Surrogacy & Assisted Reproductive Technology

• Florida Surrogacy Laws

  Overview of Florida Surrogacy Law

  Welcome to the Sunshine State. Florida has beaches, the Everglades, 75-degree winters, and… legalized surrogacy. Before diving into a surrogacy journey, it is important to get your feet wet and understand the legal processes involved in your applicable state. Below are the guidelines for the state of Florida. Each state has different laws, or no laws at all that govern surrogacy; in some states it is considered a crime to compensate a surrogate. Florida is a surrogacy friendly state. In Florida, anyone who wants to pursue surrogacy, whether you are married, single, same sex couple, or a person or couple using donor egg, donor sperm, or donated embryos can legally pursue surrogacy and have a clear path to parenthood.

  Keep in mind that this guide on Florida surrogacy law pertains to “gestational surrogacy” where the surrogate does not have a genetic connection to the intended parent(s)’ child. When contrasting “gestational surrogacy” to “traditional surrogacy” where a traditional surrogate is genetically related to the child, there is a different legal process altogether within Florida’s adoption laws.

  Once you are matched with a Florida surrogate, either through a surrogacy agency or via a self-match and after your chosen surrogate receives full medical approval by the IVF clinic and psychological approval by the mental health professional, it is officially time to start the legal agreement between the intended parent(s) and surrogate (and her spouse/partner, if applicable). In Florida, the surrogacy legal process is divided into two (2) main stages:

  • the Florida Gestational Surrogacy Agreement entered into and is between the intended parent(s) and the surrogate and her spouse (if applicable); then
  • the Florida Parentage Proceedings occurs to place the intended parent(s) on the birth certificate, to the exclusion of the surrogate.

  We will dive into the 2 main legal stages below. Grab your sun gear, your notepad, and your Florida reproductive attorney and let’s jump into the Florida surrogacy legal process.

  The Florida Gestational Surrogacy Agreement:

  The Florida gestational surrogacy agreement is generally drafted once the surrogate has full medical approval from the intended parent(s)’ in vitro fertilization (IVF) physician and full psychological approval from the mental health professional. Both screenings are paid for by the intended parent(s). The intended parents(s) will be represented by their own reproductive attorney. It is best practice for the intended parent(s) to pay for a separate reproductive attorney to represent the surrogate to review the gestational surrogacy agreement with the surrogate and if applicable, the surrogate’s spouse/partner. Florida law requires a binding and enforceable gestational surrogate agreement to be in place prior to engaging in gestational surrogate and all parties involved must be 18 years of age or older.

  While the intended parent(s) do not need to be based in Florida to utilize Florida’s surrogacy laws (intended parent(s) are many times located around the United States or around the world), the surrogate living and delivering in Florida will allow the use of Florida’s surrogacy laws.

  Florida surrogacy law permits the intended parent(s) to pay the surrogate for her reasonable living, legal, medical, psychological, and psychiatric expenses that are directly related to prenatal, intrapartal, and postpartal periods of the pregnancy. Florida surrogacy laws are clear that after birth the intended parent(s) must assume rights to the baby and conversely, that the surrogate terminates any parental rights to the baby. The surrogate cannot change her mind and keep the baby in Florida unless the baby is her genetic child(ren) (i.e., she had intercourse and conceived at a time she was prohibited from doing so which would also result in a breach of the gestational surrogacy agreement).

  In addition to the financial points that are included in the Florida surrogacy agreement and are typically establish during the matching process, a Florida gestational surrogacy agreement addresses many different topics such as confidentiality, future contact, assumption of risks, how many embryos will be transferred at each embryo transfer attempt, how many embryo transfers can occur, as well as all parties understanding on whether an abortion or selective reduction will occur if requested by the intended parent(s) or needed for the life or safety of the surrogate. Florida surrogacy law requires certain representations in the surrogacy agreement such as the intended parent(s) agreeing that the gestational surrogate shall be the sole source of consent with respect to clinical intervention and management of the pregnancy and that the gestational surrogate agrees to submit to reasonable medical evaluation and treatment and to adhere to reasonable medical instructions about her prenatal health.

  It is important for intended parent(s) to consult with an experienced reproductive attorney licensed in Florida prior to starting the surrogacy process. One of the first determinations is whether the parties have the appropriate connections to Florida to utilize Florida surrogacy laws. Florida has a unique provision in Florida’s surrogacy laws that requires a medical necessity to pursue surrogacy in Florida. This is determined, within reasonable medical certainty, by a licensed physician who makes a medical determination that the intended mother cannot gestate to term, or if a pregnancy would be a risk to the physical health of the intended mother or a risk to the health of the fetus. Another important consideration is the applicable Florida surrogacy laws differ depending on the facts of the case. One set of Florida laws governs surrogacy for married couples using the genetics of at least one member of the intended parent(s) (this is governed under Florida Statutes 742.15) and another set of Florida laws governs surrogacy arrangements for single intended parents, unmarried intended parents, or intended parent(s) using donated embryos (this is governed under Florida Statues 63.213). Regardless of the Florida laws utilized, surrogacy is possible for everyone in Florida.

