Is Surrogacy Legal in New York? The 'New' New York Surrogacy Law: The Child-Parent Security Act
Updated: Jan 26
Beginning February 15, 2021, compensated surrogacy arrangements will be legal in New York!
Currently, New York is one of three states that explicitly prohibits compensated surrogacy arrangements. New York also makes it difficult to establish parental rights for same-sex parents and those parents who utilized assisted reproductive technology to grow their families. LGBTQ couples and those struggling with infertility have to endure a lengthy and expensive adoption process in order to both become the legal parents of their child(ren). The Child-Parent Security Act gives same-sex couples and individuals the same protections afforded to heterosexual couples and individuals. Governor Andrew Cuomo signed the New York Child-Parent Security Act into law on April 3, 2020, stating:
"New York's surrogacy ban is based in fear not love,
and it's past time we updated our antiquated laws
to help LGBTQ couples and people struggling with fertility
use commonplace reproductive technology to start families."
The Child-Parent Security Act will legalize gestational surrogacy arrangements and provide a clear path to establish legal parentage for children conceived via assisted reproductive technology.
What are the details of the New York Surrogacy Law?
Known as the Child-Parent Security Act, this law offers a path to establish legal parentage for individuals and couples struggling with infertility and members of the LGBTQ community.
The New York Child-Parent Security Act will:
Lift New York's ban on gestational surrogacy;
Create the Surrogates Bill of Rights, which will guarantee the strongest protections in the nation for surrogates, ensuring the unfettered right of surrogates to make their own health care decisions, including whether to terminate or continue a pregnancy, and that surrogates have access to comprehensive health insurance and independent legal counsel of their choosing paid for by the intended parents;
Establish criteria for surrogacy contracts to protect all parties in the process;
Create legal protections for parents of children conceived by assisted reproductive technologies; and
Streamline "second parent adoption" by requiring only a single visit to court to recognize legal parenthood while the child is in utero.
You can read the full text of Senate Bill S2071B here.
What is the New York Surrogates' Bill of Rights?
The Surrogates Bill of Rights provides considerable protection for surrogates - some of the strongest in the nation. This Bill of Rights includes requirements for surrogacy agencies, contracts, surrogate compensation, and parentage orders. The purpose behind this NY Surrogates Bill of Rights is to guarantee surrogates remain protected throughout their surrogacy journey. Specifically, the Surrogates Bill of Rights guarantees New York surrogates the following:
the right to make all health decisions regarding themself and their pregnancy;
the right to be represented by independent legal counsel throughout the contractual process and the duration so fate surrogacy agreement paid for by the intended parents;
the right to a health insurance policy that covers major medial treatments and hospitalizations throughout the pregnancy and for 12 weeks after the pregnancy to be paid for by the intended parents;
the right to obtain mental health counseling to address issues related to being a surrogate to be paid for by the intended parents;
the right to be provided with a life insurance policy for the duration of the surrogacy agreement with a beneficiary of their noosing to be paid for but he intended parents; and
the right to terminate a surrogacy agreement prior to becoming pregnant by means of assisted reproduction.
What are the requirements for an enforceable surrogacy contract in New York?
New York law provides the requirements for an enforceable surrogacy contract in Part 4 of the Family Court Act: §581-401 - §581- 409. The requirements are lengthy. First and foremost, a surrogate agreement cannot apply to the birth of a child conceived by means of sexual intercourse - meaning the surrogacy has to be via assisted reproductive technology. This is supposedly to safeguard against situations akin to Baby M arising. In addition, the person acting as a surrogate must be at least 21, a U.S. citizen or lawful resident, have not provided the egg used to conceive the resulting child, have completed a medical evaluation, and meet all other additional criteria.
Surrogacy contracts are complex legal documents.
These contracts should always be drafted and negotiated by
attorneys specializing in assisted reproductive technology or artificial conception law.
Failing to properly comply with the requirements of New York law
can lead to a multitude of legal issues for all parties.
What protections does the Child-Parent Security Act afford intended parents in New York?
This new legislation will guarantee the legal relationship between intended parents and their child(ren) from the moment of birth by providing a clear path to establish legal parentage. The law also provides assurances that neither the surrogate, nor the egg donor or sperm donor, is determined to be a legal parent of the child(ren).
Can both intended parents be legal parents of the child(ren) born via surrogacy in New York?
Yes, both intended parents can be the legal parents of the child(ren) born via surrogacy in New York regardless of marital status, sexual orientation, or genetic relationship to the child(ren). The Child-Parent Security Act only requires that at least one intended parent is a resident of New York for at least six (6) months and a citizen or lawful permanent resident of the United States.
Does being a same-sex couple or a non-binary intended parent have any legal consequence in New York?
No. All intended parents are treated the same by the New York Child-Parent Security Act regardless of sexual orientation or gender. Gay parents-to-be in New York will finally be able to grow their families with the help of a New York surrogate.
Are pre-birth orders and post-birth orders permitted in New York?
Yes. In New York, pre-birth parentage orders and post-birth parentage orders may be obtained by any intended parent so long as all the contractual requirements for a valid surrogacy arrangement are satisfied. The Child-Parent Security Act provides explicit instructions regarding how to obtain a pre-birth order to establish parentage. This law provides protection for surrogates living in New York, and intended parents living in New York working with surrogates who live outside New York.
Will New York honor a pre-birth order issued by another state?
Yes. The Child-Parent Security Act enables New York courts to recognize parentage orders issued in other states.
New York is has a number of cutting edge fertility clinics and reproductive endocrinologists to provide medical services making New York a great place to grow your family via assisted reproductive technology and surrogacy in 2021.
If you have questions about surrogacy arrangements in New York,
please reach out to Janene Oleaga, Esq.
This article contains general information about Oleaga Law, LLC,
the New York Child-Parent Security Act, surrogacy arrangements in New York,
surrogacy contracts in New York, and legal parentage in New York.
Neither this article nor its contents should be construed as legal advice.
An attorney-client relationship is not created by viewing this article or this website,
nor by sending any communication via this website or directly to Oleaga Law, LLC.
Oleaga Law, LLC and Janene Oleaga, Esq. expressly disclaim all liability from
actions or inactions based on the contents of this article and the website it appears on.
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