Surrogacy in New York

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Gestational Surrogacy, the process in which a woman not biologically related to the child being born acts as the carrier through pregnancy has become an ever-increasingly popular way for people to grow their family. Since the year 2000, there has been over a 1,000% increase in its use. And with the enactment of the Child-Parent Security Act in April 2020, the process has become accessible in the state of New York.

Now, individuals and couples seeking to expand their families no longer need to venture beyond state lines to pursue surrogacy. With compensated gestational surrogacy legalized, New Yorkers have the opportunity to work with surrogates within their own borders. This shift not only offers a more accessible and convenient path to parenthood but also signifies a significant step forward in recognizing the diverse family-building options available across the state.

However, while the passage of the Child-Parent Security Act has opened doors for intended parents, understanding the nuances of surrogacy laws and processes in New York remains essential. Before embarking on this transformative journey, individuals must familiarize themselves with the legal framework and seek guidance from experienced professionals to ensure a smooth and successful surrogacy experience.

This article serves as your comprehensive guide to surrogacy in New York. We’ll cover everything you need to know, from the legality of surrogacy to the intricacies of the process itself. Whether you’re starting to research surrogacy as an option or already deep in the journey, we aim to address all your questions and concerns, ensuring you’re well-informed and empowered every step of the way. So, let’s dive in and explore the transformative world of surrogacy in the heart of New York.

Understanding Surrogacy

Surrogacy is a reproductive method in which a woman, known as the surrogate, carries a child for intended parents, either through traditional surrogacy (where the surrogate’s own egg is fertilized by the intended father or donor sperm) or gestational surrogacy (where the surrogate carries an embryo created using the egg of the intended mother or a donor).

This arrangement offers hope and possibility to individuals and couples who may be unable to conceive or carry a child due to medical reasons, same-sex couples, or single individuals desiring to become parents.

Navigating the legal landscape of surrogacy is crucial for ensuring a smooth and secure journey for all parties involved. Until recently, New York had restrictive laws regarding surrogacy, making it one of the few states where compensated surrogacy arrangements were prohibited.

However, the landscape changed significantly with the passage of the Child-Parent Security Act (CPSA) in 2020, which legalized compensated gestational surrogacy.

Under the CPSA, intended parents, regardless of marital status or sexual orientation, are now able to enter into surrogacy agreements with a surrogate mother.

The law mandates that the surrogacy agreement be in writing and outlines the rights and responsibilities of the intended parents, the surrogate, and any egg or sperm donors involved.

Moreover, the CPSA establishes a streamlined process for securing parentage rights, enabling intended parents to obtain a pre-birth order confirming their legal parental status before the child is born.

The Surrogacy Process in New York

Embarking on the surrogacy journey in New York involves several essential steps, each carefully orchestrated to ensure a positive and successful outcome for all involved. Here’s an overview of the surrogacy process in the Empire State:

  1. Initial Consultation: The journey begins with an initial consultation with a reputable surrogacy agency. During this consultation, intended parents will receive guidance on the surrogacy process, legal considerations, and available resources.
  2. Matching Process: Once intended parents have decided to proceed with surrogacy, they will undergo a thorough matching process to find the ideal surrogate to carry their child. This process typically involves reviewing surrogate profiles, video meetings, and establishing a rapport with the chosen surrogate.
  3. Medical and Legal Screening: Following the matching process, the surrogate will undergo additional medical, legal, and social screening to ensure they exceed the criteria for surrogacy.
  4. Gestational Carrier Agreement: Once the surrogate has been fully cleared for surrogacy, the intended parents and surrogate will negotiate and enter a contract that outlines responsibilities, payment terms, and more.
  5. Pregnancy and Support: Throughout the pregnancy, the surrogate will receive ongoing medical care and support to ensure her health and the well-being of the unborn child. Intended parents play an active role in providing emotional support and building a strong relationship with the surrogate during this transformative journey.
  6. Birth and Legal Proceedings: Upon the birth of the child, intended parents will work with their legal counsel to obtain a pre-birth order confirming their parental rights. This legal document ensures a seamless transition of parental rights from the surrogate to the intended parents, providing security and peace of mind for all parties involved.