  Once the gestational surrogacy agreement is fully executed by the intended parent(s) and surrogate and her spouse/partner (if applicable), the intended parent(s)’ attorney will issue a legal clearance letter to the IVF clinic to allow the embryo transfer cycle to proceed.

  The Florida Parentage Stage of Surrogacy:

  In Florida, the intended parent(s) will be placed on the Florida birth certificate following a statutorily based court proceeding that occurs immediately after the birth of the child(ren). Once the child(ren) is born in Florida via surrogacy, Florida surrogacy law requires that within 3 days of the birth, the intended parent(s) petition the selected Florida court for a post-birth court order directing the Florida Department of Vial Statistics to issue a birth certificate naming the intended parent(s) as the sole legal parent(s) of the child(ren). Once the final court order is entered following the birth of the child(ren), the Florida birth certificate in the name(s) of the intended parent(s) is issued shortly thereafter to the intended parent(s). The birth certificate will allow the intended parent(s) to obtain a Social Security number and United States Passport for the child(ren). The court proceedings in Florida are treated with the highest level of confidentiality to protect the privacy of all parties involved. All hearings in Florida are held in closed court and the pleadings and information filed with the court are sealed. The intended parent(s) and surrogate and her spouse/partner (if applicable) likely will not be required to attend the hearings relating to the parental right actions referenced above however this would be a determination to be made by the intended parent(s)’ reproductive attorney and the applicable jurisdiction involved in the matter.

  While the court proceedings required to place the intended parent(s) on the Florida birth certificate are obtained after the child(ren) is/are born, it may be beneficial to discuss with your Florida reproductive attorney the option of additionally obtaining a Florida pre-birth order around the second trimester of pregnancy to provide to the hospital in advance of the delivery to ensure a smooth delivery process. The post-birth court order is what allows a Florida birth certificate to be issued removing any reference to the gestational surrogate from any birth record and naming the intended parent(s) as the sole legal parent(s) of the child(ren). The surrogate’s name will not be placed on the Florida birth certificate.

  Elton John is notorious for building his family via surrogacy. He once sang about Florida with his lyrics, “I hear it’s hot in Florida. And it’s raining here tonight. But the sun’s gonna shine tomorrow. And I’m gonna do alright.” Elton, you are right about Florida and that also goes for the Florida surrogacy process, the sun is going to shine on your Florida surrogacy journey and in following best surrogacy practices, your “gonna do alright!”

  Greenspoon Marder’s surrogacy practice group is honored to assist intended parent(s) or surrogates with surrogacy matters based in Florida.  Greenspoon Marder can also assist with Florida based estate planning needs, which estate planning services are a best practice for Florida surrogacy matters. Greenspoon Marder’s has offices located throughout Florida (https://www.gmlaw.com/offices/) with offices located in Boca Raton, Fort Lauderdale, Miami, Orlando, Tallahassee, Cypress Creek, and West Palm Beach.

• California Surrogacy Laws

  Overview of California Surrogacy Law

  Around 1848, news of gold in California brought approximately 300,000 people to California from the United States and around the world as part of the famous “gold rush”. In 2012, California was one of the first states to pass laws (California Family Code sections 7960, 7961, and 7962), legalizing gestational surrogacy and establishing best practices for surrogacy, which in turn has created a similar impact as the gold rush, in that, California is one of the most surrogacy friendly states bringing people from around the United States and the world to legally proceed with surrogacy in California.

  Prior to the passage of the California surrogacy laws, California was the first state where the California Supreme Court upheld the parental rights of intended parents pursuant to a gestational surrogacy arrangement and enforced a surrogacy agreement (where at the time, the climate in the United States in large part criminalized surrogacy). In the case of Johnson v. Calvert, 5 Cal.4th 84, 19 Cal.Rptr. 494 (1993), the California Supreme Court granted custody of a child born via surrogacy to the intended parents who created embryos using their own gametes and had those embryos transferred into a gestational surrogate. Additionally, in In Re Marriage of Buzzanca, 72 Cal.Rptr.2d 280 (1998), the California Court of Appeals recognized intended parents as the legal parents of a child born as a result of a gestational surrogacy agreement involving egg and sperm donors not genetically related to the intended parents based on the intent of the parties’ gestational surrogacy agreement as a matter of public policy.

  California surrogacy laws govern the requirements of the gestational surrogate, and requirements of the intended parent(s), and provide certain provisions that must be included in a California gestational surrogacy agreement.

