Reproductive Law

Loving Male Same Sex Couple Cuddling Baby Daughter In Bedroom At Home Together

Improved medical technology, societal and legal recognition of same sex marriage, and the acceptance of differing family structures have led to dramatic changes in the way children are being conceived and born. Today, many individuals previously unable to have children can form their families with the assistance of medical technology. In many cases, they require the assistance of third parties to provide the gametes used for conception or to gestate the child. The evolution of medical science has made medical solutions far more available than before, and changes in social mores and laws have greatly expanded the universe of those who can form a family. Until recently, the law in New York and New Jersey failed to evolve along with these advances. As a result, many children had an insecure legal relationship with their parents when they were conceived through Third Party Reproduction. That changed in February 2021, when the New York Child-Parent Security Act (CPSA) took effect.

It is important to have knowledgeable counsel to advise you regarding your rights, obligations, and expectations in this very specialized area of the law. Since 1996, Rumbold & Seidelman has concentrated its practice in the area of adoption and reproductive law. Denise Seidelman and Nina Rumbold played a primary role in drafting the CPSA, and Denise was the primary liaison between the legislative bill sponsors, the Governor’s Office and the Protecting Modern Families Coalition which formed to gain passage of the bill. Prior to passage of the CPSA, Rumbold and Seidelman was counsel on a number of landmark decisions in New York which expanded legal options for those forming their family through Third Party Reproduction: Doe v. New York City Bd. of Health, 5 Misc. 3rd. 424, 782 N.Y.S.2d 180 (2004) and T.V. v New York State Department of Health, 88 AD3d 290, 929 N.Y.S.2d 139 (App Div 2d, 2011) both recognized the right of a genetic mother of a child delivered by a gestational carrier to be recognized as the legal parent without having to undergo an adoption proceeding. Rumbold & Seidelman was also counsel in the landmark case of Matter of Maria-Irene D. (Carlos A.- Han Ming T., 153 AD3d 1203 (App Div 1^st, 2017), the first case in New York to apply the marital presumption to a same-sex male couple having a child with the assistance of a gestational carrier.

For over twenty years, Rumbold & Seidelman has been at the forefront of reforming New York’s restrictive and out of date parentage laws to ensure that the parents of children conceived through Third Party Reproduction have a legally secure relationship with their children.

Regardless of what form of collaborative reproduction you are considering, we can inform you of your options and provide you with the legal counsel you require to make the best choices.

FAQ’S

What are the basic provisions of the New York Child Parent Security Act?

The CPSA establishes the parentage of children conceived or born through “Third Party Reproduction” including children conceived with the use of donor eggs, sperm or embryos as well as children born with the assistance of a gestational carrier. The bill took effect in February of 2021.

The CPSA does not apply to children conceived through sexual intercourse. Nor does it apply to children born to a surrogate who contributed the egg used in the conception; such arrangements continue to be restricted by New York’s pre-existing law.

The basic provisions of the CPSA include the following:

The CPSA establishes clear rules for determining who the legal parents of the child are and simple procedures for securing the legal relationship between the parent and child.
The CPSA is gender neutral so that the child-parent relationship is secure, regardless of the gender of the intended parents.
Intended parents who consent to assisted reproduction, with the consent of the gestating parent, are legal parents.
A child born to a gestational carrier is the legal child of both intended parents — whether or not the intended parent(s) are genetically connected to the child.
Donors who contribute the gametes (sperm, egg or embryo) used in conception are not parents.
Unmarried intended parents can obtain an order of parentage legally securing their parentage.
The order of parentage is only effective after the birth of the child.

N.Y. Pub. Health Law § 4135-b — Voluntary acknowledgments of paternity – was amended to provide a simple administrative pathway for intended parents to be legally recognized as the parents of their children born through assisted reproduction.

Does New York law prohibit having a child with a surrogate who contributed the egg used in conception?

The CPSA does not apply to the conception of children born to a surrogate who contributed the egg used in conception, typically referred to as traditional surrogacy arrangements. However, despite the very significant restrictions on these arrangements, and the severe sanctions for violating these restrictions, there is no legal prohibition against a woman carrying a child conceived with her own egg for intended parents so long as she does not receive any compensation for doing so. These situations continue to be governed by the New York law which existed prior to passage of the CPSA which renders surrogacy agreements void and unenforceable. As a result, after the child is born, the surrogate cannot be compelled to relinquish custody of the child despite her promise to the intended parents that she would do so. Payments made to a surrogate in excess of those permitted by law are subject to severe sanctions (including criminal penalties for the professional assisting in these arrangements) Despite these restrictions, there are many heartwarming examples of successful surrogacy arrangements between close relatives or friends where the surrogate has received no compensation beyond legally permissible expenses including the cost of the medical procedures and legal counsel. The intended parents and the surrogate considering a traditional surrogacy arrangement are strongly encouraged to meet with experienced mental health and legal professionals to help them assess the risks before making a commitment to one another.

How can Rumbold & Seidelman help?

Rumbold & Seidelman can assist you in the following ways:

Draft or review agreements between gamete or embryo donors and intended parents
Draft a legally enforceable Gestational Surrogacy Agreement
Obtain a Judgment of Parentage securing the legal relationship between the intended parents and child conceived through assisted reproduction or born with the assistance of a gestational surrogate
Obtain a birth certificate which names you as your child’s parent(s)
Petition for adoption where necessary to obtain legal recognition of parentage

Things You Should Know

Work with Qualified Professionals

The guidance of an New York or New Jersey attorney with expertise in these areas is essential to protect your rights and interests.

Understand Key Terms

Assisted Reproductive Technology (ART) refers to medical treatments for infertility including ovum/sperm/embryo donation and gestational surrogacy.

Third Party Reproduction (also referred to a Collaborative Reproduction) refers to the use of eggs, sperm, or embryos that have been donated by a third person (donor) to enable an infertile individual or couple (intended parents) to become parents and it also refers to gestational surrogacy arrangements.

Ovum, Sperm, Embryo Donation Agreements

Rumbold & Seidelman, LLP is experienced in representing donors and recipients in ovum, sperm and embryo donation agreements. A well-crafted agreement should address issues such as relinquishment of parental rights, confidentiality, compensation, expenses, insurance coverage and updating medical information.

Gestational Surrogacy

The New York Child Parent Security Act (CPSA) took effect in February of 2021. It affords New York intended parents and New York gestational carriers with the opportunity to enter into an enforceable compensated surrogacy arrangement and to obtain a judgement of parentage recognizing the legal relationship between the intended parents and child.
The New Jersey Gestational Carrier Agreement Act was signed into law in 2018 and provides intended parents and gestational carriers with the opportunity to enter into enforceable compensated surrogacy agreements and to obtain a judgement of parentage recognizing the legal relationship between the intended parents and child.

Traditional Surrogacy refers to an arrangement where a woman who carries a pregnancy for an individual or couple is also the genetic mother of the child.