What you need to know about surrogacy in NY and why you need to know it: Updated.
November 30, 2016 | By: Liz | Filed under: Birth Certificates, Birth Orders, Egg Donation, Gestational Carrier Arrangements, New York Reproductive Law, Parentage Orders, Personal Musings, Pre-Birth Orders, Reproductive Law, Surrogacy, Surrogacy in New York, Third-Party Assisted Reproduction, Uncompensated Surrogacy
The other day I had the privilege of visiting clients who had just come home from the hospital with their newborn. It was a compassionate surrogacy and it was time for everyone to sign papers either terminating parental rights or seeking to establish them. It was a unique situation – and one that brought tears to me eyes repeatedly while I was there (okay so I am a Crier and I am Proud of it). In this case a grandmother had carried her grandchild for her daughter and son-in-law. The emotion (and tears) behind this child’s birth is the subject of another blog. The conversation we had while everyone was signing their papers and I was furiously stamping everything with my notary stamp is, however, the subject of this blog. We were talking about how they got started on this monumental journey and a blog I wrote about Beyoncé and NY surrogacy. In that blog, I gave an overview of some aspects of surrogacy laws as they pertain to New York State. Having reviewed that blog, it occurs to me an update or clarification might be warranted. If nothing else, I have changed how I practice and establish parental rights and my blogs should reflect that change, yes? I have posted other blogs on surrogacy which discuss NY laws so this blog should be read in conjunction with the Beyoncé post from 2012 and my other blogs related to surrogacy.
Despite the estimable efforts of some of my colleagues to get NY to update our legislation, we still can’t do the paid surrogacy thing in NY. In order to enter into a surrogacy arrangement in NY a friend or family member has to carry the baby for you out of her love and affection for you. This is called “compassionate surrogacy” and it is indeed, a compassionate act for someone to carry another person’s child without financial remuneration. If you don’t have someone who is willing to carry your baby out of their love and affection for you, you have to go to another state which permits compensated surrogacy. You shouldn’t have too hard a time finding a surrogacy friendly state as NY is among only a couple of states which have “surrogacy unfriendly” laws. And by the way, when I say “unfriendly” I would like to remind you that entering into a contract for surrogacy in NY, or facilitating a compensated surrogacy arrangement in NY, are not just acts which are against the public policy of the State of NY, they are potentially criminal acts. Yes, let’s insert the word felony in there for some greater clarity. Fun times.
But we have compassionate surrogacy and NY’ers can even have a traditional surrogate carry a baby out of her love and affection for the intended parents (traditional surrogates use their own eggs to achieve a pregnancy and a lot of states do not permit traditional surrogacy). There are real options for achieving a family when you are medically or socially infertile and live in NY. Provided you have someone willing to carry that baby without compensation (get the theme here?).
So let’s say you have someone willing to carry your baby for you. Let’s now assume you have or can create embryos using your eggs and your husband’s sperm (I will discuss what happens when you can’t). You hire an experienced reproductive lawyer to draft a document prior to the transfer of your embryo to the surrogate’s [compassionate] uterus which outlines your (the intended parents’) intent and the surrogate’s intent (and her husband if she has one), that she will carry your baby out of her love and affection for you, and that she has no intent to parent the child. In this document outlining your intent, your reproductive lawyer also will address the laws of the State of New York and who will be deemed a parent, and at what point in time they will be deemed a parent, or you will be deemed to be the parent (dang that’s a lot of deems). And that is as far as I go with my discussion of this document evidencing pre-conception intent, as the document itself will vary among the reproductive lawyers you may hire (and whose surrogacy practice is, by law, limited almost exclusively to compassionate surrogacy).
This Completes Step 1 = You now have a pre-conception document outlining the everyone’s intent for the compassionate surrogate to carry baby for the intended parents, and for the intended parents to be the parents. Many reproductive lawyers in NY call this document a Memorandum of Understanding (or MOU for short).
Then your surrogate gets pregnant from the embryo created using your egg and your husband’s sperm (or from donor gametes). What happens now? Again this will vary based on individual attorneys but typically during the pregnancy, if your surrogate is married her husband can take steps to terminate any parental rights NY law will assume he has by virtue of the fact that he is married to your surrogate at the time your child is conceived and born. In this case, typically the surrogate’s husband isn’t listed on the first birth certificate; it will be issued with just her name on it (attorneys do things different ways so do discuss this part of the process with your own attorney). If your surrogate isn’t married, then bio dad’s name can be placed on the first birth certificate with the surrogate’s name. This makes life a lot simpler for everyone, but this can only happen when your surrogate is not married. However, it is only AFTER your baby is born that your surrogate can take steps to terminate her parental rights. NY will deem your compassionate surrogate to be your child’s mother, notwithstanding the lack of any genetic connection to your child (well except for the grandmother who just delivered her grandchild and who, of course, is genetically related to the baby she carried). Indeed, because she cannot terminate her parental rights until after your baby is born, under the current NY laws, your surrogate’s name will have to go on the first birth certificate issued for your baby by the State or City of New York.
After the baby is born you can go to court and seek an order declaring you and your husband (if your surrogate is married) to be the genetic and legal parents of your child. This is often called a “post-birth order” of parentage. Once you have that court order, NY or NYC will issue a new birth certificate with your names on it. (Please see my discussion of Queen Bee regarding whether or not that first birth certificate gets sealed). I have been having quite a bit of success recently getting post-birth orders quickly. It used to be that I had to go into different courts – now I usually just go into one court and have a hearing to establish the intended parents’ parental rights and terminate the surrogate’s presumptive parental rights. I have had hearings that lasted a total of 10 minutes. Anti-climactic to say the least.
Now, to be fair, some of my colleagues go into court before the baby is born to start the process of establishing and terminating parental rights. Everyone has their own way of doing things, but the bottom line is that whether I go into court before or after your baby is born, or both before and after your baby is born, your surrogate’s parental rights cannot be terminated and your parental rights cannot be established until after the baby is born. That is until the NY legislature decides to move into the 21st Century with the rest of us.
If you have to use donor egg, donor sperm, or your surrogate uses her own egg, the non-biological parent cannot get a post-birth order in NY. In this case, where someone else provided gametes (egg or sperm), a step-parent or second-parent adoption must be conducted to establish the non-bio parent’s parental rights. The bottom line is that in NY, if you lack a genetic connection to your child, you will need to enter into some kind of an adoption process to be named mom or dad on that birth certificate.
This Completes Step 2 = establishing and terminating parental rights either through court proceedings which are completed after the baby is born and/or through adoption proceedings (depending on who has a genetic relationship to the baby).
And at some point thereafter you will receive a new birth certificate with your names on it!