  California Surrogacy Law Requirements of Surrogate:

  • must be represented by separate independent licensed attorney of her choosing

  California Surrogacy Law Requirements of Intended Parents:

  • must be represented by separate independent licensed attorney of Intended Parent(s)’s choosing
  • an intended parent in California means an individual, married or unmarried, who manifests the intent to be legally bound as the parent of a child resulting from assisted reproduction

  California Surrogacy Law Requirements for Surrogacy Agreement: A California surrogacy agreement must include the following provisions based on California surrogacy law. A properly drafted California surrogacy agreement shall contain many other provisions based on best practices and provisions typically provided in a surrogacy agreement however the following are some of the notable legal requirements of what must be included in a California surrogacy agreement:

  • Prior to the surrogate undergoing the embryo transfer or starting injectable medications in preparation for an embryo transfer, the parties must execute a dated gestational surrogacy agreement, notarized or witnessed per California law, specifying the genetics of the embryo and the identity of the intended parent(s)
  • Based on California Family Law section 3030, California surrogacy agreements typically include a representation that intended parent(s) have not been convicted of a crime with a sexual component such that the intended parent(s) is a registered sex offender or would be required to register as a sex offender under any state or federal law in the United States or an intended parent’s home country

  California Pre-Birth Parentage Proceedings:

  The parentage proceedings, to confirm the parental rights of the intended parent(s), are filed prior to the birth of the child in California by obtaining a pre-birth order. Pre-birth parentage court proceedings in California can take place in (1) the county where the child is anticipated to be born, (2) the county where the intended parent(s) reside, (3) the county where the surrogate resides, (4) the county where the surrogacy agreement is executed, or (5) the county where the embryo transfer occurred. The California pre-birth order shall establish the parent-child relationship of the intended parent(s) identified in the surrogacy agreement and shall establish that the surrogate, her spouse, or partner is not a parent of, and has no parental rights or duties with respect to, the child or children.

  California is a surrogacy-friendly state which provides a clear path to parenthood for those proceeding with surrogacy in California. Consult with a California surrogacy attorney to determine if California surrogacy law applies to your journey. Greenspoon Marder’s surrogacy practice group is honored to assist intended parent(s) or surrogates with surrogacy matters based in California. Greenspoon Marder’s has offices located in Los Angeles, California.

• Illinois Surrogacy Laws

  Overview of Illinois Surrogacy Law

  While Chicago, Illinois, the Windy City, is famous for its deep-dish pizzas and the Cloud Gate “bean” sculpture in Millennium Park, Illinois is also known for its progressive and surrogacy-friendly laws, making it one of the most accommodating states for surrogacy arrangements.

  The Illinois Gestational Surrogacy Act (the “Act”) ((750 ILCS 47/5)Sec. 5) establishes the legal requirements of a gestational surrogacy arrangement under Illinois law. According to the Act, “the purpose of this Act is to establish consistent standards and procedural safeguards for the protection of all parties involved in a gestational surrogacy contract in this State and to confirm the legal status of children born as a result of these contracts. These standards and safeguards are meant to facilitate the use of this type of reproductive contract in accord with the public policy of this State.”

  The surrogacy legal process in Illinois is divided into two main categories: (i) the gestational surrogacy agreement established at the beginning of the surrogacy journey which is entered into after medical and psychological approval but prior to the Gestational Surrogate starting fertility-related medications, and, (ii) the parental rights process to confirm the parental rights of the intended parent(s).

  Illinois Surrogacy Agreement:

  Illinois surrogacy law has specific requirements pertaining to the surrogacy agreement which, in part, relate to requirements of the gestational surrogate, requirements of the intended parent(s), and requirements of the gestational surrogacy agreement. Certain provisions must be included in an Illinois surrogacy agreement to confirm the parental rights of the intended parent(s). In addition to the legal requirements of an Illinois surrogacy agreement, the parties’ surrogacy agreement will contemplate other standard “best practices” provisions that go into a surrogacy agreement such as, how many embryo attempts the surrogate will perform, upholding confidentiality, conditions of future contact, and other provisions recommended by your Illinois surrogacy attorney.

  Illinois Surrogacy Law Requirement of Gestational Surrogate:

  • The surrogate must be at least 21 years of age
  • The surrogate must have given birth to at least one child
  • The surrogate must complete a medical evaluation
  • The surrogate must complete a mental health evaluation
  • The surrogate must undergo a legal consultation with independent legal counsel regarding the terms of the gestational surrogacy agreement
  • The surrogate has obtained (or the intended parent(s) have obtained on her behalf), health insurance in accordance with the requirements of the Act.

