New York Surrogacy Laws 101: Everything You Need to Know

New York surrogacy law allows a woman to make a choice to carry a child for others; however, New York surrogacy law does not allow a surrogate to receive a fee for her efforts. Because of this, most New York surrogates are relatives or close friends of the intended parents who agree to be surrogates out of love and compassion. We typically refer to this kind of surrogacy as compassionate or altruistic surrogacy.

Before you undertake a surrogacy arrangement in New York, it’s critical for you to know if it’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 your personal surrogacy process. It is 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.

Our legal team specializes in surrogacy in New York, especially gestational surrogacy, and we can guide you through every step of the process ahead. This will include explaining how New York state surrogacy law will apply to your situation, and drafting and finalizing the legal documents to ensure that parental rights are put in place 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 888-962-3001 or online to answer your questions.

In the meantime, you can find some basic information about surrogacy laws in New York below.

Is Gestational Surrogacy Legal in NY?

One of the first questions that prospective surrogates and intended parents ask us is, “Is surrogacy legal in New York?”

The answer is yes; however, a surrogate or gestational carrier cannot receive a fee for carrying a pregnancy for others.

It’s also very important to understand that, under current law, surrogacy contracts are not legally enforceable in the state of New York. This means that the terms of a surrogacy agreement cannot be enforced in court, and the success of the process largely relies on the integrity of the parties involved. For that reason, the parties participating in a New York compassionate surrogacy arrangement must have complete trust in one another, so that they can have confidence moving forward.

Because surrogacy is not prohibited by the surrogacy laws in New York, many surrogates and intended parents have been able to complete this family-building journey in New York.  To make it a successful journey, the parties must work with experienced surrogacy professionals, such as the surrogacy attorneys at the law firm of Rumbold & Seidelman.

The attorneys at Rumbold & Seidelman have been involved in two groundbreaking New York cases recognizing the right of the intended and genetically connected mother to be recognized as the legal mother of her child without having to undergo an adoption, an intrusive and time-consuming legal process. Before those cases, adoption was believed to be the only way for the genetic mother to be recognized as a parent. Because we believed that requiring an adoption was unnecessary and unfair, Rumbold & Seidelman spearheaded efforts to change the law to ensure that intended parents, who are genetically related to the child born to a gestational surrogate, are declared the legal parents soon after birth and without an adoption.

Before any intended parent or surrogate embarks on surrogacy, they should contact our New York surrogacy attorneys to learn how the New York surrogacy process applies to their individual situation.

What are the Important Things to Know About New York State Surrogacy Laws?

We understand that the New York laws on surrogacy can be confusing, particularly because there is no specific state statute to turn to — except for the provision  declaring surrogacy contracts unenforceable. Only an experienced local surrogacy attorney can effectively advise you as to how New York state surrogacy laws will affect your personal situation, but there are a few general rules that apply to every surrogacy journey in New York.

1. Surrogacy must be altruistic.

In many states throughout the U.S., surrogates can be compensated for their services. This compensation averages around $25,000-$30,000, and the compensation a surrogate receives can help her reach financial goals like a down payment on a house, paying off student loans, or saving for her children’s education. Unfortunately, compensated surrogacy is not currently legal in New York and any New York surrogate considering this path should be aware that she will be performing this service for intended parents completely altruistically.

Although a surrogate cannot receive compensation for her services, intended parents are permitted to pay a surrogate’s legal fees and medical, counseling and pregnancy-related expenses. Even though the intended parents are paying the surrogate’s legal fees, the surrogate’s attorney works for her. This means that the surrogate’s attorney is ethically obligated to serve only the interests of the surrogate. That being said, given close personal relationships between the parties in a compassionate surrogacy arrangement, the attorneys for the surrogate and intended parents work collaboratively to achieve the mutual goals of their respective clients.

Finally, intended parents are permitted to pay a New York surrogate the living expenses she would be permitted to receive in a New York adoption. This typically includes payment of reasonable and necessary housing expenses, transportation and maternity clothing for the 60-day period prior to birth and 30 days after birth. To ensure that the parties do not run afoul of New York compensation restrictions, it’s imperative for the surrogate and intended parents to retain independent legal counsel with the expertise to guide them through this complex process. The surrogacy attorneys at Rumbold & Seidelman have the experience to know how to comply with New York’s strict legal requirements.

2. Surrogacy agreements are not enforceable.

As mentioned above, surrogacy contracts in New York are not legally enforceable. This means that, should a surrogate or intended parent change their mind during the process, the legal process for determining parentage would be complicated. To help avoid that problem, the parties should undergo counseling with a qualified professional who can help them think through the many emotional issues which may arise during the pregnancy.

Once the counseling process is complete, our surrogacy attorneys will draft a Memorandum of Understanding, which sets forth everyone’s shared expectations and understandings. As part of this process, we will ask you about your surrogacy goals and preferences to make sure that everyone is prepared for the risks and expectations that lie ahead.  Drafting and reviewing the Memorandum of Understanding with the intended parents and surrogate is an important step in ensuring that everyone is on the same page. This will provide everyone with the confidence of knowing that the process will proceed smoothly and without conflict.

While it’s disappointing and unfortunate that surrogacy contracts remain unenforceable in New York, there is rarely a problem with these arrangements given the strong emotional bond between the parties and the expert counseling and legal advice the parties have received before the surrogate becomes pregnant. Our attorneys have successfully guided many intended parents and surrogates through this journey, and they can help you, too.

3. A surrogate is presumed to be the legal parent of the child she gives birth to.

New York surrogacy laws do not allow for a “pre-birth” order declaring intended parents to be the legal parents of the child born to a gestational carrier or surrogate. Under New York surrogacy law, the woman who gives birth is presumed to be the legal mother at birth. If the intended parents are not the genetic parents of the child, they will be required to adopt. However, where the intended parents are also the genetic parents of the child and the surrogate does not object, Rumbold & Seidelman has successfully obtained orders of parentage for intended parents shortly after birth and without the need for an adoption.

Because the manner in which legal parentage is determined varies depending on the genetic relationship of the parties to the child, you should have experienced attorneys guide you through this legal process. Our attorneys have the experience to ensure that the proper legal steps are taken in your specific New York surrogacy journey.

For more information about these aspects of surrogacy laws in New York, please contact our surrogacy attorneys.

A Future for Legalizing Surrogacy in NY? We Think So

We recognize the importance of updating surrogacy laws in New York to reflect the current nature of family-building and assisted reproductive technology. Our attorneys were primary drafters of the Child Parent Security Act (CPSA), legislation that is now pending before the New York legislature which would change state law to allow for enforceable compensated surrogacy in New York. At Rumbold & Seidelman, we are committed to serving the best interests of children to ensure that they have a secure legal relationship to their intended parents at birth. The Child Parent Security Act will allow intended parents to be recognized as the child’s legal parents at birth. We encourage every New Yorker who has an interest in this issue to contact their state assemblyperson or state senator to encourage them to vote in favor of the bill.

Regardless of whether the CPSA is passed, you may still be able to participate in a surrogacy arrangement in New York.  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 888-962-3001.

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