surrogate has no genetic connection to the child. This change in the law does not pertain to “traditional surrogacy”, also referred to as “genetic surrogacy”, where the surrogate’s eggs are used for conception. For many decades in New York, only altruistic surrogacy was permissible where the surrogate could only be reimbursed for her out-of-pocket expenses relating to the surrogacy. The surrogate could not receive any other payments for participating in a surrogacy matter otherwise, the agreement would be deemed void and unenforceable with other legal repercussions. This limited intended parent(s)’ who reside in New York state the ability to pursue surrogacy in their home state and also prevented surrogates based in the state of New York from proceeding under New York surrogacy laws. New York intended parent(s) were then forced to locate surrogates and perform embryo transfers in other states where surrogacy was permissible. This added to the costs of the process due to added travel and miscellaneous expenses.
The purpose of the new surrogacy legal framework in New York pursuant to Section 581-101 of the CPSA is as follows:
- The purpose of this article is to legally establish a child’s relationship to his or her parents where the child is conceived through assisted reproduction except for children born to a person acting as a surrogate who contributed the egg used in conception. This article and all governmental measures adopted pursuant thereto should comply with existing laws on reproductive health and bodily integrity.
- The recent changes to New York surrogacy laws establish rules and guidelines for surrogacy matters in the state of New York such as creating a Surrogates’ Bill of Rights (a copy of which must be provided to the gestational surrogate), which establishes legal protections for the intended parent(s), sets criteria required in the parties surrogacy agreement, and revises New York laws to eliminate previous barriers involved in the second parent adoption process. The New York Surrogates’ Bill of Rights addresses various protection categories such as health and welfare decisions, independent legal counsel, health insurance and medical costs, life insurance, and termination of surrogacy agreements.
New York surrogacy laws require that in order to utilize New York surrogacy laws, the intended parent(s) must reside in New York for at least 6 months prior to engaging in the surrogacy agreement, or the surrogate is located in New York. Any type of intended parent seeking to pursue surrogacy can legally work with a surrogate in New York, therefore, the intended parent(s) can be married, unmarried, single, or LGBTQ singles and/or couples. The intended parent(s) can also proceed with an embryo created from their own genetic material, or donor egg, donor sperm, or with no genetic connection at all using donated embryo(s).
New York surrogacy laws set out very specific requirements as to what must be included in the surrogacy contract between the parties in order for the agreement to be valid and enforceable. For example, per New York surrogacy law, the gestational surrogate has the right to the following protections to be paid for by the intended parent(s): (i) comprehensive health insurance policy for her medical care relating to the pregnancy through the entire pregnancy and 12 months after the pregnancy ends, (ii) a disability policy, (iii) a life insurance policy with certain coverage requirements, (iv) comprehensive health insurance policy that covers mental health counseling, and (v) compensation for legal fees. The surrogate also has additional rights outlined in New York surrogacy laws which must be included in the surrogacy contract such as the right to select her health care professionals, the right to terminate or continue a pregnancy, and the right to receive compensation which must be held in an independent escrow account subject to the jurisdiction of New York courts, just to name a few of the other protections. Many of these legal requirements are best practices in other states, however, New York was the first state to legally mandate these protections to be required within the parties’ New York surrogacy agreement.
To ensure that the parties fully understand their rights and obligations of the New York surrogacy agreement, it is required by New York surrogacy law that the intended parent(s) and the surrogate (and her spouse, if applicable) be separately represented by their own New York licensed attorney for the drafting of the contract and its execution whereby the intended parent(s) will pay for both lawyers. It has always been a best practice established by the American Society for Reproductive Medicine for intended parent(s) and surrogates to have separate legal representation, however, the New York law codifies this best practice in the CPSA. The CPSA establishes a unique legal protection in requiring the intended parent(s) to have estate-planning documents in place before an embryo transfer takes place to ensure, for example, that they have a will naming a legal guardian in the event of death of the intended parent(s) to care for the child and perform the obligations of the surrogacy contract.
The New York court where the parentage proceeding is filed requires some connection to the matter, so the parentage proceedings may be filed in the county where the intended parent(s) live, the county where the surrogate lives, or where the child is ultimately born. There are additional notice requirements for the entered parentage court order, which include but are not limited to submitting the parentage court order to the hospital where the child is born and the New York State Health Department where the birth certificate will be amended to reflect the information on the parentage order (i.e. listing the intended parent(s) as the legal parents(s) of the child(ren)).