  Illinois Surrogacy Law Requirements of Intended Parent(s):

  • • At least one member of the intended parent(s) must have a genetic connection to the embryo (i.e. the egg or sperm of at least one of the intended parents)
    • The intended parent(s) demonstrate a medical need for surrogacy as evidenced by a qualified physician’s affidavit
    • The intended parent(s) must complete a mental health evaluation
    • The intended parent(s) must undergo a legal consultation with independent legal counsel regarding the terms of the gestational surrogacy agreement

  Illinois Surrogacy Law Requirements of Illinois Surrogacy Agreement: the gestational surrogacy agreement must satisfy the requirements of the Act which includes, in part, some of the following requirements:

  • The surrogacy agreement shall be in writing, witnessed by 2 competent adults, and executed prior to the commencement of any medical procedures (not including medical and mental health screenings to qualify the surrogate to proceed as a surrogate), and shall include as parties to the agreement the intended parent(s) and the surrogate and her spouse (if applicable) each represented by separate counsel
  • Use of an independent escrow account if the surrogate is receiving the payment of compensation
  • Representations from the gestational surrogate that she agrees to undergo an embryo transfer, attempt to carry and give birth to the child, surrender custody of the child to the intended parent(s) upon birth, and that she has the right to use the services of a physician of her choosing (in consultation with the intended parent(s)) for her care during the pregnancy. The Act requires similar representations if the surrogate is married to the surrogate’s spouse.
  • Representations from the intended parent(s) to assume custody and sole responsibility for the support of the child upon birth.
  • The Act contains other provisions that are permissible in an Illinois surrogacy agreement, for example, the intended parent(s) paying the surrogate reasonable compensation and the surrogate agreeing to abstain from activities that the intended parent(s) or physician reasonably believe to be harmful to the pregnancy such as following certain health precautions.

  Illinois Parentage Process:

  Illinois law has a structured framework in place to establish the parental rights of the intended parent(s) in an Illinois surrogacy matter to ensure that the intended parent(s) (irrespective of gender or marital/civil union status), are placed on the birth certificate for the child(ren) and that the surrogate is not placed on the birth certificate. This relationship must be established prior to the birth of the child in accordance with Section 12 of the Vital Records Act, Section 6 of the Illinois Parentage Act of 1984, and the Gestational Surrogacy Act. In Illinois, there is not a court proceeding to confirm the parental rights of the intended parent(s), but it is in fact, an administrative process that can be handled by the intended parent(s) attorney in coordination between the hospital and Illinois Department of Vital Records.

  The Illinois parentage process to place the intended parent(s) on the birth certificate requires specific certified statements, witnessed by two competent adults, from those involved in the surrogacy, matters prior to the birth of the child(ren) that are provided to the hospital (an original of the certifications) and copies to the Illinois Division of Vital Records such as:

  • A certified statement from the intended parent(s) and surrogate and her spouse (if applicable) that all parties received information about the legal, financial, and contractual rights, expectations, penalties, and obligations of the surrogacy agreement
  • A certified statement from the intended parent(s)’ and surrogate’s (and her spouse, if applicable) attorneys confirming the surrogacy agreement complies with the Act
  • A certified statement from a physician licensed in the state in which the embryo transfer occurred certifying that the child being carried by the gestational surrogate was conceived using the gamete or gametes of at least one of the intended parents and that neither the gestational surrogate nor the gestational surrogate’s spouse, if any, provided gametes for the child being carried by the gestational surrogate

  Illinois is a surrogacy-friendly state that provides a clear path to parenthood for those proceeding with surrogacy in Illinois. Consult with an Illinois surrogacy attorney to determine if Illinois surrogacy laws apply to your journey, however, generally speaking, Illinois surrogacy laws can be used when the surrogate is delivering in Illinois. Greenspoon Marder’s surrogacy practice group is honored to assist intended parent(s) or surrogates with surrogacy matters in Illinois. Greenspoon Marder’s has an office located in Chicago, Illinois.

• New Jersey Surrogacy Laws

  Overview of New Jersey Surrogacy Laws

  In the Broadway hit musical Hamilton, Alexander and Philip Hamilton declare, “Everything’s legal in New Jersey.” This expression even rings true regarding gestational surrogacy! Gestational surrogacy is legal in New Jersey.

  Surrogacy was not always legal in New Jersey as reflected in the famous “traditional surrogacy” case of Baby M. In traditional surrogacy, the surrogate has a genetic connection to the baby (i.e. the surrogate’s egg). What is currently legal in New Jersey is “gestational surrogacy”. In gestational surrogacy, the surrogate has no genetic connection to the child. Seinfeld fans may remember Jerry’s mechanic pulling what he called a “Mary Beth Whitehead”. In the “Bottle Deposit” episode, Jerry’s mechanic steals Jerry’s car after he feels that Jerry is not caring for the car properly. Mary Beth Whitehead, a traditional surrogate in New Jersey in the early 1980s entered into a surrogacy contract with William Stern and his wife, Elizabeth. Compensation of $10,000 was paid to Mary Beth and William’s sperm was inseminated into Mary Beth, with the use of Mary Beth’s egg, hence the reference of a traditional surrogate. The surrogacy contract provided that Mary Beth carry the pregnancy and relinquish her parental rights in favor of the Sterns. Within twenty-four hours after giving birth and transferring custody of the baby to William and Elizabeth, as required by the surrogacy contract, Mary Beth pulls a “Mary Beth Whitehead”, as referenced in Seinfeld. Mary Beth had a change of heart, chose to forsake the $10,000, and convinced the Sterns to give the baby back to her temporarily. Mary Beth fled New Jersey and went to Florida with the baby refusing to return the baby to the Sterns. Baby M, the pseudonym used in this media spectacle case of In the Matter of Baby M., 109 N.J. 396 (1988), raised the novel legal and social question about the meaning of parenthood and the ability to contract around issues of pregnancy and childbirth. The Sterns sued Mary Beth, and, following lengthy litigation, the court ultimately gave custody of the child to the Sterns with visitation rights granted to Mary Beth.

