Legality of Surrogacy in New York

The New Law!

Good news, friends! New York will become a surrogacy-friendly state on February 15, 2021. Amid the coronavirus pandemic, the Child Parent Security Act (CPSA) passed on April 3, 2020 after a decade long battle in the New York legislature. This was a landmark victory for advocates, New York’s LGBTQ+ community, surrogates, and people experiencing infertility. The CPSA will overturn New York’s current law, which bans paid surrogacy and imposes a fine on individuals involved in the practice. If you are thinking of becoming a surrogate or intended parent in New York, we can guide you through what this long-awaited legislation means for you and your family. 

 Safeguards.

Once the law goes into effect in February 2021, gestational carriers (also called surrogates) and intended parents in New York will be protected by some of the strictest safeguards in the country. A New York surrogate must be 21 years old and must complete a medical evaluation, which will typically take place at the intended parents’ IVF clinic. After the surrogate is cleared by the clinic, the intended parents’ attorney will draft the legal contract -- the gestational carrier agreement -- in compliance with New York requirements and go over it with intended parents step-by-step. The surrogate’s attorney will also review the contract with her. Intended parents and gestational carriers must be represented by their own attorneys.

 Strict Residency Requirements. 

It is important to keep in mind that New York has specific residency requirements for surrogacy agreements. At least one of the intended parents must be a US citizen or permanent resident and a resident of New York for at least 6 months prior to the execution of the surrogacy contract. If only one intended parent has lived in New York for 6 months, the surrogate (who also must be a US citizen or permanent resident) must have been a resident of New York for at least 6 months. We will work with you to make sure that your surrogacy arrangement meets these specifications. Because these requirements put limitations on international and out-of-state clients, there are rumblings of modifying these provisions. We will keep you posted on any changes!

 Gestational Carrier Compensation. 

According to New York law, intended parents must compensate a gestational carrier at a reasonable rate for up to 8 weeks after the baby is born. Intended parents must also pay for their surrogate’s legal fees, in addition to health and life insurance during the pregnancy and for 1 year after birth. Your attorney will make sure that your contract includes detailed provisions, required by New York law, ensuring that any surrogate has an unfettered right to make her own health care decisions, including choosing her own doctors and whether to terminate a pregnancy. Once everyone agrees on the final contract language, everyone signs it. This is when you’ll get the green light for the embryo transfer.

 Securing Legal Recognition of Parentage.

New York’s new law makes the process of securing parental rights easier. A petition for a pre-birth order (PBO) may be filed by either the intended parents’ or the surrogate’s attorney (though traditionally done by the intended parents’ attorney) in a New York state court any time after the surrogacy agreement has been executed (this usually happens during the second trimester of pregnancy). Your attorney will walk you through the documents that must be submitted to court, which may include statements from a donor or fertility clinic. A hearing will be scheduled that you will attend with your attorney. If the court finds that your surrogacy agreement and PBO meet the specifications of New York law, the court will issue a judgment of parentage at this hearing declaring that the intended parents are the legal parents of the child at the time of birth. The court will further affirm that the surrogate and any donors are not the child’s legal parents. (Yay! It’s nice to have a simple process after a long journey, isn’t it?)

 Finally Catching Up With The Times!

This process brings New York parentage law up to date. Because the new law enables intended parents to be named automatically on birth certificates after a PBO has been issued, the need for non-biological parents, which includes many LGBTQ+ parents, to officially adopt the child they had through reproductive technology is eliminated. Too often, these adoptions (called second-parent adoptions) involve a long, invasive process requiring home visits, background checks, and multiple court dates. (Good riddance, we say!) After February 15, 2021, intended parents in New York, regardless of marital status, sexual orientation, or biological connection to the child, will typically only need to go to court once, either before or after birth, to affirm their legal parenthood. 

 Here For You. 

 If you have more questions about this process in New York, we’re here to guide you through each step.