Surrogacy in New York

Gestational Surrogacy in NY

New York primarily recognizes gestational surrogacy, where the surrogate is not genetically related to the child. Recent changes to laws in New York do not cover traditional surrogacy, or genetic surrogacy.

In New York, gestational surrogacy involves a woman known as a “surrogate” or “gestational carrier,” carrying a fetus with no genetic relation to her through pregnancy and delivering a baby for another individual or couple, known as the intended parent(s). Intended parents choose surrogacy for many reasons including medical considerations (infertility, cancer diagnosis, etc,) as well as personal, non-medical bases. The legal process involves a comprehensive agreement outlining the rights and responsibilities of all parties involved.

Understanding Surrogacy Laws in New York

New York has undergone significant legal changes, making compensated surrogacy legal and accessible to intended parents and gestational carriers alike. The New York Child-Parent Security Act, establishes the legal framework for New York surrogacy agreements. The law provides comprehensive instructions on how Intended Parents obtain a court order, known as a pre-birth order, establishing their parentage when working with a surrogate. Not only does the law cover surrogates that live in New York, it confirms the legality of parentage orders issued by other states if the surrogate lives outside of New York.

Surrogacy Is Legal in New York

New York State made compensated gestational surrogacy legal with a state-of-the-art law on February 15, 2021, providing a clear and supportive legal environment for intended parents and surrogates.

Why Choose Surrogacy in New York?

Legal Protections

With recent changes in the law, New York provides the strongest legal protections for all parties involved in gestational surrogacy, ensuring a secure and supportive environment throughout the surrogacy journey.

Licensed Surrogacy Agencies in New York

New York State (NYS) is the first state to license gestational surrogacy organizations (sometimes called ‘matching programs’). This is an important step in ensuring that gestational surrogacy organizations and the practice of gestational surrogacy safeguards the health and safety of the surrogate, the egg donor (if applicable), the intended parents, and the children born under gestational surrogacy agreements. Licensing gestational surrogacy organizations through the New York Department of Health and establishing specific legal protections for gestational surrogates will also help ensure that the surrogacy agreement is ethical and fair to all parties involved.

New York State also regulates Assisted Reproductive Technology Service Providers (ARTSPs) that perform any medical procedures for a gestational surrogacy agreement such as in vitro fertilization (IVF) or embryo transfer. Additional information and resources regarding how to apply for a license as a NYS gestational surrogacy organization and the regulation of ARTSPs is provided below.

Find a licensed surrogacy agency in New York.

Surrogacy Screening Guidelines

NYS Law requires health care providers who provide care to gestational surrogates to follow the Department of Health’s clinical best practices as set by national standards of professional medical organizations such as the American Society of Reproductive Medicine (ASRM) and the American College of Obstetricians and Gynecologists (ACOG). Learn more about New York surrogacy screening guidelines.

New York Child-Parent Security Act

The Child-Parent Security Act (CPSA) legalized gestational surrogacy in New York State. The CPSA went into effect on February 15, 2021. An important aspect of the CPSA is the required licensure of gestational surrogacy organizations, sometimes referred to as matching programs. In addition, the CPSA establishes protections for gestational surrogates and a simple path to establish legal parental rights for parents who rely on assisted reproductive technology (ART) to have children.

The Child-Parent Security Act represents the gold standard nationally as it provides clear guidance about the surrogacy process, benefiting both intended parents and surrogates. New York surrogacy law provides a clear and comprehensive legal framework for surrogacy agreements, prioritizing intended parents, gestational carriers, and children born through surrogacy. As such, legal parentage in New York is determined upon birth and intended parents can obtain a birth certificate from the Vital Records department directly.

Intended Parent Requirements in New York

Intended parents may be heterosexual or same-sex couples or single individuals, regardless of genetic connection to the embryo who met the following requirements:

• At least one intended parent in a surrogacy agreement must be a United States citizen or lawful permanent resident and a New York resident for at least six months.
• Intended parents must be represented by independent legal counsel.
• An intended parent may be a single adult or, if a couple, may be married or in an intimate relationship.
• An intended parent may execute a surrogacy agreement without his or her spouse if they have lived apart for three years or if they have been separated pursuant to an order, judgment or separation agreement acknowledged in the manner of a deed. [FCA §581-402(b)]
• If the intended parents are providing compensation, the funds must be placed in escrow and the agreement must also delineate how medical expenses will be covered [FCA §§581-403(f), 581-403(g)]