In addition to the laws regarding surrogacy revised in the CPSA, New York is the first state to license surrogacy programs (otherwise referred to as matching programs or surrogacy agencies) that match intended parent(s) with potential gestational surrogates by establishing certain licensing requirements for said matching programs doing business in New York through the New York Department of Health. The guidelines regulating New York matching programs prohibit matching agencies from providing legal services to the parties which law is also unique to New York.
New York Egg, Sperm, Embryo Donation Laws:
New York egg, sperm, and embryo donation laws were further defined by the CPSA, and are governed, in part, by Section 581-302 of the CPSA. Some examples of additions to the new law are that the CPSA sets out a legal framework for defining the status of a donor, establishes parentage proceedings for children conceived through assisted reproduction, and further clarifies the documentation to evidence a donor’s intent to donate genetic material. For known donations, a contract between the intended parent(s) and the donor is critical to set out the various terms of the donation, including but not limited to the donor agreeing that prior to conception, the donor has no parental or proprietary interest in the genetic material being donating.
Path to Parenthood Via Surrogacy Across the United States:
Each state has different legal frameworks and paths to parenthood by means of surrogacy. For example, there are many states in the United States with a structured legal framework governing the surrogacy processes such as Florida, California, Illinois, New Jersey, Texas, and now New York – just to name a few. Some states have no laws regarding surrogacy, such as Georgia, however, the process can continue in Georgia based on the best interest of the child standard and other case law. Within most parts of the United States, intended parent(s) can find a path to parenthood via surrogacy either based on codified surrogacy laws, guidance from parentage acts, case law or other forms of state regulation. It is critical for any intended parent pursuing surrogacy in the United States to consult with an assisted reproductive attorney at the beginning of the process to get an overview of the applicable state’s legal process.
When to Involve a New York Surrogacy Lawyer:
It is certainly helpful for any potential intended parent(s) or surrogate to consult with a New York surrogacy attorney to learn about the legal risks and processes before embarking upon any surrogacy matter. The legal process may vary or be more restrictive depending on whether an intended parent is single, LGBTQ, compensating a surrogate, or using a donated embryo, just to name a few scenarios that may complicate the process from state to state. Each state has different laws or regulations regarding surrogacy and with the new changes to the New York surrogacy laws, an intended parent will want to make sure that they can legally proceed under New York or a different state’s surrogacy laws.
Intended parent(s) can locate a potential surrogate either through self-matching efforts by knowing a potential surrogate (family, friend, co-worker, etc.), by various self-matching social media platforms, or by word-of-mouth. The more common way intended parent(s) are matched with qualified surrogates is through a surrogacy-matching agency. As stated above, for a surrogacy matter in New York, the surrogacy agency must be a New York-licensed surrogacy agency. It is important that while the intended parent(s) look for a potential surrogate they also have or are working towards creating the embryo(s) for the medical process which may include utilizing the intended parents’ genetic material or procuring a donor egg, sperm, or even donated embryos.
Most surrogacy lawyers are officially retained and start preparing the surrogacy contract once the intended parent(s)’ chosen surrogate is medically approved by the intended parent(s) reproductive doctor and psychologically approved by a mental health professional who has experience with third-party assisted reproduction. The intended parent(s)’ reproductive doctor will analyze the surrogate’s overall health and prior pregnancies and must follow certain FDA requirements to ensure she is fit to act as a surrogate for the intended parents. Both the medical and psychological approval will be paid for by the intended parent(s), including any travel required for the surrogate to travel for said screenings. For any surrogacy matter, and as required by New York law for New York surrogacy matters, the intended parent(s) will be represented by their own attorney to draft the surrogacy contract, and the intended parent(s) will pay for a separate New York surrogacy attorney to represent the surrogate (and her spouse/partner, if applicable) for the review of the surrogacy agreement.
Greenspoon Marder’s surrogacy practice group is honored to assist intended parent(s) or surrogates with surrogacy matters based in New York. Greenspoon Marder can also assist with New York-based estate planning needs, which estate planning services are required under New York surrogacy laws. Greenspoon Marder’s Third Party Assisted Reproductive Technology Practice Group can assist with surrogacy matters based in New York, with our New York office centrally located in Manhattan near the Museum of Modern Art and the Gershwin Theater.
