Gestational Surrogacy in New York - What You Need to Know

After a decade long battle in the state legislature, New York became a surrogacy-friendly state on February 15, 2021. The Child Parent Security Act (CPSA) passed on April 3, 2020 with the support of politicians, the New York legal community, and LGBTQ+ rights advocates, among many other supporters. The CPSA, which adds Article 5-C to the New York Family Court Act, overturned New York’s antiquated law which banned paid gestational surrogacy and imposed a fine on individuals involved in the practice. The passage of this bill was a game-changer for anyone looking to work with a surrogate (also called a gestational carrier) in New York. The CPSA, codified as N.Y. F.C.A. § 581-102 et seq., is one of the most comprehensive pieces of surrogacy legislation in the country. The CPSA provides detailed requirements for the provisions of the surrogacy contract, establishes a Surrogate’s Bill of Rights, and secures the legal relationship between children and intended parents. Click here for the full text of the CPSA.

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What are the basic requirements for a surrogacy arrangement in New York?

A New York surrogate must be at least 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.

Are there residency requirements for parties to a New York surrogacy contract?

Yes. 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 signing, or 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 intended parents, there are active efforts to modify 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 intended 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 and that everyone understands the risks, responsibilities, and requirements of the contract. Once everyone agrees on the final contract language, everyone signs it, and the embryo transfer can be scheduled.

What rights do surrogates have under New York law?

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. 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.

Your attorney will make sure that your contract includes detailed provisions, required by New York law, ensuring that any surrogate has an unfettered right to make her own health care decisions, including choosing her own doctors and whether to terminate a pregnancy.

Are there any other requirements for intended parents?

Yes. The CPSA also requires parents working with surrogates to think about estate planning, which 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.

What is the process of securing parental rights in New York?

The 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 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.

Do parents need to undergo an adoption process too?

Not typically. Because the CPSA enables parents to be named automatically on birth certificates after a PBO has been issued, the need for non-biological parents, which includes 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. So good riddance!

New York intended parents, regardless of marital status, sexual orientation, or biological connection to the child, will typically attend one court hearing to affirm their legal parenthood (so far, these have all been virtual hearings). Getting rid of the need for adoptions in the context of surrogacy is an incredibly important step towards equalizing the process of obtaining parental rights for parents of all sexual orientations.