Gestational Surrogate Requirements in New York

To meet the New York surrogate requirements, a gestational carrier must meet the following requirements at the time the surrogacy contract is executed:

1. she is at least 21 years of age;
2. she is a United States citizen or lawful permanent resident;
3. she is a New York resident for at least six months, if one of the intended parents is not a NYS resident
4. she has not provided the egg for conception
5. she has completed a medical evaluation by a licensed health practitioner;
6. she has given informed consent after being informed of medical risks
7. she has been represented by independent legal counsel, along with her spouse, if applicable
8. has or will obtain comprehensive medical insurance and life insurance policies that take effect prior to taking medication or beginning any embryo transfers
9. any other criteria deemed appropriate by the Commissioner of Health [FCA §581-402(a)]

The surrogate’s spouse must also provide informed consent unless they have lived apart for three years or have lived apart pursuant to an order, judgment or separation agreement acknowledged in the manner of a deed.

Surrogate Rights in New York

New York State legislation mandates organizations to adhere to the New York State Gestational Surrogates’ Bill of Rights. Additionally, it is required that gestational surrogates are provided with a comprehensive overview of their rights outlined in the bill. These rights encompass aspects related to their health and well-being, access to independent counsel licensed in New York State, health insurance coverage with reimbursement for associated medical expenses, life insurance, and protections in the event of contract termination. According to New York Department of Health, the surrogate rights are detailed as follows:

Health and welfare decisions

A gestational surrogate has the right to make all health and welfare decisions regarding themself and the pregnancy. This includes:

• consent to a cesarean delivery,
• consent to a multiple embryo transfer,
• use of the services of a health care practitioner of their choosing,
• decision to continue or end the pregnancy,
• decision to keep or reduce the number of fetuses or embryos they are carrying, and
• decisions about other related health and welfare issues.

Independent legal counsel

A gestational surrogate has the right to legal counsel of their choice, paid for by the intended parent(s).

• The legal counsel must be licensed to practice law in the state of New York, and should have experience with surrogacy.
• The legal counsel represents the surrogate during development and execution of the surrogacy agreement.
• The legal counsel represents the surrogate and their interests throughout the surrogacy process.
• The legal counsel must not also represent the intended parent(s).

Health insurance and medical costs:

A gestational surrogate has the right to a comprehensive health insurance policy that covers preconception care, prenatal care, major medical treatments, hospitalization and behavioral health care.

• The insurance plan will provide coverage for the entire surrogacy period, the entire pregnancy, and for twelve months after childbirth or the end of the pregnancy.
• This insurance plan shall cover the cost of psychological counseling to address issues related to the surrogacy.
• The insurance plan is paid for by the intended parent(s).
• The intended parents will also pay for or reimburse the gestational surrogate for any co-payments, deductibles, or other out-of-pocket expenses associated with the in vitro fertilization and embryo transfer, pregnancy, childbirth, and postnatal care for 12 months after childbirth or after the end of the pregnancy
• A gestational surrogate who is not receiving compensation can decide that the intended parent(s) do not have to pay for co-payments, deductibles, or other out-of-pocket expenses of the pregnancy.

Life Insurance:

A gestational surrogate must be provided a life insurance policy that takes effect before they use any medication or begin any treatment for embryo transfer.

• The policy must cover a minimum benefit at least equal to $750,000, or the maximum amount that the gestational surrogate qualifies for, if this amount is less than $750,000.
• The policy term must cover the duration of the expected pregnancy and the twelve months after the birth of the child, a stillbirth, a miscarriage, or termination of the pregnancy.
• The surrogate has the right to choose the beneficiary or beneficiaries of the policy.
• The policy must be paid for by the intended parent(s).

Termination of surrogacy agreement:

Pursuant to Section 581-405 of Article 5-C of the Family Court Act, a gestational surrogate has the right to end a surrogacy agreement before becoming pregnant by means of assisted reproduction[1]

Common Questions About New York Surrogacy Law

Are Same-Sex Couples Eligible?

Yes, New York surrogacy laws are inclusive and apply to all individuals, regardless of sexual orientation.

Can I be an Altruistic Surrogate?

Yes, but the CSPA still applies to any surrogacy agreement including when a surrogate offers to carry a child for a friend or relation without being paid. When a person acting as surrogate does not receive compensation (altruistic surrogacy), the surrogate may waive the right to have certain expenses paid for by the intended parent(s).

Do I Have to Use A Surrogacy Agency?

