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Surrogacy
In February 2021, the Child – Parent Security Act was passed in New York. Now, compensated gestational surrogacy is allowed and the state’s previous statute, which declared compensated surrogacy contracts unenforceable, is repealed.
This is a massive win for LGBTQ+ couples, couples struggling with infertility, and women who cannot physically carry a traditional pregnancy.
Prior to this ground-breaking legislation, compensated surrogacy was not a viable option. This provided a massive barrier to individuals and couples looking to grow their family through non-traditional methods.
While exciting, contractual surrogacy comes with some legal framework that is best understood by dedicated family law attorneys. Our New York surrogacy attorneys are passionate about surrogacy and ready to help you navigate the legal implications as you grow your family.
Families unable to conceive biologically can hire a surrogate to give birth to their child. The IP (intended parents) will need to do ample research on finding the best fit for their family and needs. Typically, the IPs will connect with a surrogacy agency who will then source and manage the surrogate for them.
The surrogacy process starts with the development of viable embryos through IVF (in vitro fertilization). An embryo is then transferred to a gestational carrier, other than the egg-donor, who will then carry the embryo to full term.
Surrogacy gives families of all shapes and sizes the ability to grow their family as there are no restrictions in relation to marital status, sexual orientation, or age, on who can hire a surrogate.
With the help of an attorney, the intended parents will need to draft and negotiate a gestational carrier agreement with the surrogate and the surrogate’s attorney. This agreement will contain detailed information about the terms of the surrogacy relationship. These terms will include expectations from all parties involved, insurance arrangements, how fees and costs relating to the pregnancy will be covered, monetary compensation, etc. The IPs can also Petition the Court for a Pre-Birth Order (PBO).
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 by the Court, it becomes effective at the moment of birth. A hearing will then be scheduled that each party will attend with their respective attorneys.
If the Court finds that the gestational carrier agreement and PBO meet the specifications of New York law the court will issue a judgement of parentage. This declares that the intended parents are the legal parents of the child commencing at the time of birth. The Court will also affirm that the surrogate and any gamete donors are not the child’s legal parents, meaning they do not have any parental rights over the child.
The new legislation establishes legal criteria for surrogacy agreements to help provide strong protections for both parents and surrogates. The law ensures that there is informed consent at each step. Additionally, the legislation created a Surrogates’ Bill of Rights to uphold the right of surrogates to make their own healthcare decisions. This also includes whether to terminate or continue a pregnancy.
The rights outlined in the Surrogate’s Bill of 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.”
Despite the increase in access to surrogacy following the 2021 passage of The Child-Parent Security Act, there are still restrictions to New York surrogacy.
The new law does not apply to a surrogate who uses her own egg to conceive. Traditional surrogacy is therefore still banned in the state of New York but parties may establish parentage through adoption.
Under New York law, the surrogate must be compensated. Intended Parents must pay a gestational carrier at a “reasonable rate” for up to 8 weeks after the baby is born. Ideally, attorneys for both the IPs and the surrogate will lay out the details of compensation and timelines at the beginning of the relationship.
Intended Parents will also need to pay for their surrogate’s legal fees, health insurance, and life insurance both during the pregnancy and for 1 year after birth.
At least one of the intended parents must be a US citizen or permanent resident of the US and a resident of the state 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 must also be a US citizen or permanent resident of the US) must have been a resident of New York for at least 6 months.
Donors must give up their parental rights. Prior to conception, all donors must agree with the intended parent(s) 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 of facility explaining that the donation is anonymous can be accepted as consent to forego parental or proprietary interest.
Have more questions about surrogacy in New York? Give our office a call. We would be honored to help you as you grow your family.
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