New York

Surrogacy Law in New York

New York Surrogacy Law: Types of Surrogacy

In New York, gestational surrogacy cannot be legally carried out if the surrogate wishes to be compensated. New York Code Section 8-122 states, “Surrogate parenting contracts are hereby declared contrary to the public policy of this state, and are void and unenforceable.” Fines of up to $10,000 can result if contracts are entered into and subsequently discovered. Compassionate surrogacy is permitted, but the agreements must be carefully composed.

Traditional (genetic) surrogacy is also illegal under this state code and would only be permitted in cases of compassionate surrogacy – where the surrogate went uncompensated for her services.

New York’s “Surrogates’ Bill of Rights”

The New York CPSA contains a “Surrogates’ Bill of Rights.” The Surrogates’ Bill of Rights ensures that surrogates have continuous support and more protections than the typical baseline protocols of an ethical surrogacy journey. It provides surrogates enumerated rights with respect to health and welfare decisions, independent legal counsel, health insurance and medical costs, counseling, life insurance, and more.

Are There Surrogate Requirements in New York?

The following legal requirements exist to serve as a gestational surrogate in the state of New York:

  1. The surrogate must be at least twenty-one (21) years old;
  2. The surrogate must be a United States citizen or a permanent lawful resident;
  3. The surrogate cannot provide the egg used to conceive the resulting child;
  4. The surrogate must complete a medical evaluation with a health care practitioner related to the surrogacy, including a screening of the surrogate’s medical history of any known health
    conditions that may pose risks to the surrogate or fetus during the pregnancy;
  5. The surrogate must give informed consent to the surrogacy after being informed of the medical risks;
  6. The surrogate and her spouse, if applicable, must be represented throughout the contract phase until its execution by an independent attorney of their own choosing who is licensed
    to practice law in New York, the cost to be paid by the intended parent(s)*;
  7. Prior to the start of a cycle, the surrogate must obtain a comprehensive health insurance policy that extends throughout the duration of the pregnancy and for twelve (12) months
    after the birth of the child, the cost to be paid by the intended parent(s)*; and
  8. The surrogate must meet all other requirements deemed appropriate by the commissioner of health.

Are There Intended Parent Requirements in New York?

The following legal requirements exist as an intended parent of a surrogacy in New York:

  1. At least one intended parent must be a United States citizen or a lawful permanent resident
    and must have been a resident of New York for at least six (6) months;
  2. Where at least one intended parent is not a resident of New York for six (6) months, they
    were previously a resident of New York for six (6) months;
  3. The intended parent(s) must be represented throughout the contract phase until its execution by an independent attorney of their own choosing who is licensed to practice law in New York;
  4. The intended parent(s) must pay for the surrogate’s independent legal counsel who is licensed to practice law in New York*;
  5. The intended parent(s) must pay for a comprehensive health insurance policy and a life insurance policy for their surrogate which provides a minimum benefit of $750,000, or the maximum amount if the surrogate qualifies for less than $750,000, prior to the start of a cycle and for twelve (12) months after the surrogate gives birth*;
  6. The intended parent(s) must pay for all co-payments, deductibles, and any other out-of-pocket medical costs associated with preconception, pregnancy, childbirth, or postnatal care for twelve (12) months after the surrogate gives birth*;
  7. The intended parent(s) must pay for counseling for the surrogate upon request, including counseling for the surrogate following delivery;
  8. Upon request by the surrogate, the intended parent(s) must pay for a disability insurance policy which designates a beneficiary of the surrogate’s choosing; and
  9. The intended parent(s) must agree to execute a Will prior to embryo transfer, designating a guardian for all resulting children and authorizing their executor to perform the intended parent(s)’ obligations pursuant to the surrogacy agreement.

*Unless it is a compassionate surrogacy and then the surrogate may waive the right to have the intended parent pay.

Does New York Surrogacy Law Allow for Pre-Birth Orders?

Pre-birth orders may be issued both for children conceived through assisted reproduction (egg/sperm donors) and also for children conceived pursuant to a surrogacy agreement, but a pre-birth order does not become effective until the birth of the child.

Pre-birth orders for children conceived through assisted reproduction (egg/sperm donors) are issued when an intended parent has been a resident of New York for at least six (6) months, or if an intended parent is not a resident of New York, the child will be or was born in New York within ninety (90) days of filing.

Petitions for pre-birth orders for children conceived pursuant to a surrogacy agreement may be commenced at any time after the surrogacy agreement has been executed by all of the parties. Pre-birth orders for children conceived pursuant to a surrogacy agreement are issued when the surrogate or at least one of the intended parents has been a resident of New York for at least six (6) months at the time the surrogacy agreement was executed.

Does New York Recognize Parentage Orders for Other States?

Yes, another state’s parentage order will be recognized by statute in New York.

Are There Escrow Requirements in New York?

Prior to the start of a cycle, if the surrogacy agreement provides for the payment of compensation to the surrogate, the funds and any reasonable anticipated additional expenses shall be placed in escrow with an independent escrow agent who consents to the jurisdiction of New York courts for all proceedings related to the enforcement of the escrow agreement.

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:

Yes

Married heterosexual couples, using their own egg and own sperm
Unmarried heterosexual couples, using their own egg and own sperm
Same-sex couples, using an egg or sperm donor
Married heterosexual couples, using a sperm or egg donor
Unmarried heterosexual couples, using an egg or sperm donor
Single parents using an egg or sperm donor
A parent who is legally separated or who has been living separate and apart from their spouse for at least three (3) years prior to the execution of the surrogacy agreement

No

Whose names go on the birth certificate in New York?

Parents will be listed on the birth certificate as “parent and parent.” The Pre-Birth order will direct the hospital to report the parentage of the child to the appropriate department of health in conformity with the Pre-birth order, listing the intended parent(s) on the birth certificate. If an original birth certificate has already issued, the court will issue an order directing the appropriate department of health to amend the birth certificate in an expedited manner and seal the previously issued birth certificate.

Egg/Sperm/Embryo Donation Law

The New York CPSA states that neither an egg donor, embryo donor, nor a sperm donor is a parent when eggs, embryos, or sperm are provided for the purposes of assisted reproduction, provided there is proof of a donor’s donative intent.

* This information is for general informational purposes only and is not, nor is it intended to be, legal advice. We strongly recommend retaining legal counsel, knowledgeable of reproductive law in the state.