  New Jersey has specific requirements for gestational surrogacy which became more clearly defined with the 2018 Gestational Carrier Agreement Act. This New Jersey surrogacy law provides the legal framework for enforceable gestational carrier agreements and pre-birth orders in New Jersey. The New Jersey surrogacy laws are established, in part, to provide, “consistent standards and procedural safeguards to promote the best interests of the children who will be born as a result of gestational carrier agreements executed.” Gestational surrogacy is legal and enforceable in New Jersey. The surrogate must not have a genetic link to the child, meaning the egg used must come from the intended mother or an egg donor. If you’re considering surrogacy in New Jersey, it’s important to work with an experienced New Jersey surrogacy attorney to navigate the state-specific legal requirements and ensure a smooth process.

  The following are some notable legal requirements that must be included in a New Jersey surrogacy agreement. Some requirements of New Jersey surrogacy law pertain to the requirements of the surrogate, requirements of the intended parent(s), and requirements and obligations that pertain to language that must appear in the surrogacy agreement. New Jersey surrogacy laws also address the pre-birth parentage proceedings to confirm the parental rights of the intended parent(s).

  New Jersey Surrogacy Law Requirements for Surrogate:

  • Psychological Evaluation:  The gestational surrogate is required to complete a psychological evaluation approving her suitability to serve as a gestational carrier
  • Requirements of the Gestational Surrogate: The gestational surrogate must be:
    • At least 21 years of age
    • Has given birth to at least one child
    • Has completed a medical evaluation approving her suitability to serve as a gestational surrogate
    • Has completed a psychological evaluation approving her suitability to serve as a gestational carrier
    • Has retained an attorney, independent of the intended parent, but for whose services the intended parent may pay, who has consulted with her about the terms of the gestational carrier agreement and the potential legal consequences of being a gestational carrier under the terms of this agreement

   

  New Jersey Surrogacy Law Requirements for Intended Parent(s):

  • Psychological Evaluation: The intended parent(s) must complete a psychological evaluation approving the intended parent’s suitability to participate in a gestational carrier agreement.
  • Requirements of the Intended Parent(s):
    • An intended parent who can pursue surrogacy in New Jersey can be persons who are single, married, partners in a civil union or domestic partnership, and couples who are not married or in a civil union or domestic partnership.  This term shall include the intended mother, the intended father, the intended mother and intended father, the intended mother and intended mother, or the intended father and intended father
    • Intended parent(s) must be represented by an attorney who consulted with the intended parent about the terms of the gestational surrogacy agreement and the potential legal consequences of the agreement

   

  New Jersey Surrogacy Law Requirements for Surrogacy Agreement:

  • Who Signs the New Jersey Surrogacy Agreement and When the Agreement is Signed:
    • The surrogacy agreement is in writing and executed by the gestational carrier, her spouse or partner in a civil union or domestic partnership, if any, and each intended parent
    • The surrogacy agreement is executed after the required medical and psychological screenings of the gestational carrier and the psychological screening of the intended parent, but prior to the commencement of any other necessary medical procedures in furtherance of the implantation of the pre-embryo
    • The gestational carrier and her spouse or partner, if any, and the intended parent shall have been represented by separate attorneys in all matters relating to the gestational carrier agreement and each attorney provides an affidavit of such representation
  • Terms Required of Gestational Surrogate in New Jersey Surrogacy Agreement:
    • Language that the gestational surrogate shall undergo pre-embryo transfer and attempt to carry and give birth to the child and surrender custody of the child to the intended parent(s) immediately upon the child’s birth
    • Language that the gestational surrogate has the right to medical care for the pregnancy, labor, delivery, and postpartum recovery provided by a physician, physician assistant, advance practice nurse, or certified nurse midwife of her choice, after she notifies, in writing, the intended parent of her choice
    • An express term that, if the gestational carrier is married or in a civil union or domestic partnership, the spouse or partner agrees to the obligations imposed on the gestational carrier pursuant to the terms of the gestational carrier agreement and to surrender custody of the child to the intended parent immediately upon the child’s birth
  • Terms Required of Intended Parent(s) in New Jersey Surrogacy Agreement:
    • The intended parent(s) shall accept custody of the child immediately upon the child’s birth
    • The intended parent(s) shall assume sole responsibility for the support of the child immediately upon the child’s birth
  • Other Provisions in New Jersey Surrogacy Agreement:
    • The gestational surrogacy agreement shall include a provision setting forth the financial responsibilities of the parties and shall include a provision that the intended parent(s) shall pay the gestational carrier’s reasonable expenses unless expressly waived, in whole or in part, in writing by the gestational carrier
    • The breach of the gestational carrier agreement by the intended parent(s) shall not relieve the intended parent(s) of the support obligations imposed by the intended parent(s) and child relationship created by the provisions.

