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Surrogacy in New York. What you Need to Know Now!

February 2, 2021 | By:

UPDATE

February 2021

Part I

In just a couple of weeks compensated surrogacy will be legal in New York!

I don’t know if you heard, but The Child Parent Security Act (the “CPSA”) was passed by the New York legislature last year and signed into law by Governor Andrew Cuomo.  The CPSA goes into effect on February 15th, 2021 and it makes compensated surrogacy legal in New York!

For those of us who needed third-party assisted reproduction to build their families, and for those of us who practice assisted reproduction law, the CPSA marks an historic change in New York law.  The CPSA brings New York law with respect to third-party assisted reproduction into the 21st Century (along with literally almost every other state in our country).

Unfortunately, there is a lot of confusion among surrogacy agencies, IVF clinics, and even attorneys about the CPSA.  A lot of misinformation is being circulated about the CPSA and as a result it’s getting a bad rap.  I would like to take a few moments to clarify some stuff because I think a lot of people are being incorrectly advised against entering into a surrogacy arrangement in New York.  In fact, during a recent Continuing Legal Education Seminar I attended about the CPSA, a New York State Judge made a really great point about the benefits of the CPSA that reassured me about being able to protect my client’s rights under New York law.

The Judge said that, as compared to an adoption proceeding which seeks to establish a legal parent-child relationship where none exists, the CPSA confirms a legal parent-child relationship that already exists.  Take a moment and wrap your brain around that for a second.  New York just went from criminalizing compensated surrogacy to assuming that a properly arranged surrogacy arrangement that complies with the CPSA, presumes that the intended parents are the legal parents of the baby being carried by the gestational surrogate.  Wow!

If the parties to the surrogacy arrangement cross all their “t’s” and dot all their “i’s” and present a petition for parentage that shows that they are in “substantial compliance” with the CPSA, a judge in New York doesn’t have any purview or authority to do anything other than sign a Judgment of Parentage (even as early as the first trimester of a surrogate’s pregnancy! Although I personally wouldn’t advise my clients to file the petition until the second trimester of pregnancy because I am superstitious[1]).  As an attorney who is used to having to argue with judges over the legality of compassionate surrogacy and parental rights under New York law, and as an infertile woman who was forced to make decisions about how she was going to build her family because of the former prohibition against surrogacy in New York, this is music to my ears!  I can hear Frank Sinatra singing it now:

Start Spreading the News

I’m Leaving [for the clinic] Today

I Want to Be a Part of It

New York New York!

 

So, let’s take a dive into the CPSA and straighten-out some of the confusion!

One of the great features of the CPSA is that it contains the first ever “Surrogate Bill of Rights”.  The CPSA is the first statute in this country that codifies certain aspects of surrogacy arrangements and require that they be respected for the benefit and safety of gestational surrogates.  The Surrogate Bill of Rights is designed to ensure that surrogates in New York are not taken advantage of and are protected both physically, emotionally and financially.  I love the idea of the Surrogate Bill of Rights.  But I think it is the Surrogate Bill of Rights that might be confusing people and making them think New York remains a surrogacy unfriendly state.

Remember I said that the Surrogate Bill of Rights codifies certain aspects of surrogacy arrangements?  These aspects of surrogacy arrangements weren’t created for the first time in the CPSA.  Rather, the Surrogate Bill of Rights takes existing legal concepts that are addressed in almost all gestational surrogacy agreements, and instead of leaving it up to smart lawyers and surrogacy agencies to address these concepts in the gestational surrogacy agreement, the CPSA requires that we do it so nothing slips through the cracks.  While the Surrogate Bill of Rights is groundbreaking in terms of the fact that it is required by New York State law, the rights enumerated in it are nothing new or different to surrogacy or Assisted Reproductive Technology (ART) law.

The Surrogate Bill of Rights guarantees (among other things) that surrogates be provided independent legal counsel, medical and psychological counseling, life and health insurance, and the right to make decisions that affect her health and well-being.  As an experienced ART attorney, I can tell you there is nothing new about any of this.  I think one thing that may be concerning people unfamiliar with ART law is that under the Surrogate Bill of Rights, the surrogate has sole decision-making authority when it comes to her body and management of the pregnancy.  This type of decision-making authority sounds kind of frightening if you are an intended parent.[2]  However, it is important to note that this concept already is addressed in almost all gestational surrogacy agreements written in the United States.

I recently heard that a clinic is advising intended parents not to undergo surrogacy in New York because the CPSA gives the surrogate the right to terminate a pregnancy.  I am guessing this issue originates in part of the Surrogate Bill of Rights that addresses the surrogate’s right to make decisions about her healthcare.  I have news for you folks.  All surrogates have the exclusive right to choose to terminate a pregnancy or refuse to terminate a pregnancy.  United States Constitutional Law requires that a woman have the right to make this decision for herself and her body, even if she’s carrying someone else’s baby.  This is nothing new in ART law.

The Surrogate Bill of Rights just makes sure everyone addresses this in the gestational surrogacy agreement and that all parties to the surrogacy agreement understand that it is her body and she has the legal right to make medical decisions with respect to her body. When this is addressed and discussed up front in the gestational surrogacy agreement, problems later on during the surrogacy journey can be avoided.  The fact that the CPSA mandates that this be included in surrogacy contracts, is doing nothing other than that which best practices in ART law already embraces.  Again, nothing new here folks.

