As an assisted reproductive technology attorney representing clients in New York and New Jersey, I couldn’t be more excited to share with the Kindbody community that New York has finally passed a law legalizing paid surrogacy.
After a decade long battle in the state legislature, New York will become a surrogacy-friendly state on February 15, 2021. The Child Parent Security Act (CPSA), passed on April 3, 2020 with the support of Governor Cuomo, local politicians, and advocates, will overturn the state’s current law, which bans paid surrogacy and imposes a fine on individuals involved in the practice. This is a huge victory for New York’s LGBTQ+ community, gestational carriers (or surrogates), people experiencing infertility, and local legal/medical practitioners.
You’ll be protected under this law.
The CPSA mandates that gestational carriers and intended parents in New York will be protected by some of the strongest safeguards in the country. A New York surrogate must be 21 years old and must complete a medical evaluation before matching with a couple or an individual. The medical evaluation will typically occur at the intended parents’ IVF clinic. The CPSA is unique because it includes a Surrogate’s Bill of Rights and many protections for parents, which are discussed below.
Strict Residency Requirements.
It is important to keep in mind that before a surrogate is matched with a couple or individual, she must meet New York-specific residency requirements. 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. Because these requirements put limitations on international and out-of-state clients, there are rumblings of modifying these provisions in the state legislature. Stay tuned for any updates.
What happens after the gestational carrier is matched with an individual or a couple?
After the surrogate is cleared by the clinic, the intended parents’ attorney will draft the legal contract, called the gestational carrier agreement, in compliance with New York law and review it with the soon-to-be parents step-by-step. The surrogate’s attorney will also review the contract with her. Intended parents and gestational carriers must be represented by their own attorneys in New York. Both sides retaining their own counsel is the best way to ensure that each provision is effectively negotiated to protect the interests of all parties and that everyone understands the risks, responsibilities, and requirements of the contract.
Attorneys will make sure that any agreement includes detailed provisions, required by New York law, ensuring that the surrogate has an unfettered right to make her own health care decisions, including choosing her own doctors and whether to terminate a pregnancy.
The CPSA also requires parents working with surrogates to think about estate planning. This is a smart idea for any expecting parent. For a gestational carrier agreement to be valid in New York, parents must execute a will designating a guardian for their child before the embryo transfer occurs. The intended parents’ attorney can guide them through drafting a will and other estate planning documents that are appropriate for their family.
Compensating the gestational carrier.
According to New York law, intended parents must compensate a gestational carrier at a “reasonable rate” for up to 8 weeks after the baby is born. Attorneys on both sides will negotiate the specifics of this compensation and figure out a payment schedule everyone is comfortable with. Intended parents must also pay for their surrogate’s legal fees, in addition to health and life insurance during the pregnancy and for 1 year after birth. Once everyone agrees on the final contract language, everyone signs it. This is when the embryo transfer can be scheduled.
Securing parental rights.
New York’s new law makes the process of securing parental rights easier. A petition for a pre-birth order (PBO) may be filed by either the intended parents’ or the surrogate’s attorney (though traditionally done by the intended parents’ attorney) in a New York state court any time after the gestational carrier agreement has been executed. This usually happens during the second trimester of pregnancy. The CPSA is quite specific about which documents must be submitted to court as part of this parentage proceeding. Depending on the specifics of the arrangement, these documents may include statements or affidavits from a donor and/or fertility clinic.
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.
Catching up with the times.
This process modernizes New York parentage law. Because the new law enables parents to be named automatically on birth certificates after a PBO has been issued, the need for non-biological parents, including many LGBTQ+ parents, to officially adopt the child they had through reproductive technology is eliminated. Too often, these adoptions (called second-parent adoptions) involve a long, invasive process requiring home visits, background checks, and multiple court dates. After February 15, 2021, intended parents in New York, regardless of marital status, sexual orientation, or biological connection to the child, will typically only need to go to court once, either before or after birth, to affirm their legal parenthood. This is an incredibly important step towards equalizing the process of obtaining parental rights for parents of all sexual orientations.