   

  New Jersey Parentage Proceedings:

  The New Jersey surrogacy statute sets out specific guidelines and procedures for the parentage proceedings to confirm the parental rights of the intended parent(s).

  • Parties and Agreement Must Satisfy New Jersey Surrogacy Laws: Provided that the gestational carrier, intended parent(s), and the gestational surrogacy agreement satisfy the eligibility requirements of New Jersey surrogacy laws, immediately upon the birth of the child(ren), the intended parent(s) will be the legal parent(s) of the child. The surrogate and her spouse/partner will not be the legal parents of the child(ren).
  • When and Where to File New Jersey Parentage: To establish the parent/child relationship with the intended parent(s), after the gestational carrier becomes pregnant in accordance with the gestational carrier agreement, the intended parent(s) shall file a complaint for an order of parentage with the Superior Court, Chancery Division, Family Part of the county of the child’s anticipated birth or the intended parent’s or gestational carrier’s county of residence. New Jersey surrogacy specifies what needs to be attached to the court pleadings for parentage.

   

  Greenspoon Marder’s Third Party Assisted Reproductive Technology Practice Group can assist with New Jersey gestational surrogacy matters which would generally be applicable if the surrogate resides in New Jersey and plans to give birth in New Jersey. Greenspoon Marder can also assist with New Jersey-based estate planning needs, which estate planning services are a best practice for New Jersey surrogacy matters. Greenspoon Marder has an office located in Newark, New Jersey.

• New York Surrogacy Laws

  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.

• Guardianship

  When a person becomes incapacitated and unable to care for him or herself, and there has been no prior incapacitation planning, the probate courts become involved. Judges oversee all aspects of the incapacitated person’s life; including the individual’s care and finances. This legal proceeding is known as a guardianship, and is applicable to both the elderly and to young people under the age of 18 in Florida.

  Our team represents both individuals in need of an appointed guardian under Florida law and individuals contesting the appointment of a guardian. Judicially supervised guardianships are subject to rigid statutory and procedural requirements, and our attorneys have the extensive administrative and litigation experience necessary to ensure the appointment of proper a guardian and also ensure that the guardian satisfies the state requirements.

  While many guardianship proceedings are not vigorously contested, they can become adversarial when the subject of the proceeding challenges the allegations of incapacity or when the suitability of a guardian comes into question.

  Our attorneys can assist in the following areas:

  • Contested Appointments of Guardians
  • Contested Determination of Capacity
  • Establishment of Annual Budgets
  • Guardianship Administration
  • Guardianship-Related Litigation
  • Petition for Appointment of Guardian
  • Petition to Determine Incapacity
  • Preparation of Annual Plans and Annual Accountings
  • Preparation of Initial Plan and Inventory

