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

Surrogacy in New York is a complicated process, with many legal aspects to consider before you become an intended parent or a surrogate in this state. While surrogacy is sometimes possible here, the restrictions placed upon this family-building process may make it more difficult than in other states in the U.S.  

Before beginning a surrogacy journey in New York, it’s important to understand the critical restrictions that will affect your personal process. Those wishing to complete a compensated surrogacy should look to another state, and those wishing for the security of an enforceable legal contract will not find that in a New York surrogacy. It’s important to only proceed with this surrogacy process if you understand and accept the restrictions placed upon your journey as an intended parent or prospective surrogate.

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: Existing New York law declares surrogacy contracts to be “contrary to the public policy of this state.”  Any surrogacy contracts created in New York are void and unenforceable, and any compensated gestational surrogacy contracts are illegal. Uncompensated gestational surrogacy is not prohibited, but contracts for this process are unenforceable.

In New York, a gestational surrogate is identified as a “birth mother” and is the presumptive legal parent regardless of her genetic connection the child she is carrying.

Q: Is compensated surrogacy legal in New York?

A: No. It is illegal to pay a fee for someone to act as a gestational surrogate in New York. A gestational surrogate, her husband (if applicable) and intended parents who enter into a commercial surrogacy in New York are subject to civil penalties. Any other person or entity that assists in the formation of a surrogacy contract for a fee is subject to a fine of up to $10,000 and, if convicted of a second offense, is guilty of a felony. Notwithstanding these prohibitions, a gestational surrogate can receive the same payments and reimbursements that would be allowable under New York’s adoption laws (such as medical, hospital and living expenses).

Q: Is traditional surrogacy legal in New York?

A: All laws regarding gestational surrogacy in New York also apply to traditional surrogacy. Therefore, 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 void and unenforceable in New York, which is why the only surrogacy arrangements that can be made are through memoranda of understanding or “statements of intent.” These statements often cover all the same risks and responsibilities of the surrogacy process, but unlike surrogacy contracts in other states, they are not binding agreements and cannot be enforced in a court of law.

Because this is a complicated process, speak with a local New York surrogacy attorney to learn more about the process of creating an unenforceable surrogacy arrangement in this state.

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

A: All surrogacy contracts in New York are void and unenforceable and, therefore, are not legally binding or enforceable in court.

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

A: In New York, no enforceable steps can be taken prior to birth to establish the intended parents’ rights over the baby being born via surrogacy. Because a gestational surrogate is viewed as a “birth mother” and is the presumptive legal parent, she must wait until after the baby is born to give her consent for an adoption or, if the intended parents are the biological parents, to relinquish any potential rights she may have as a birth mother. 

Intended parents who are genetically related to their baby can obtain a post-birth order, but any non-genetically related parent must typically complete an adoption after birth.

If a surrogate is unmarried, a biologically related intended father can acknowledge paternity of his child at the hospital. However, if the surrogate is married, her spouse is presumed to be the other parent of the child. This means the intended father will need to undergo an adoption or a parentage proceeding, even if he is the biological father of the baby. A biologically related intended mother can bring an action for maternity in the same way a biologically related intended father can bring a paternity proceeding.

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: If an egg donor has been used to complete a surrogacy, the intended mother of the child will need to complete an adoption after birth to establish her parental rights. Her marital status will determine whether she needs to complete a stepparent or a second-parent adoption.

In addition, a non-genetically related intended mother or father in a same-sex couple pursuing surrogacy may need to complete an adoption as well. A surrogacy attorney in New York can best describe what legal processes are needed to establish parentage in your 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. If a couple is married, they pursue a stepparent adoption instead of a second-parent adoption. 

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.  Even though such agreements may not be legally enforceable, they are important evidence of the parties’ intent which can be determinative if there is ever a contest about parental rights.

If a married woman becomes pregnant using donated sperm through artificial insemination under the supervision of a physician with the consent of the donor and her husband in writing and acknowledged by the physician, the non-genetically related spouse is recognized as the legal parent by New York law.  Those completing an at-home insemination or using in vitro fertilization do not receive the benefits of this law. 

While married intended parents using donor sperm and complying with the above statutory requirements will both be named on the birth certificate, the non-genetically related intended parent in a same-sex marriage may need to complete an adoption after birth to protect her parental rights. This will help prevent any challenges from the sperm donor. However, a single woman who completes a known sperm donation will always be subject to the possibility of the donor asserting his parental rights, until his rights are terminated by a second-parent or stepparent adoption of the child.

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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Because of the various legal restrictions on surrogacy in New York, it is often an ill-advised path for prospective surrogates and intended parents to take. Because of the inability to enforce surrogacy contracts, the process is one that rests on the integrity and goodwill of all involved, which can open you up to certain legal risks.

At American Surrogacy, our specialists are happy to discuss with you your options for surrogacy in another state that provides a safer legal process. 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. At this time, our agency program does not accept prospective surrogates from New York.

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.