What is Surrogacy in NY and NJ Like? How We Can Help

For those who wish to become parents but cannot become pregnant for whatever reason, surrogacy provides a solution. A gestational surrogate or a gestational carrier is a woman who agrees to assist others to become parents by gestating and giving birth to the intended parents’ child.  The gestational surrogate undergoes an embryo transfer with the intended parent’s embryo — typically created with at least one of the intended parents’ biological material.

This kind of assisted reproduction comes with its own legal complications. Before you even begin the medical process of surrogacy in New York or New Jersey, you should consult with an experienced legal professional who can advise you as to whether your surrogate is legally permitted to receive  financial compensation for her services. Your attorney can also advise you as to the legal risks and liabilities presented by a surrogate pregnancy.

Surrogacy agreements (or gestational carrier agreements) are not presently enforceable under the laws of New York or New Jersey.  There are, however, efforts underway in both states to allow for surrogacy agreements to become enforceable. In fact, Rumbold & Seidelman assisted in drafting the Child Parent Security Act (now pending before the New York State Legislature), which would allow gestational surrogates to be compensated and would ensure that the intended parents are recognized as the child’s legal parents at birth.

Currently, it is illegal to pay a fee to a surrogate in New York.  However, if you are fortunate enough to know a woman who is willing to carry a pregnancy for you without compensation, surrogacy is possible and legal.   Surrogacy is also legal in New Jersey but, before entering into any arrangement where a surrogate will carry a child for you, it is essential that you consult with legal counsel with experience in assisted reproduction.

Fortunately, the law firm of Rumbold & Seidelman is one of the leading legal professionals in assisted reproduction in New York and New Jersey, especially gestational surrogacy. We can help you to create a surrogacy agreement and also help you better understand the legal process of your surrogate pregnancy in New York or New Jersey.

You can call us anytime at 888-962-3001 to learn more about the services we offer for surrogacy. In the meantime, we’ve given you some important information about the surrogacy process in New Jersey and New York.

The Laws of Surrogacy in NY or NJ

Surrogacy in New York and New Jersey is a process largely dependent on the integrity of everyone involved, because, unlike in many other states, the surrogacy agreement will not control who the legal parent of the child will be at the time of the birth. In both New York and New Jersey, the gestational surrogate must affirmatively relinquish the child to the intended parents after the child is born.

Ensuring that all parties to a surrogacy agreement understand the legal risks and are properly counseled is absolutely essential and requires the involvement of experienced legal professionals to make sure all parties are pursuing surrogacy for the right reasons before moving forward.

Surrogacy arrangements require a great deal of background screening and medical testing. The parties should also undergo mental health evaluations to make sure each party is equally committed to the surrogate pregnancy. As your lawyers, we will make sure you and your surrogate are a good match for each other and completely understand the legalities of your surrogacy journey.

Even though surrogacy agreements are not legally enforceable, they are an important tool in determining whether everyone has thought through the surrogacy process and whether they are a good match with one another.  When we draft a surrogacy agreement, which is more accurately referred to as a “memorandum of understanding,” some of the issues addressed include:

  • What pregnancy-related expenses the surrogate mother will be reimbursed for
  • The medical risks associated with a surrogate pregnancy
  • The surrogate’s responsibility to take care of herself and the baby while pregnant
  • The mutual understanding regarding carrying multiples, selective reduction and the termination of a pregnancy
  • Who will be present at prenatal appointments and the birth of the child
  • The legal process required to ensure the intended parents will be recognized as the child’s legal parents as soon as possible after birth
  • Post-birth contact agreements between the surrogate mother, intended parents and the child
  • And more

New York and New Jersey allow intended parents to financially assist a gestational surrogate to the same extent that a birth parent could receive financial assistance in an adoption. In New York compensation beyond this is illegal.

Establishing Parentage in Surrogacy

In addition to creating a surrogacy agreement, legal advice is necessary to ensure that you will have parental rights to your child as soon after birth as possible. This can be accomplished by obtaining a judicial order of parentage which names you, the intended parent(s), as the legal parents of the child.

Because the laws relating to parentage in the context of a  surrogacy pregnancy in New York and New Jersey can be complicated, you will need to work with an experienced lawyer who can explain your options and protect your rights to your child.

Depending on your circumstances, you may be able to obtain a pre-birth order — which will become valid after the child is born and the gestational surrogate relinquishes her potential legal rights to the child. In some circumstances, you may be required to bring an adoption or other parentage proceeding to establish your parental rights.

What Else You Need to Know

In addition to legal experts like us, you will need to work with a fertility (IVF) clinic and medical specialists, who have expertise in working with gestational surrogates. The fertility clinic should also refer you to a mental health professional who can meet with you, the surrogate and her husband or partner to make sure everyone is prepared for the emotional journey ahead.

If you have any questions about surrogacy, whether you’ve decided or are still considering surrogacy in New York or New Jersey, you can contact Rumbold & Seidelman. We can help you get started by further explaining the legal process, referring you to the right surrogacy program or by drafting your surrogacy agreement.

For more information, call us today at 888-962-3001 or contact us online.

  • 116 Kraft Avenue, Suite 3
  • Bronxville, NY 10708
  • Tel: 914-779-1050

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