News & Videos

• Mar 24, 2025 The Surrogacy Space, Ep. 21 – “When Infertility Strikes Families. An Interview with Liz Somerstein, Partner at Greenspoon Marder”
• Mar 24, 2025 Tax Filing Deadline Extension for Florida Residents Affected by Hurricane Milton
• Mar 20, 2025 Celebrity Announcements of Surrogacy Delivery and Privacy Concerns
• Mar 12, 2025 Exploring Surrogacy with Brownstone Surrogacy: Insights from Jarret Zafran
• Mar 4, 2025 The Surrogacy Space, Ep. 20 – “All about Family Source Consultants (FSC)”
• Feb 19, 2025 Mental Health Evaluations in Surrogacy: Insights from Karyn Rosenberg on The Surrogacy Space Podcast
• Feb 11, 2025 The Surrogacy Space x Immigration Coffee Talk: “Will Trump’s Executive Order Affect International Intended Parents?”
• Feb 5, 2025 Navigating Surrogacy: Legal Insights and Emotional Journeys with Marla Neufeld and Jeff Kasky
• Jan 30, 2025 The Surrogacy Space, Ep. 19 – ““Interview with Director of Partner Relations at SeedTrust, a Surrogacy and Egg Donor Escrow Company””
• Jan 22, 2025 The Inclusivity of Surrogacy in Florida: A Comprehensive Guide for Intended Parents
• Jan 9, 2025 The Surrogacy Space, Ep. 18 – “Interview with Jarret Zafran, Esq, Founder and Executive Director of New York Based Surrogacy Agency, Brownstone Surrogacy”
• Jan 8, 2025 Building a Family: Myrna & Rebeca’s Journey Through Reproductive Technology
• Dec 23, 2024 The Surrogacy Space, Ep. 17 – “All About Surrogacy Simplified – Surrogacy Consultant and Concierge”
• Dec 18, 2024 Estate Planning for Surrogacy
• Dec 11, 2024 The Legal Process for Surrogacy in Florida: Your Comprehensive Guide for The Surrogacy Space
• Dec 9, 2024 The Surrogacy Space, Ep. 16 – “All About the Jewish Fertility Foundation (JFF)”
• Nov 15, 2024 The Surrogacy Space, Ep. 15 – “All About Egg Donor & Surrogate Solutions and Their Services”
• Nov 5, 2024 The Surrogacy Space, Ep. 14 – “Embryo Donation”
• Oct 17, 2024 The Surrogacy Space, Ep. 13 – “Why an Intended Parent May Need to Pursue Surrogacy Medically and What the Dr. Looks for When Screening a Surrogate”
• Sep 24, 2024 The Surrogacy Space, Ep. 12 – “What an Agency Looks for When Picking a Surrogate.”
• Aug 19, 2024 The Surrogacy Space, Ep. 11 – “What goes into a donor mental health evaluation?”
• Jun 14, 2024 The Surrogacy Space, Ep. 10 “Can I Receive Pumped Breast Milk from my Surrogate”
• Jun 10, 2024 The Surrogacy Space, Ep. 9 – with Special Guest Dr. Isabel Thompson – “Peripartum Depression”
• Jun 5, 2024 The Surrogacy Space, Ep. 8 – Featuring “Fertility Within Reach” – Advocating for Fertility Health Care
• May 16, 2024 The Surrogacy Space, Ep. 7 “Can a Family Member Act as a Surrogate in FL” – with Marla Neufeld, Esq.
• Apr 22, 2024 The Surrogacy Space, Ep. 6 – “Mental Health Evaluation – What Goes into an Evaluation?”
• Apr 22, 2024 The Surrogacy Space, Ep. 5 – “The Role of the Reviewing Attorney”
• Apr 15, 2024 Alabama’s Supreme Court Ruling & Its Impact on the Future of IVF Nationwide
• Apr 15, 2024 Alabama’s Supreme Court Ruling & Its Impact on the Future of IVF Nationwide
• Mar 25, 2024 The Surrogacy Space: Ep. 4 – Working with a Surrogate in FL – with Marla Neufeld, Esq.
• Feb 26, 2024 Understanding the Impact of the IRS’s Standard Deduction Update
• Jan 31, 2024 Tax Avoidance v. Tax Evasion – One of These is Not Like the Other
• Jan 10, 2024 Greenspoon Marder Surrogacy and Assisted Reproductive Technology Partner Marla Neufeld Featured as Guest Speaker on Good Neighbor Podcast: Cooper City
• Dec 19, 2023 The Surrogacy Space: Ep. 3 – Stepparent Adoption and Fertility – with Marla Neufeld, Esq. and Myrna Maysonet, Esq.
• Dec 14, 2023 The Surrogacy Space: Ep. 2 – Estate Planning – with Marla Neufeld, Esq. and Alan Cohn, Esq.
• Nov 29, 2023 The Surrogacy Space: Ep. 1 – Welcome Episode – with Marla Neufeld, Esq.
• Nov 1, 2023 Crypto Audits
• Oct 25, 2023 High Net Worth Audits
• Oct 23, 2023 Surviving an ERC Audit
• Jul 17, 2023 Greenspoon Marder Partner Marla Neufeld Interviewed in The Slow Newscast, Discusses Controversial Legal Precedent Set in the Field of Posthumous Reproduction
• Apr 29, 2022 Greenspoon Marder Surrogacy and Assisted Reproductive Partner Marla Neufeld Appointed to Legal Advisory Committee of Men Having Babies
• Apr 1, 2022 Surrogacy Outside of the United States and the Outfall for Ukraine Based Surrogates and Children
