New York Surrogacy Laws 101: Everything You Need to Know

Before you undertake a surrogacy arrangement in New York, it’s critical for you to know if that’s the right path for you. To do that, every prospective surrogate and intended parent must understand New York surrogacy law and how it will affect their personal surrogacy journey. It is also crucial for you to work with professionals who can guide you through the process and make sure that you understand the risks and benefits of participating in a surrogacy arrangement in New York.

Fortunately, the surrogacy attorneys at Rumbold & Seidelman have the knowledge and expertise required to help. We assisted in drafting New York’s new surrogacy law, the Child-Parent Security Act (CPSA), and Denise was the primary liaison between the legislative bill sponsors, the Governor’s office, and the Building Modern Families Coalition which formed to gain passage of the bill. The requirements of the CPSA are complex and we have the knowledge and experience to guide you through every step of the process ahead. This will include explaining how New York surrogacy law will apply to your situation, drafting and finalizing the surrogacy agreement to ensure it complies with New York requirements, and taking the legal steps to ensure that parental rights are securely established as soon as possible after the child’s birth.

Whether you are a prospective surrogate or intended parent, you can contact our law firm to learn more about the legal process of surrogacy in New York and determine whether it is an option for you. Our attorneys can be reached at 914-779-1050 or online to answer your questions. In the meantime, you can find some basic information about surrogacy laws in New York below.

What is the Child-Parent Security Act (CPSA)?

The CPSA was signed into law on April 3, 2020, and it went into effect on Feb 15, 2021. The CPSA is comprehensive, addressing the parentage of all children born though third-party reproduction, with the exception of traditional or genetic surrogacy (where the surrogate uses her own egg). The CPSA is notable for the detailed protections afforded surrogates, the requirement that surrogacy matching programs doing business in New York be licensed, and the mandatory regulatory reporting requirements imposed on surrogacy programs (matching programs) and assisted reproduction service providers. While many of the provisions were included to address the strong opposition to surrogacy and egg donation voiced by some influential members of the New York Legislature, the result is that the New York CPSA is one of the most comprehensive and protective surrogacy statutes in the country.

We thank fellow adoption attorneys Rebecca Mendel and Laurie Goldheim for their important contributions to this ten-year effort, as well as the legislative sponsors, Governor’s office and staff for their devotion to this incredibly important mission. We also thank the members of the Building Modern Families Coalition, made up of a diverse group of advocates who worked tirelessly to gain passage of the CPSA.

What are the important things you’ll want to know about the CPSA?

We understand that the CPSA can be confusing, particularly because it is new, detailed and complex. Only an experienced New York surrogacy attorney can effectively advise you as to how New York surrogacy laws will affect your personal situation, but there are a few important things that you should know as you think through your options.

1. The CPSA only applies to gestational surrogacy. Traditional (genetic) compensated surrogacy agreements continue to be prohibited, severely sanctioned (indeed, criminal) and unenforceable.

2. The CPSA is gender and marriage neutral, meaning married as well as unmarried couples (same sex and different sex) and single intended parents can obtain a court order declaring them the only legal parent of their child.

3. Representation by New York legal counsel required. The parties to a New York surrogacy agreement must be represented by separate legal counsel licensed in the state of New York.

4. Surrogate’s Bill of Rights. All potential parties to a surrogacy arrangement must be provided with written notice of the Surrogate’s Bill of Rights when they consult with a surrogacy matching program

5. Who is eligible to be a gestational carrier?

The gestational carrier:

Must be at least 21 years of age
Must be a United States citizen or a lawful permanent resident
Must be a New York State resident for at least 6 months where at least one Intended Parent is not a resident
Has not provided the egg used in conception
Has completed a medical evaluation with a health care practitioner
Has given fully informed consent
Has been represented by New York legal counsel in negotiating the contract, its execution and throughout the duration of the contract
Has a comprehensive health insurance policy (as detailed in the statute) that takes effect prior to taking any medication or “commencing any treatment to further the embryo transfer.” The insurance coverage must extend throughout the duration of the pregnancy and for twelve months after the birth of the child, a stillbirth, a miscarriage, or termination of the pregnancy”.
Has a life insurance policy (the details of which are set forth in the statute) that takes effect prior to taking any medication or the commencement of medical procedures to further the embryo transfer

6. Who is eligible to be an intended parent?

At least one intended parent is a United States citizen or a lawful permanent resident
At least one intended parent has been a New York State resident for least six months
Has been represented by independent legal counsel in negotiating the contract and throughout the duration of the contract
Can be either single, married or intimate partners
Adult spouses must jointly enter into a Surrogacy Agreement unless they are living separate and apart pursuant to: a Decree or Judgment of Separation or pursuant to a written Agreement of Separation; or they document that have been living separate and apart for at least three years prior to execution of the surrogacy agreement.

7. What are the basic requirements of an enforceable Surrogacy Agreement?

The surrogacy agreement must be signed by all participants before the surrogate takes any medication or commences any medical procedures in the furtherance of embryo transfer.
The surrogate has the right to make all health and welfare decisions regarding herself and her pregnancy.
The surrogate has the right to utilize the services of a health care practitioner of her own choosing.
The surrogate has the right to terminate, reduce or continue the pregnancy.
The surrogate has the right to request and receive counseling paid for by the Intended Parents.
The intended parents and the surrogate have the right to terminate the agreement any time before the surrogate achieves a pregnancy.

8. Embryo disposition agreements between spouses/partners are enforceable

Spouses/partners with joint dispositional control of embryos can enter into a written agreement transferring legal rights and dispositional control of the embryo to only one of them. The agreement is enforceable if the parties were represented by separate legal counsel before the agreement was signed. If the couple is married, transfer of legal rights and dispositional control of the embryos can only occur after they are divorced. The person who transfers dispositional control of the embryo is not a parent of the child UNLESS they sign a writing, prior to the embryo transfer, stating that they want to be a parent.

9. You can be legally recognized as the parent of your posthumously conceived child

Where the genetic parent signs a record consenting to be a parent, if assisted reproduction were to occur posthumously, the decedent will be recognized as the child’s parent provided the record complies with the New York Trust and Estates law.

10. Matching programs operating in New York must be licensed by New York State

The CPSA requires all matching programs operating in New York to be licensed by the state. The New York State Department of Finance and the Department of Health are required to draft and implement regulations imposing “best practices” on professionals.

11. New York will create a voluntary registry of surrogates

The Department of Health is charged with creating a voluntary tracking registry to gather data on the long-term impact of surrogacy.

The CPSA is an important step forward for New Yorkers and Rumbold & Seidelman is proud to have played an important role in gaining its passage. Our attorneys can help guide you through the New York surrogacy process with as much legal protection as possible. For more information on how surrogacy laws in New York may apply to your situation, please call our law firm at 914-779-1050 or contact us online.