Other concerns have been raised about who can enter into a surrogacy arrangement in New York, and some people are upset that the CPSA has some arguably restrictive language about who can enter into a surrogacy arrangement in New York.  But let’s take a look at this for a moment before we decide that New York remains a surrogacy-unfriendly jurisdiction.  The CPSA requires that:

  • The Surrogate be at least 21 years of age and a lawful permanent resident of New York; and,
  • At least one intended parent must be a legal resident of the State of New York for at least 6 months prior to execution of the surrogacy agreement; and,
  • All parties to the surrogacy agreement must be United States Citizens or lawful residents of the United States.

Okay, yes, it is kind of a big bummer that internationally-based intended parents cannot enter into a surrogacy arrangement in New York absent one of them having a legal residence in New York and some form of lawful basis for residing in the United States and New York for at least six months (Visa anyone?).  At present surrogacy is limited to arrangements between lawful residents of the United States who have a legal residence in New York.

While that doesn’t necessarily negatively impact intended parents who reside in New York, it does impact New York surrogates who might like to carry a child for intended parents who live somewhere other than New York.  I have heard that people are being told that the CPSA only permits surrogacy arrangements between New York residents and prohibits all out-of-state residents from entering into a surrogacy arrangement with a New York surrogate under New York law.

Let me bust this myth open as well.

The CPSA does not prohibit a New York surrogate from carrying a baby for an out-of-state intended parents.  She absolutely can.  What might get a little complicated, however, is how parental rights are established in this type of situation.  Establishing parental rights in this scenario is not going to be as easy as the Judge described it in my CLE seminar, but it can be done.  If you have experienced ART attorneys in New York working with you (and one in the state in which the intended parents reside), the intended parents will be established as the legal parents of the baby the surrogate carried.  The CPSA does provide for the establishment of parental rights in surrogacy arrangements that do not “substantially” comply with the CPSA.

In our scenario with out-of-state intended parents working with New York surrogates, parentage will be established based on the intent of the parties at the time the surrogacy agreement is entered into and the best interests of the child.  These two standards, intent and best interests, are fundamental principles of ART law.  Indeed, there is ample case law (law made by judges as opposed to by statute) in New York and around the country that says the intent of the parties as expressed in a contract or other writing entered into prior to the time the child is conceived through third-party assisted reproduction, will be enforced.  Thus, if you enter into a gestational surrogacy agreement and clearly express everyone’s intent that the intended parents are the parents and that the surrogate and her spouse or partner don’t want to be the parents, then under New York law, the court must enforce the parties’ intent as expressed in the gestational surrogacy agreement and determine that the intended parents are the baby’s legal parents.  Assuming that the surrogate is not contesting parentage and there are no scary facts that would indicate the child would be unsafe[3] growing up with his/her parents, then the judge should issue a Judgment of Parentage notwithstanding the fact that the intended parents aren’t New York residents and the gestational surrogacy agreement is not in substantial compliance with the CPSA.

Quite honestly, establishing parental rights for out-of-state intended parents happens all the time in surrogacy arrangements.  It is really rare for all parties to a surrogacy arrangement to reside in the same state.  Sometimes that means it is a more complicated process to establish parental rights (as is the case here), but at the end of the day parental rights are established.  In ART law, everything is state specific.  In fact, sometimes it is not just state specific but county and judge specific within the state!  Despite the annoying residency provisions, at least the CPSA provides clear guidance on how you establish parental rights when there isn’t substantial compliance with the statute.  And that is a big step-up from those states in which you literally don’t know what you’re going to have to do in order to establish your parental rights until you know what judge has been assigned to your petition.  I will take my chances with out-of-state intended parents under the CPSA any day compared with the insecurity of not knowing how it’s all going to play out until you have a judge assigned in a specific court in a specific county (talk about nail biting)!

So, I hope we have busted a couple of big myths about the CPSA and this unfortunate and unfounded idea that surrogacy in New York is something to avoid.  There are other issues with the CPSA that I will address in Part II of this blog (like insurance, agency licensure, and escrow management) but for the moment I think we made some headway in redressing these horrible allegations about the CPSA and New York surrogacy law.

And for what it is worth, there is a group of New York attorneys, NYAAFF (New York Attorneys for Adoption and Family Formation), of which I am a member, who are working on a “clean-up” bill which seeks to resolve some of the concerns people have about the CPSA, like that pesky little residency requirement.  I have tremendous faith in NYAAFF (heck, the CPSA wouldn’t exist without some of its members!) and I am optimistic that the residency requirement will be modified at some point in the near future.[4]

But even if the CPSA stays exactly as it is today, we’ve come a long, long way.  This is truly an historic moment in New York.  Don’t be afraid of it.  Embrace it!

I’ll Make a Brand New Start in Old New York

If I Can Make it There

I’ll Make it Anywhere

It’s Up to You

New York New York

 

[1] No matter when you file the petition, the Judgment of Parentage doesn’t become effective until the moment of birth.

[2] For purposes of this blog, I frequently refer to intended parents in the plural, as in a couple (whether heterosexual or same-sex, married or unmarried).  Please note that the CPSA also provides for the establishment of parental rights for single parents, not just two-parent families.

[3] An examination of the “best interests” of the child looks to many aspects of parentage and the family situation, the prospective safety of the child is just one example cited for purposes of this blog.

[4] To be clear, the citizenship part of the residency requirement is not among the issues being discussed in the clean-up bill.

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