When pursuing a gestational surrogacy journey, one must determine (with the help of an experienced surrogacy attorney) which state laws apply to the surrogacy agreement and the parentage proceedings. As a general rule of thumb, New York surrogacy laws can be used when the surrogate lives or plans to deliver in New York. New York state surrogacy laws can also be used when an intended parent resides in New York. New York’s surrogacy laws have a 6-month residency requirement for the surrogate or intended parent(s) as to the legal ability to utilize New York law for a surrogacy arrangement. Having a New York surrogacy attorney in a New York surrogacy matter is not only legally required under New York surrogacy laws but is in fact crucial for several reasons as set out in this article.
New York’s gestational surrogacy laws (the new laws do not apply to traditional surrogacy where the surrogate uses her own egg and carries the child), which fall under the Child-Parent Security Act (“CPSA”), are the most detailed and specific surrogacy laws of any state in the United States. The CPSA went into effect on February 15, 2021. The CPSA provides a clear legal framework for many requirements to be included in the surrogacy agreement and how the parental rights and parentage proceedings should proceed to allow for the issuance of a New York birth certificate listing the intended parent(s) as the legal parent(s). A New York surrogacy attorney can help the parties understand these laws and ensure that all legal requirements are satisfied. Additionally, New York surrogacy law requires that each party, the intended parent(s) and surrogate, be separately represented by a New York licensed attorney. The intended parent(s) would pay for both lawyers. Under New York surrogacy laws, the attorney for the intended parent(s) cannot also represent the surrogate.
Surrogacy involves detailed contracts between the intended parent(s) and the surrogate, outlining the rights and responsibilities of all parties. A New York surrogacy attorney ensures that these contracts are compliant with the numerous requirements of New York law, and each lawyer ensures that their respective client understands their obligations under the surrogacy agreement.
One of the key aspects of surrogacy is establishing the intended parents’ legal rights to the child. A New York surrogacy attorney can help secure these rights in New York before the child’s birth by obtaining a New York pre-birth order. The parentage proceedings may require an in-person or virtual hearing before a New York judge. Having a New York-based surrogacy attorney is important to ensure that the attorney’s appearance at the hearing is possible if a hearing is required. The CPSA provides a streamlined process for establishing the legal parentage of the intended parents. This includes the use of documents like the Acknowledgment of Parentage and Orders of Parentage, which help amend birth certificates to reflect the intended parent(s) as the legal parents. The New York parentage proceedings, in fact, require a certification from a New York licensed attorney that the surrogacy agreement complies with the requirements of the CPSA.
As an additional protection not typically codified in state surrogacy law, New York surrogacy law requires the intended parent(s) to execute a will prior to the embryo transfer, delineating a guardian for all such children. If the intended parent(s) reside in New York, the estate planning attorney should generally be licensed in New York, as estate planning law is generally based on the residence of the intended parent(s).
When pursuing surrogacy in New York, be sure to consult with an attorney who can practice in New York to ensure that the surrogacy processes comply with New York surrogacy laws. Greenspoon Marder can also assist with New York-based estate planning needs, which estate planning services are a best practice for a New York surrogacy matter. 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.
About Greenspoon Marder Greenspoon Marder LLP is a full-service law firm with over 225 attorneys and more than 20 office locations across the United States. With operations from Miami to New York and from Denver to Los Angeles, our firm attracts some of the nation’s top talent in key markets and innovation hubs. Our core practice areas include Real Estate, Litigation, and Transactional Services, complemented by the capabilities of a full-service firm. Greenspoon Marder has maintained a spot on The American Lawyer’s Am Law 200 as one of the top law firms in the U.S. since 2015, and our goal is to provide exceptional client service by developing a thorough understanding of each client’s business needs and objectives in order to provide strategic, cost-effective solutions.
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