Surrogacy is now legal in New York

Meet the Child – Parent Security Act

Did you know that surrogacy is now legal in New York?  This is great news because it means that there are even more avenues for New Yorkers to build families with the help of some new legislation. We’d like to take a moment to introduce you to the Child – Parent Security Act. Implemented in February 2021, the Child – Parent Security Act allows compensated gestational surrogacy and repealed the state’s previous statute which declared compensated surrogacy contracts unenforceable. Governor Cuomo commented on the legislation saying, “For far too long, LGBTQ+ New Yorkers and New Yorkers struggling with fertility were denied the opportunity to start a family because of arbitrary and archaic laws and I couldn’t be prouder of the way New York came together to say we won’t stand for this any longer, New York is a loving state and we’re proud to lead the charge for fairness and equality last year. With this law now in effect, no longer will anyone will be blocked from the joys of starting a family and raising children simply because of who they are.

What does this really mean for families in New York? That families unable to conceive biologically will be able to hire a surrogate to give birth to their child. There are no restrictions on marital status in regard to who may employ a surrogate, thus giving access to families of all shapes and sizes.

How does the law do this? The new legislation establishes legal criteria for surrogacy agreements to help provide the strong protections for both parents and surrogates and ensuring that there is informed consent at each step. The law creates a Surrogates’ Bill of Rights, to uphold the right of surrogates to make their own healthcare decisions, including whether to terminate or continue a pregnancy. These rights also mandate that surrogates have access to comprehensive health insurance and independent legal counsel of their choosing, all paid for by the intended parents. The Child – Parent Security Act creates a streamlined process for establishing parenthood when one of the individuals is a non-biological parent, through a process known as “second parent adoption.”

How does it work? The family wanting to have a child, a.k.a. the intended parents or “IPs”, do some research to find the surrogate that’s right for their needs. Typically, the IPs will connect with a surrogacy agency that they feel comfortable with. The family may choose to use any combination of egg/sperm whether belonging to the intended parents or a third-party donor, not the surrogate. From there, with the help of an attorney, the intended parents will draft a gestational carrier agreement and negotiate it with the surrogate and her attorney. This agreement will contain very detailed information about the terms of the surrogacy relationship, expectations from all parties involved, insurance, fees, costs, monetary stuff, etc. The IPs can also Petition the Court for a Pre-Birth Order (“PBO”).  Essentially a Pre- Birth Order is used to establish the legal parentage of a child born via surrogacy and is preferred by many intended parents. The Process typically begins at week 14 of the pregnancy and if the Order is granted it becomes effective at the moment of birth. A hearing will then be scheduled that the parties will attend with their attorneys. If the court finds that the gestational carrier agreement and PBO meet the specifications of New York law, the court will issue a judgment of parentage declaring that the intended parents are the legal parents of the child at the time of birth. The Court will also affirm that the surrogate and any donors are not the child’s legal parents.

Are there any restrictions? Yes, there are a few to be aware of:

  • The new law does not apply to a surrogate who uses her own egg to conceive. This is also know as “genetic surrogacy” or “traditional surrogacy.” Traditional surrogacy is still banned in the state of New York but parties may establish parentage through adoption
  • At least one of the intended parents must be a US citizen or permanent resident and a resident of New York for at least 6 months prior to the execution of the surrogacy contract. If only one intended parent has lived in New York for 6 months, the surrogate (who also must be a US citizen or permanent resident) must have been a resident of New York for at least 6 months.
  • Prior to conception, all donors must agree with the intended parent that the donor has no parental or proprietary interest in the gametes or embryos.  If the donation was initially made anonymously to a cryobank or similar facility under a doctor’s supervision, a letter from the doctor or facility explaining that the donation is anonymous will be accepted as consent.
  • IP’s must pay a gestational carrier at a “reasonable rate” for up to 8-weeks after the baby is born. Ideally, attorneys for both the IP’s and surrogate will layout the details of compensation and timelines at the beginning of the relationship. Be aware that IP’s must also pay for their surrogate’s legal fees, health, and life insurance during the pregnancy and for 1 year after birth.

Have more questions about surrogacy in New York? Give our office a call! We would be honored to help you as you plan your family.