What You Need to Know About Surrogacy in New York

What You Need to Know About Surrogacy in New York

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New York Surrogacy Laws and Information

Thanks to the passage of the Child-Parent Security Act in April 2020, surrogacy in New York is now a legal, enforcable process for intended parents and surrogates in this state. If you live in the Empire State and have dreams of completing a surrogacy journey, you can move forward safely, ethically and legally — with the help of experienced professionals, of course.

While intended parents in New York previously had to travel to other states to add to their families, they can now work with gestational carriers within their own borders for an easier, more convenient journey. However, like you should in any state, you should always understand the laws and processes ahead of you before deciding this path is the right one for you.

If you are interested in a New York surrogacy, you can always contact our staff or give us a call at 1-800-875-BABY(2229). We are happy to answer your questions about New York surrogacy laws and explain how our agency can guide you through this process. 

Remember: It’s best to speak with an experienced surrogacy attorney in New York to better understand what your surrogacy process will look like. Only a lawyer can provide the individual information you need to determine which path is best for you.

However, to start your research, you can find the basics of New York surrogacy laws below.

Q: Is surrogacy legal in New York?

A: Yes. New York law allows intended parents, gestational carriers and their spouses to enter into enforceable gestational contracts, as long as they meet the requirements set forth by the law (more on that below). While for many years New York prohibited gestational agreements, the Child-Parent Security Act of 2020 set new regulations and protections to make it a safe process for all involved.

Q: Is compensated surrogacy legal in New York?

A: Yes. The Child-Parent Security Act allows for a gestational carrier (and egg/sperm donor) to receive payment for services rendered. Any compensation paid must be "reasonable and negotiated in good faith between the parties." A gestational carrier can receive payment through the pregnancy and up to eight weeks after delivery.

Q: Is traditional surrogacy legal in New York?

A: Laws regarding traditional surrogacy in New York are complicated. The Child-Parent Security Act only protects gestational surrogacy arrangements, so traditional surrogacy is only legal in altruistic cases where a surrogate does not receive compensation. Because the traditional surrogate would be the genetic mother of the child, she is the child’s legal mother under New York law and must consent to the child’s adoption by an intended parent who is not genetically related to the child. 

Q: What does a surrogacy agreement in New York cover, and how does the legal process work?

A: Surrogacy contracts are legal and enforceable in New York, as long as the gestational arrangment meets a certain set of requirements. If you pursue surrogacy in New York, your attorney will ensure your contract meets these standards.

You can read the full description of standards here, but there are a few you should know first. Surrogacy contracts in New York cannot limit a gestational carrier's decision to terminate or continue a gestational pregnancy; she retains the right to make all medical and healthcare decisions about her body during the process.

In order to be a surrogate in New York, a woman must:

Intended parents in New York must:

  • Undergo independent legal counsel
  • Both be parties to the agreement (if in a couple relationship)

Both intended parents, the gestational surrogate and her spouse (if applicable) must be party to the surrogacy agreement. A surrogacy contract must be executed prior to embryo transfer and, if a surrogate is to receive compensation, that compensation must be funded in an escrow account prior to signing the agreement.

Please speak with a local New York surrogacy attorney to learn more about the process of creating an enforceable surrogacy arrangement here.

Q: Are surrogacy contracts (whether compensated or altruistic) enforceable in New York?

A: All gestational surrogacy contracts in New York (compensated or altruistic) are legally binding and enforceable in court, as long as they meet the requirements described above.

Q: What are the surrogacy laws in New York on parentage orders?

A: The Child-Parent Security Act allows for parentage judgements to be issued prior to birth, to be valid at the time the child is born. A petition for a parentage judgement can be made if the intended parent or surrogate has been a resident of New York for at least 90 days. The parentage order ensures the intended parent's rights to their child after birth, terminating any assumed rights of a gestational carrier or egg/sperm donor

The Act orders that a copy of the parentage judgement must be released to the Department of Health upon the birth of the child to ensure an accurate birth certificate, listing the intended parents as the parents of the child.

Again, please speak with a New York surrogacy attorney for details on this process, given your individual circumstances.

Q: Are there any particular laws for parents outside the U.S. who complete a surrogacy in New York?

A: The same laws that apply to New York intended parents will apply to international intended parents completing a surrogacy in New York.  However, since immigration citizenship issues may arise, international intended parents needing to adopt to secure their legal relationship to the child are advised to consult with an attorney with specific expertise in the International surrogacy/adoption process. 

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

A: The Child-Parent Security Act allows for intended parents to receive a pre-birth order regardless of their biological connection to the child. However, because individual circumstances may vary, intended parents should always speak with an experienced New York surrogacy attorney to find out what is required in their situation.

Q: Does New York allow second-parent adoptions? Who would need to complete a second-parent adoption vs. a stepparent adoption (if applicable)?

A: Second-parent adoptions are legal in New York and provide a way for unmarried intended parents to establish parental rights over their child born via surrogacy. Please speak with a New York surrogacy attorney to determine if a second-parent adoption is necessary in your situation.

Q: What happens in cases where intended parents use a donor egg, sperm or embryo?

A: If intended parents are using anonymously donated gamete(s), the legal steps of terminating the donor’s rights are often already taken care of. However, if the intended parents are using a known donor, they will need a New York surrogacy attorney to help them complete the necessary legal steps.

Intended parents should always have a written gamete donation agreement if they are using a known donor, in order to set expectations and responsibilities from each party moving forward. However, rest assured that donors are considered as such under New York surrogacy laws, meaning a donor does not have parental rights to a child conceived via assisted reproduction.

For more information on your particular circumstances, please speak with a New York surrogacy attorney.

Q: Are there any additional laws impacting same-sex surrogacy in New York?

A: Sometimes, the surrogacy laws in New York affecting same-sex couples may vary  based on judge and jurisdiction. Because the laws regarding parentage orders in New York are so complicated, it’s best to speak with a New York surrogacy attorney to learn more about what your LGBT surrogacy journey would look like in this state.

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Today, surrogacy in New York is a vastly different landscape than just years before. It is a safe, legal and enforceable path for gestational carriers and intended parents to walk together. At American Surrogacy, our specialists are happy to discuss with you your options for surrogacy here. We can also refer you to a proper surrogacy attorney in New York should you wish to learn more about whether this process is right for you,

To learn more about how we can provide a safe, regulated surrogacy process to help you reach your surrogacy goals, please contact our agency at 1-800-875-2229(BABY) or online today.

State law information provided by:

Nina Rumbold and Denise Seidelman

Rumbold & Seidelman, LLP

914-779-1050

The information in this article is not intended to be and should not be taken as legal advice. Surrogacy laws in New York are always subject to change, so we encourage you to speak with a local New York surrogacy attorney to learn more about the current state of surrogacy here before moving forward.