No, you may have a surrogacy agreement without a surrogacy agency, but the CSPA still applies. The Gestational Surrogates’ Bill of Rights is also applicable to all gestational surrogacy agreements, even if no matching program is used. It is important to note the following laid

A surrogacy agreement may not be enforceable under New York State law if it does not comply with the CPSA. For example, if there is no written agreement and the intended parents do not compensate the surrogate, a court may need to determine who the legal parent is and whether the surrogate must be compensated.

The attorney representing each party should be licensed to practice in New York State and have specific knowledge of the CPSA and the laws that govern surrogacy agreements in New York State.

Do Intended Parents Have To Be A Resident of New York?

Not necessarily. At least one intended parent in a surrogacy agreement must be either (1) a United States citizen or (2) a lawful permanent resident and a New York resident for at least six months.

Does A Surrogate Have To Be A Resident of New York?

The CPSA only applies when the gestational surrogate resides in New York State and/or delivers the child in New York State. Intended parents can reside in or outside of New York State; however, at least one (1) intended parent must be a United States citizen or a lawful permanent resident of New York State for at least six months.

Do Intended Parents Have To Be Married?

No. Intended parents do not need to be married.

What Is A Legal Parentage?

The legal parentage process is the critical step whereby parentage is determined.

The CSPA outlines the process for obtaining a pre-birth order in New York State as well as detailing the different documents that can be used to to obtain the birth certificate, including:

• Gestational Surrogacy Agreement
• Order of Parentage
• Acknowledgment of Parentage (AoP) (the Acknowledgment of Parentage form is the document through which parents who used assisted reproduction are placed on the birth certificate when no other order of parentage has been entered).

What kind of surrogacy is covered under New York State law?

Under New York law, the existing language only applies to gestational surrogacy, not traditional surrogacy.

What does that mean? Modern surrogacy (gestational surrogacy) is achieved with a gestational surrogate –- a woman who undergoes in vitro fertilization (IVF) and carries an embryo that was created with the intended mother or donor’s egg and the intended father or donor’s sperm. The surrogate shares no DNA with the child she is carrying. Because modern surrogacy does not involve a genetic link between the surrogate and the baby, it has become a legally safe and popular means of starting or growing a family.

More Facts About New York Surrogacy Laws

Surrogacy Agency Requirements: Agencies facilitating surrogacy arrangements must be licensed in New York and adhere to regulatory guidelines.

Compensation: Reasonable gestational carrier compensation for medical, legal, and living expenses is allowed, but altruistic surrogacy is also an option.

What Is a Surrogacy Agreement?

A comprehensive, written gestational surrogacy agreement is mandatory. It outlines expectations, compensation, responsibilities, and potential contingencies.

Pre-Birth Orders:

In the context of surrogacy in New York, pre-birth order holds significant legal importance in determining parental rights and responsibilities before the child is born. A pre-birth order is a legal document issued by the court that establishes the intended parents as the legal parents of the child to be born through surrogacy. This order is crucial for streamlining the legal process and ensuring that the intended parents have immediate parental rights upon the child’s birth.

A pre-birth order (PBO) petition can be initiated by either the intended parents’ or the surrogate’s attorney, though it is conventionally handled by the intended parents’ legal representative, The petition is typically filed in either the second or third trimester of pregnancy. The Child-Parent Security Act (CPSA) outlines the specific documents required for submission to the court during this parentage proceeding, which may encompass statements or affidavits from a donor and/or fertility clinic, depending on the particulars of the arrangement. Subsequently, a scheduled hearing involving all parties and their legal counsel takes place. If the court determines that both the gestational carrier agreement and the PBO align with the stipulations of New York law, a judgment of parentage is issued, affirming the intended parents’ legal status as the child’s parents upon birth. Simultaneously, the court acknowledges that the surrogate and any donors involved do not hold legal parental rights over the child.

Post-Birth Processes: Since PBOs are readily available for all Intended Parents, this is the preferred option. However, should a post-birth order be necessary, there are options to do so.

Parental Rights Waiver: The gestational carrier and her spouse (if applicable) must waive any parental rights they presumably may have to the child.

Protection Against Exploitation: New York law prohibits coercive or exploitative practices in surrogacy agreements.

New York is a friendly state. Learn more about becoming a surrogate in New York.

Navigating New York surrogacy laws requires careful consideration and legal expertise. By staying informed and working with experienced professionals, you can embark on a surrogacy journey with confidence and legal security.

For personalized legal advice and assistance, consult with a reputable reproductive law attorney in New York.