What New York’s Changes to Surrogacy Laws May Mean for Parents and Surrogates

There are few things more joyful than a new baby. Whether you expand your family through pregnancy, adoption, assisted reproductive technology, or surrogacy, the arrival of a new child is a time for celebration. But the time leading up to a new baby can be nerve-wracking, especially for gestational surrogates and expectant families. Using assisted reproductive technologies often posed some unique legal challenges in New York because, until recently, surrogacy wasn’t legal, even gestational surrogacy, where the surrogate has no genetic relationship to the child. Some recent modifications to New York’s surrogacy laws aim to protect the rights of parents and surrogates.

 

What is the Child-Parent Security Act?

In April 2020, the New York State Legislature passed the Child-Parent Security Act (CPSA). The new law created a simple path to establish legal parental rights for parents using surrogacy and other assisted reproductive technologies. The CPSA also establishes a Surrogates Bill of Rights that works to protect surrogates.

 

How Does the CPSA Protect Surrogates?

The CPSA established strong protections for surrogates concerning health care and consent, including:

  • Ensuring all parties give informed consent throughout the process;
  • Establishing a Surrogates Bill of Rights to ensure surrogates can make their own healthcare choices, including whether to terminate a pregnancy;
  • Giving surrogates the right to compensation for the surrogacy, the right to choose their health care provider, access to comprehensive health insurance, a disability insurance policy, and a life insurance policy paid for by the parents;
  • Giving the surrogate the right to walk away without penalty before pregnancy; and
  • Giving the surrogate the right to independent legal counsel paid for by the parents.

 

How Does the CPSA Protect Parents?

The CPSA also aims to protect parents and allow them to establish parentage more easily. The law:

  • Creates a secure legal relationship between the intended parents and their child immediately upon birth;
  • Creates a simpler process to establish parentage when one of the parents is not a biological parent, including creating new options and documentation to amend the birth certificate and establish legal parentage;
  • Assures that an egg or sperm donor won’t be considered a parent where there is a clear intent to donate; and
  • Provides more protections to LGBTQ+ and other parents using assisted reproductive technology.

 

How do the Parties Establish Parentage?

As part of CPSA’s protections for parents, the law allows specific documentation to establish legal parentage, including an Acknowledgement of Parentage and a Gestational Surrogacy Agreement. The law also allows involved parties to obtain an Order of Parentage from the court.

1) Acknowledgment of Parentage

An Acknowledgement of Parentage allows the parties to establish parenthood with a somewhat simplified form. The form can be signed by:

  • An unmarried surrogate and one genetic parent or
  • A married or unmarried surrogate and another person who is the intended parent of a child conceived with assisted reproductive technologies.

The law also protects other possible parents if another agreement is in place or there is another acknowledged parent.

2) Gestational Surrogacy Agreement

Before entering a surrogacy arrangement, the parties will work with their attorneys to commemorate their agreement, which will specify the rights and responsibilities of the parents and the surrogate. Your attorneys will ensure that the contract meets New York law’s specific legal requirements to ensure that the agreement is legally binding and enforceable.

Before the child’s birth or at the time of birth, you will submit a copy of the gestational surrogate agreement to the birth registrar at the hospital. The hospital will then forward the documentation to the State Health Department so the agency can modify the birth certificate to include the information from the agreement, including the intended parent or parents.

 

Are There Limits to the CPSA?

It’s important to note that the streamlined procedures for establishing parentage only apply with gestational surrogacy, where the carrier has no biological relationship with the baby. These simplified procedures won’t apply to surrogacy where the surrogate’s own egg is used to conceive the child.

 

We Can Help!

If you’re considering surrogacy to expand your family, we can help with the legalities. Contact my team at Miller Law Group or call us today to schedule a confidential consultation.

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