Frequently Asked Questions About Surrogacy in New York

Q: Is surrogacy legal in New York?

Yes. With the passing of the Child-Parent Security Act (CPSA) which went into effect on February 15, 2021, New York law permits intended parents, gestational carriers, and their spouses to establish legally binding gestational contracts, provided they adhere to the stipulations outlined in the law.

Q: Is compensated surrogacy legal in New York?

Yes, the CPSA permits gestational carriers to be compensated for their role as a surrogate, so long as the compensation is “reasonable and negotiated in good faith between the parties.”

Q: Is traditional surrogacy legal in New York?

Under the CPSA, traditional surrogacy is only lawful in an altruistic surrogacy arrangement in which the surrogate receives no compensation outside of reimbursement for necessary pregnancy and delivery expenses. As the traditional surrogate is biologically related to the child, she holds legal motherhood status under New York law. Consequently, her consent is required for the adoption of the child by an intended parent who lacks a genetic connection to the child.

Q: Are surrogacy contracts enforceable in New York?

Surrogacy contracts are legally binding and enforceable in New York, provided they meet specific requirements outlined by the law.

While it is important to work with a reproductive attorney who will ensure all requirements and laws are followed, the below provides a basic understanding of what is required.

Surrogacy contracts in New York may not infringe upon a gestational carrier’s bodily autonomy or ability to decide on continuing or terminating the pregnancy.

A surrogate in New York must:

  • Be at least 21 years old
  • Not be the biological mother of the child
  • Undergo a comprehensive medical evaluation
  • Obtain independent legal representation
  • Possess insurance covering the pregnancy (which may be procured by the intended parents)

Intended parents in New York must:

  • Obtaining independent legal counsel
  • Both parties being signatories to the agreement (if in a relationship)
  • All intended parents, the gestational surrogate, and her spouse (if applicable) must sign the surrogacy agreement. The contract must be finalized before embryo transfer, and if compensation is involved for the surrogate, it must be held in an escrow account before the agreement signing.

Q: How is parentage established by New York Surrogacy Laws?

As established in the Child-Parent Security Act, parentage judgments can be obtained before the birth of the child, effectively establishing parental rights upon the child’s arrival. This order secures the intended parent’s legal rights to the child post-birth, terminating and superseding any assumed rights held by the gestational carrier or egg/sperm donor.

Furthermore, the Act mandates that a copy of the parentage judgment must be submitted to the Department of Health upon the child’s birth. This ensures the accurate issuance of the birth certificate, with the intended parents duly listed as the child’s legal parents.

Q: Do intended parents need to complete an adoption after birth?

Generally no. The Child-Parent Security Act enables intended parents to obtain a pre-birth order, irrespective of their biological ties to the child. However, given the potential nuances of individual cases, intended parents must consult with a seasoned New York surrogacy attorney to understand the specific requirements pertinent to their circumstances

Q: Is second-parent adoption permitted in New York?

Second-parent adoptions are recognized as lawful in New York, offering unmarried intended parents a means to assert parental rights over their child born through surrogacy.

Q: What happens if intended parents use donor egg, sperm, or embryo?

If intended parents opt for anonymously donated gametes, the legal procedures to terminate the donor’s rights are typically addressed beforehand. However, if they choose a known donor, they’ll require assistance from a New York surrogacy attorney to navigate the requisite legal protocols.

It’s crucial for intended parents to establish a written gamete donation agreement when utilizing a known donor, delineating expectations and responsibilities for all parties involved. Importantly, donors are recognized as such under New York surrogacy laws, thus relinquishing any parental rights to a child conceived through assisted reproduction.

Q: Are there any important legal considerations for same-sex surrogacy in New York?

The regulations surrounding surrogacy for same-sex couples in New York can vary depending on the judge and jurisdiction involved. As always, consulting with a reproductive attorney is advisable to gain a better understanding of and provide guidance on your situation.

The Bottom Line on Surrogacy in NY

With the enactment of the Child-Parent Security Act in April 2020, surrogacy in New York has become a legal and protected process for both intended parents and surrogates in the state. If you reside in the Empire State and aspire to embark on a surrogacy journey, you can now proceed confidently and lawfully—with the guidance of seasoned professionals like those here at Surrogate Steps.

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