Is Surrogacy Legal in New York?
Surrogacy Law in New York
New York Surrogacy Law: Types of Surrogacy
As of February 15, 2021 when New York Family Court Act Article 5-C was enacted, compensated gestational surrogacy (where the egg used is not the egg of the surrogate and the surrogate therefore has no genetic connection) is legal and surrogacy agreements are enforceable, provided strict statutory eligibility requirements and guidelines are followed. This change in the law also allows for the enforceability of surrogacy agreements in compassionate (uncompensated) gestation surrogacy, provided the statutory guidelines are followed.
Traditional (genetic) surrogacy (where the surrogate uses her own egg and therefore has a genetic connection to any child so born) is illegal and contrary to public policy New York Domestic Relations Law Article 8 Section 122 and there are criminal penalties for engaging in traditional surrogacy in New York.
New York’s “Surrogates’ Bill of Rights”
Are There Surrogate Requirements in New York?
Yes. A surrogate must be a U.S. citizen or lawful permanent resident, be at least 21 years old, not be using her own egg, provide informed consent after discussing risks with qualified medical professionals, be medically and psychologically cleared to proceed, and be represented by independent legal counsel throughout the process. The surrogate also must be a New York resident for at least six (6) months if an intended parent (IP) is not a New York resident. If married, her spouse must also be a party to the surrogacy agreement, barring certain situations. Additionally, the surrogate must be provided at the outset with a Surrogate’s Bill of Rights which further outlines her rights and entitlements under New York Law
Are There Intended Parent Requirements in New York?
Does New York Surrogacy Law Allow for Pre-Birth Orders?
Parentage Orders: As of February 15, 2021 when New York Family Court Act Article 5-C was enacted there is a streamlined process for intended parents who used a gestational carrier to obtain a parentage order. If the strict statutory requirements were followed and the surrogacy agreement is substantially compliant with those guidelines and attorneys for the surrogate and for the intended parent(s) certify as such, a parentage petition can be filed and a pre-birth Judgment of Parentage shall be issued by the court. If there was not substantial compliance with the statute, the court may still issue a Judgment of Parentage, though the court may require a hearing as to the intentions of the parties or make a decision based upon the best interests of the child. A pre-birth Judgment of Parentage cannot be issued under New York Law to intended parents where neither is a US citizen or lawful permanent resident, or where neither parent was a New York resident for at least six (6) months before the surrogacy agreement was executed.
Does New York Recognize Parentage Orders for Other States?
Are There Escrow Requirements in New York?
Are There Surrogate/Donor Compensation Requirements in New York?
Yes. The compensation, if any, paid to a donor or a surrogate must be reasonable and negotiated in good faith between the parties. Any payment to a surrogate shall not exceed the duration of the pregnancy and recuperative period of up to eight (8) weeks after the birth any resulting children. Additionally, compensation to an embryo donor shall be limited to storage fees, transportation costs and attorneys’ fees.
The conditions under which intended parent(s) participating in gestational surrogacy could be declared legal parents with a pre-birth order, regardless of whether they are related to the resulting child, are listed below:
Surrogacy Conditions for Same-Sex Couples in New York
In New York, the law as to surrogacy is gender neutral and applies equally to same-sex and different sex-couples.
Are There Options for Unmarried Intended Parents in the state of New York?
In New York, the law as to surrogacy is marriage neutral and applies equally to married couples, unmarried people and single individuals.
Whose names go on the birth certificate in New York?
Parents will be listed on the birth certificate as “parent and parent.” When there is a surrogacy arrangement done in substantial compliance with New York Family Court Act Article 5-C and a pre-birth Judgment of Parentage is therefore obtained, the name of each intended parent will appear on the child’s birth certificate.
If the order is not obtained pre-birth but rather post-birth, the initial birth certificate will contain the name of the surrogate, and if married, her spouse’s name or no second parent’s name at all. If the surrogate is unmarried, the intended father’s name may be able to be put on the initial birth certificate if they sign a voluntary acknowledgment of parentage (VAP). However once the post-birth Judgment of Parentage is issued, it will direct a new original birth certificate be issued containing the name of each intended parent and removing the surrogate.
An international same-sex male couple can obtain a birth certificate listing the biological father and gestational surrogate as parents, if they sign a voluntary acknowledgment of parentage (VAP). If the gestational surrogate is married, additional hearings and paperwork may be required. Should parents wish to list both fathers on the birth certificate, the gestational surrogate must relinquish her rights and the non-biological father must obtain an order of second parent adoption. International intended parents should consult with legal counsel in their home countries to coordinate the best process for securing their legal parentage in a way that will protect them and their child, and be honored in their home country.
Egg/Sperm/Embryo Donation Law
As of February 15, 2021 when New York Family Court Act Article 5-C was enacted, a donor is not a parent of a child conceived by means of assisted reproduction where there is proof of donative intent. The law outlines specific ways of proving donative intent, which includes the parties having executed a properly-drafted donation agreement in the case of known donors, or having documentation provided by the clinic or facility who obtained the anonymously donated egg (or sperm or embryo).
State law information verified by the following (ART) Assisted Reproductive Law attorney licensed in New York*.
Law Office of Jennifer P. Maas, PLLC
1455 Veterans Highway, Suite 203
Islandia, New York 11749
Ph: 212-860-0120 & 516-464-1754