• Mar 2, 2022 Greenspoon Marder Surrogacy and Assisted Reproductive Partner Marla Neufeld To Be Featured on CBS Daytime Talk Show “The Doctors”
• Oct 11, 2021 Greenspoon Marder Partner Marla Neufeld Co-Authors Article for the International Centre for Family, Law, Policy and Practice Journal
• Oct 1, 2021 Greenspoon Marder Partners Manuel L. Crespo and Marla Neufeld Recognized in The American Lawyer’s 2021 Inaugural List of South Trailblazers
• Jun 28, 2021 Greenspoon Marder Partner Marla Neufeld Featured Speaker on “The Payne Hicks Beach Podcast”
• Jun 11, 2021 Overview of Embryo Donation
• Jun 10, 2021 Overview of Embryo Donation
• Mar 26, 2021 Greenspoon Marder Partner Marla Neufeld Featured Speaker for Jewish Fertility Foundation Webinar on Gestational Carrier Surrogacy & Jewish Law
• Feb 23, 2021 Greenspoon Marder Surrogacy Partner Marla Neufeld Appointed To Serve On Nova Southeastern University’s College of Law Board of Governors
• Jan 29, 2021 Greenspoon Marder Partner Marla Neufeld Featured Speaker For “Third-Party Reproduction: Sperm, Egg, And Embryo Donation And Surrogacy” Zoom
• Aug 20, 2020 Webinar: Important Legal Updates Impacting the LGBTQIA Community
• Jun 25, 2020 Surrogacy During the COVID-19 Pandemic
• Feb 25, 2020 Greenspoon Marder Partner Marla Neufeld Recipient Of The Burton Awards’ Law 360 Distinguished Legal Writing Award
• Oct 16, 2019 Greenspoon Marder Partner Marla Neufeld Feature Speaker for Resolve Meeting on Third Party Reproduction
• Jun 8, 2019 Greenspoon Marder Supports The Men Having Babies Surrogacy Conference & Expo
• Apr 10, 2019 Greenspoon Marder Hosts The NickLaus Children’s Hospital Genes & Cocktails Reception
• Mar 13, 2019 Greenspoon Marder Partner Marla Neufeld To Be Featured Speaker At The American Bar Association’s Annual Conference On Emerging Issues In Healthcare Law
• Aug 24, 2018 The Emery Co-Working & Social Club For Women Event Featuring Marla Neufeld, Esq., October 10th
• Mar 30, 2018 Greenspoon Marder Surrogacy Practice Group Recognized as an Innovative Practice Group by the Daily Business Review for 2018
• Mar 6, 2018 INCIID Webinar: Meet Surrogacy & Third Party Reproduction Attorney: Marla Neufeld, Esq., March 21st
• Mar 6, 2018 ICIID: Baby Steps to Surrogacy: An Interview with Attorney Marla Neufeld, Esq.
• Jan 17, 2018 Greenspoon Marder Promotes Two Attorneys To Partner and Senior Counsel in 2018
• Jun 15, 2017 Greenspoon Marder Senior Counsel Marla Neufeld Speaking at Assisted Reproductive Technology Presentation and Q&A
• Mar 1, 2017 Greenspoon Marder Hosts Reception Spotlighting Assisted Reproductive Technology Book At Books & Books In Coral Gables
• Dec 16, 2016 Assisted Reproductive Technology Issues and Pathways to Success Panel Discussion, January 14, 2017
• Nov 13, 2016 Greenspoon Marder is Proud to Support the 12th Annual Men Having Babies Conference in New York
• Oct 11, 2016 Marla Neufeld of Greenspoon Marder and Jeffrey A. Kasky of Kasky & Kasky Release Comprehensive Consumer Guide on Assisted Reproduction
• Jul 14, 2016 Greenspoon Marder Senior Counsel Marla Neufeld Featured on Community News and Review Program
• Jun 30, 2016 Boca Raton Synagogue’s Infertility/Miscarriage Support Group to Host Greenspoon Marder Attorney Marla Neufeld
• Jul 6, 2015 Greenspoon Marder Law Attorney Marla Neufeld Appointed to Board of Directors of Uprooted
• Apr 20, 2015 Marla Neufeld to Speak at the Broward County Matrimonial Lawyers’ Luncheon
• Feb 27, 2014 DADsquared discusses Florida Same Sex Surrogacy laws with Family Attorney Marla Neufeld
• Feb 18, 2014 Marla Neufeld Heads Up Greenspoon Marder’s Surrogacy Law Practice Group

• Feb 19, 2025 Mental Health Evaluations in Surrogacy: Insights from Karyn Rosenberg on The Surrogacy Space Podcast
• Feb 5, 2025 Navigating Surrogacy: Legal Insights and Emotional Journeys with Marla Neufeld and Jeff Kasky
• Jan 22, 2025 The Inclusivity of Surrogacy in Florida: A Comprehensive Guide for Intended Parents
• Jan 8, 2025 Building a Family: Myrna & Rebeca’s Journey Through Reproductive Technology
• Dec 18, 2024 Estate Planning for Surrogacy
• Dec 11, 2024 The Legal Process for Surrogacy in Florida: Your Comprehensive Guide for The Surrogacy Space
• Apr 1, 2022 Surrogacy Outside of the United States and the Outfall for Ukraine Based Surrogates and Children
• Jun 25, 2020 Surrogacy During the COVID-19 Pandemic