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 may provide a solution. A gestational surrogate (also called a gestational carrier) is a woman who agrees to assist another to become a parent by gestating and giving birth to the intended parent’s child. The gestational surrogate undergoes an embryo transfer with an embryo provided by the intended parents — typically created with at least one of the intended parents’ genetic material.
Because the surrogacy process is legally complex, you should consult with experienced legal counsel before beginning the medical process of surrogacy in New York or New Jersey. If you have a particular surrogate in mind, your attorney can advise you as to whether she is legally permitted to receive compensation for her services. The 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. There is , however, a concerted effort underway to change New York law to allow for enforceable surrogacy agreements. 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 legal parents of the child from the moment of birth. Unless and until the Child Parent Security Act is passed, 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.
For many years, the law governing surrogacy in New Jersey had the same restrictions as New York. However, since the 2018 passage of the New Jersey Gestational Carrier Agreement Act, gestational carrier agreements are now legally enforceable. Since the revised New Jersey surrogacy law has very specific requirements in order for the surrogacy agreement to be enforceable, it is essential for you to consult with experienced legal counsel at the start of the process.
The law firm of Rumbold & Seidelman is one of the leading New Jersey and New York firms with expertise in the highly specialized field of assisted reproduction law, especially gestational surrogacy. Our legal services include providing you with the information you need to fully understand your surrogacy pregnancy in New York or New Jersey and drafting the required surrogacy documents.
Feel free to give us a call at 888-962-3001 to learn more about the services we offer for surrogacy. In the meantime, we hope you find the information provided on this website a useful starting point in gaining an understanding of the surrogacy process in New Jersey and New York.
The Laws of Surrogacy in NY and NJ
Surrogacy in New York is a process largely dependent on the integrity of the parties because, unlike most states, surrogacy agreements are not legally enforceable in New York. When the child is born to a New York surrogate, the surrogate is the presumptive legal mother of the child unless and until she affirmatively relinquishes the child to the intended parents.
By contrast, surrogacy agreements in New Jersey are enforceable provided the agreement between the surrogate and intended parents conforms to the requirements of the New Jersey Gestational Carrier Agreement Act. If not, the ability of the intended parents to be recognized as the legal parents of the child may depend on the good intentions and integrity of the parties.
It is essential that all parties to a surrogacy agreement understand the legal process and any potential risks they will confront along the way. Anyone considering having a child with the assistance of a surrogate in New York or New Jersey should work with legal professionals who have the experience required to ensure that things are done properly and in conformity with legal requirements.
Basic Steps in the Surrogacy Process in NY and NJ
The initial steps in the surrogacy process focus on whether the potential surrogate is medically and legally qualified. This requires the surrogate to undergo a series of comprehensive assessments including social and criminal background screening, a medical examination and medical testing to determine whether she has the capability to become pregnant and sustain a pregnancy without a risk of harm to herself or the child. She will also be evaluated to ensure that she has the mental and emotional capacity to participate in the surrogacy process and relinquish custody of the child at birth. Intended parents are also typically required to undergo mental health counseling to make sure they have thought through the process and that they have the capacity to participate in the surrogacy arrangement.
As your lawyers, we can refer you to professionals who can perform the recommended evaluations and also help you and the surrogate decide whether you are a good match for one another. We will also advise you throughout the process to address any issues which arise along the way and to ensure that you understand the legal aspects of your New York or New Jersey surrogacy journey. Guidance from a legal professional experienced in surrogacy and assisted reproduction law is necessary in every surrogacy journey, whether you live in New Jersey or New York.
Even though surrogacy agreements are not legally enforceable in New York, a written document, called a Memorandum of Understanding, is an important tool in determining whether everyone has thought through the surrogacy arrangement and whether the surrogate and intended parents are a good match. Just a few of the issues addressed in the Memorandum of Understanding include:
- The surrogate’s reimbursable pregnancy-related expenses
- The medical risks associated with a surrogacy pregnancy
- The surrogate’s responsibility to lead a healthy lifestyle during her pregnancy
- Everyone’s mutual understanding as to: the surrogate’s willingness to carrying multiples; selective reduction; and the circumstances under which she would terminate the pregnancy
- Whether the intended parents will be present at prenatal appointments and the birth of the child
- The parties’ cooperation in the legal process required to ensure that the intended parents will be recognized as the child’s legal parents as soon as possible after birth
- Any agreement between the parties regarding post-birth contact
New York state law places strict limitations on the financial assistance a surrogate may receive in connection with a surrogacy arrangement. While the intended parents may pay all medical expenses associated with the effort to become pregnant and the pregnancy itself, the surrogate may not receive any financial assistance beyond what she would be permitted to receive in a New York State adoption. In fact, New York law specifically prohibits intended parents from paying compensation to surrogates. Professionals who violate that prohibition are subject to serious sanctions.
By contrast, in addition to allowing payment of medical expenses, the New Jersey Gestational Carrier Agreement Act does not prohibit intended parents from paying a gestational surrogate reasonable living expenses throughout her pregnancy and post-partum recovery. Although the Act does not allow a surrogate to receive compensation for her services, the financial assistance a surrogate is permitted to receive for her living expenses is typically comparable to the amount surrogates receive in states where compensation is permissible.
Establishing Parentage in Surrogacy in NJ and NY
In the absence of a court order to the contrary, the surrogate will be deemed the legal parent of the child at birth and she will also be the mother named on the child’s birth certificate. The attorney for the intended parents should begin the legal process early enough in the pregnancy so that the legal pieces are in place by the time the child is born. Intended parents should have a court order recognizing them as the legal parents either at birth or shortly thereafter. As mentioned above, the law governing surrogacy arrangements in New York and New Jersey are very different.
The New Jersey Gestational Surrogacy Act allows intended parents to obtain a pre-birth parentage order which becomes effective at birth, provided the gestational carrier agreement meets state requirements. This is true regardless of whether the intended mother is genetically connected to the child. By contrast, in New York, a court will not issue a parentage order until after the child is born and the gestational surrogate relinquishes her potential legal rights to the child. Also, in cases where the intended mother is not genetically related to the child, she must bring an adoption proceeding to establish her parentage. Because the laws relating to a surrogacy pregnancy in New York and New Jersey can be complicated, you should always work with an experienced lawyer who can explain your options and establish your legal relationship to your child.
The attorneys at Rumbold & Seidelman have extensive experience in the field of reproductive law, and they are able to assist you by obtaining a court order of parentage and a birth certificate which names you as the parent.
What Else You Need to Know
In addition to retaining legal counsel, you will need to work with a fertility (IVF) clinic and medical specialists, who have expertise in working with gestational surrogates. The fertility clinic can typically refer you to a mental health professional who can complete the required mental health assessments. That professional can also perform a joint counseling session between you and the surrogate and her spouse or partner to make sure everyone is prepared for the emotional journey ahead.
If you have any questions about surrogacy, whether you’ve already settled on that path or are still in the process of considering surrogacy in New York or New Jersey, you can contact Rumbold & Seidelman. We can help you get started by explaining the legal process, referring you to appropriate and skilled professionals including, if you like, a surrogacy program and by drafting any required documentation including the surrogacy agreement.
For more information, call us today at 888- 962-3001 or contact us online.