Requirements for Surrogacy in New York and New Jersey

Before a woman can commit to helping another person have a child in New York or New Jersey, she must meet the qualifications for becoming a surrogate. Being a surrogate is a tremendous commitment because of the potential medical risks, as well as the time and energy required. In fact, not everyone can or should be a surrogate; it is a process that should only be engaged in by those who are well-prepared for the challenges and rewards ahead of them.

The criteria to be a surrogate depend upon the professionals you’ll be working with during your journey. Every prospective surrogate needs to understand the requirements for being a surrogate and a surrogacy professional should be able to describe them in detail

While each professional has slightly different requirements for becoming a surrogate, there are a few common expectations every prospective surrogate must meet which are detailed in this article. For more information about the legal requirements to become a surrogate in New York or New Jersey, please contact our law firm at 914-779-1050.

ASRM Qualifications for Being a Surrogate

While there are no federal regulations and no governmental entity overseeing the surrogacy process across the United States, the American Society for Reproductive Medicine (ASRM) — an organization of assisted reproductive technology professionals — has established general guidelines for surrogacy in the United States.

The ASRM’s published guidelines set forth requirements which they believe should govern the eligibility of intended parents and surrogates and the procedures to be followed in a surrogacy arrangement. Most surrogacy agencies, fertility clinics and attorneys follow the ASRM best-practice guidelines before approving a surrogate, making sure that she:

Has completed a psychosocial evaluation and been counseled by a qualified mental health professional
Has undergone a personal and sexual history examination to screen for sexually transmitted infections and other infections
Has undergone a complete medical evaluation to ensure she is medically prepared for the surrogacy process
Is between the ages of 21 and 45 years old
Has carried at least one uncomplicated pregnancy to term
Has no more than a total of five previous deliveries or three deliveries via cesarean section
Has a stable family environment with adequate support to help her cope with the added stress of pregnancy

You can read more about the ASRM qualifications to be a surrogate here.

New Jersey Gestational Surrogate Requirements

In addition to the ASRM criteria, the New Jersey Gestational Carrier Agreement Act requires that the gestational carrier did not provide the egg used in conception and that she also meets the specific requirements set forth in the legislation. They are as follows:

“A gestational carrier shall be deemed to have satisfied the requirements… if, at the time the gestational carrier agreement is executed, she:

Is at least 21 years of age
Has given birth to at least one child
Has completed a medical evaluation approving her suitability to serve as a gestational carrier
Has completed a psychological evaluation approving her suitability to serve as a gestational carrier
Has retained an attorney, independent of the intended parent, who has counseled her regarding the terms of the gestational carrier agreement and the potential legal consequences of being a gestational carrier

Whether you are considering an independent or agency-assisted surrogacy, you will need to meet the New Jersey gestational carrier qualifications. The purpose of these requirements is to determine whether you can safely carry a pregnancy to term and whether you are prepared for the path ahead of you. In short, these requirements are for your protection. When you work with a surrogacy attorney like those at Rumbold & Seidelman, your attorney will confirm that these requirements are met before drafting a surrogacy contract.

New York Gestational Surrogate Requirements

New York law also sets forth detailed criteria regarding the eligibility of gestational surrogates. Those criteria are set forth in more detail in the Child-Parent Security Act (CPSA), but they may be summarized as follows:

The surrogate is at least 21 years of age.
The surrogate is a United States citizen or a lawful permanent resident, and where at least one intended parent is not a resident of New York State for six months, was a resident of New York State for at least six months.
The surrogate has not provided the egg used to conceive the child.
The surrogate has completed a medical evaluation.
The surrogate has given informed consent after the health care practitioner has informed her of the medical risks including the possibility of multiple births, the risk of the medications she’ll be taking, the risk of pregnancy complications, psychological and psychosocial risks, and the impact of the surrogacy arrangement on her personal life.
The surrogate, and her spouse, if applicable, have been represented throughout the contractual process and the duration of the contract and its execution by independent legal counsel of their own choosing who is licensed to practice law in New York State, and the surrogate’s legal representation shall be paid for by the intended parents.
The surrogate must have a comprehensive health insurance policy that takes effect prior to her taking any medication or commencing treatment to further the embryo transfer. The details of the required policy are set forth in the CPSA. The intended parents shall also pay for or reimburse the surrogate for all co-payments, deductibles and any other out-of-pocket medical costs incurred in connection with the surrogacy arrangement.
The intended parents shall procure and pay for a life insurance policy for the surrogate that takes effect prior to taking any medication or commencing medical procedures to further embryo transfer, that provides a minimum benefit of $750,000 or the maximum amount the surrogate qualifies for if less than $750,000.
The surrogate must meet all other requirements deemed appropriate by the commissioner of health regarding the health of the prospective surrogate.

If you are interested in becoming a surrogate in New York or New Jersey, we encourage you to contact a local fertility clinic or surrogacy agency to begin your screening and approval process. While the ASRM guidelines set forth best practices, there are times when professionals deviate from those guidelines if they feel it is justified by the patient’s circumstances.

Once you have been approved to become a surrogate and have found intended parents, our surrogacy attorneys can provide you with the legal services you require in connection with the surrogacy arrangement. Contact our law firm online or at 914-779-1050 to learn more.