Surrogacy in NY and NJ and 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 did not provide the egg used in conception and 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.

As of the date of this writing, surrogacy agreements are not presently enforceable under the laws of New York but that will change in February of 2021 when the Child Parent Security Act (CPSA) goes into effect. Rumbold & Seidelman assisted in drafting the CPSA and we played a leadership role in gaining its passage.

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 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 914-779-1050 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.

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. Many surrogacy matching programs have eligibility criteria for intended parents and they may also require them to undergo criminal background screening before being accepted into the surrogacy program.

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.

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 914-779-1050 or contact us online.

OBTAINING A JUDGEMENT OF PARENTAGE

Once the New York CPSA goes into effect in February of 2021, Surrogacy agreements will be legally enforceable in New York and New Jersey provided the surrogacy agreement conforms to strict statutory requirements.  The Parties should work with attorneys licensed in the state where the agreement will be enforced to ensure that the agreement meets those requirements.  If so, the parties should be able to obtain a court order of parentage, recognizing the intended parents as the child only legal parents, which will become effective from the moment of the child’s birth.

HOW WE CAN ASSIST YOU IN A TRADITIONAL SURROGACY ARRANGEMENT

The CPSA does not apply to the conception of a child born to a surrogate who contributed the egg used in conception.  However, despite significant restrictions on these arrangements, and the severe sanctions for violations, New York law does not prohibit all traditional surrogacy arrangements.  Instead, traditional surrogacy arrangements continue to be restricted as they were before passage of the CPSA. https://www.nysenate.gov/legislation/laws/DOM/A8.  What this means is that intended parents are prohibited from paying compensation to a traditional surrogate in return for her agreement to gestate a child.  It is also critical to understand that any agreement by the surrogate to relinquish custody of the child to the intended parents is void and unenforceable.  Payments made to a traditional surrogate in excess of those permitted by law are subject to severe sanctions (including criminal sanctions for the professionals assisting in these arrangements)  Despite these restrictions, there are heartwarming examples of successful traditional surrogacy arrangements between close relatives or friends where the surrogate has received no compensation beyond legally permissible expenses which include: the cost of the medical procedures, legal counsel, mental health counseling and the living expenses permitted in a New York adoption proceeding.  After the child is born, the second parent, who does not have a genetic connection to the child, will be required to adopt the child to be legally recognized as a parent.  As part of the adoption proceeding, the parties will be required to submit an affidavit to the court disclosing all payments (or promises to make future payments) made in connection with the arrangement.  Because of the significant risks associated with traditional surrogacy arrangements, anyone considering a traditional surrogacy arrangement is strongly encouraged to meet with experienced medical, mental health and legal professionals to help them understand and assess the risks before making a commitment to one another.  It is also important for the parties to meet with experienced New York legal counsel to ensure that their contemplated surrogacy arrangement fully complies with New York law.

Although traditional surrogacy agreements are not legally enforceable, 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 adoption proceeding 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 these surrogacy arrangements. 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 and paying compensation to a traditional surrogate is prohibited.

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