By Sherri Donovan, Esq.
The ban on commercial surrogacy in New York State has been lifted. On February 15, 2021 compensated gestational surrogacy was codified into New York State law. Also, originally known as the Child Parent Security Act, the legislation affects Domestic Relations Law, the Family Court Act, Estates, Powers and Trusts Law, Social Services Law, General Business Law, Public Health Law, and Insurance Law. Regulations of government agencies will be amended, particularly the Department of Health. Birth certificate records and hospital procedures will be impacted as well.
The effect of compensated legal surrogacy agreements and pre-birth judgements/orders of parentage is as wide sweeping as the 1980 Equitable Distribution Law affecting property division in divorce, the Child Support Standards Act, domestic violence statutes, and the legality of same sex marriage.
The compensated gestational surrogacy law is driven by the advancement of science and technology to create embryos outside the womb of a woman and then to transfer, with medical assistance and medication taken by the surrogate, embryos to a human female who can then carry a fetus with no genetic connection to her and give birth to a baby or babies who will be legally given to “intended parent(s).”
This is different than what is known as traditional surrogacy where the woman giving birth has a genetic connection to the child. Compensated traditional surrogacy is still prohibited in New York. Altruistic, with no payment, traditional surrogacy remains permitted and the child can be legally adopted by someone other than the birth mother.
The compensated gestational surrogacy law involves medical, psychological, ethical, sociological, financial, and legal factors. The parties include the surrogate and possibly the spouse or partner of the surrogate, the intended parent(s), the egg and sperm donors if not using genetic material from the intended parents, the matching program also known as the surrogacy agency and its representatives, therapists, healthcare providers and a medical institution or hospital, escrow agent, attorneys, and a judge and legal clerks in either Family Court, Supreme Court or Surrogates Court.
Informed consent and other specific requirements are necessary for compensated gestational agreements to be executed, considered valid, and enforced. This New York law also includes a comprehensive surrogate bill of rights broader than other states (even California) and countries that must be adhered to and provided to the surrogate. In addition, the new law streamlines the process for nonbiological parents to be legally recognized. US citizenship, New York residency and an age requirement of twenty-one also must be met.
While a surrogate has rights and benefits under this law, a surrogate still faces risks. A surrogate is entitled to reasonable compensation and costs paid for by the intended parents for her risks, responsibilities, and “inconvenience”. Emotional injury or post-traumatic stress is not specifically mentioned. The medical physical risks may include intrauterine growth restriction (IUGR), preeclampsia, gestational diabetes, placenta disruption and preterm labor. The mental health risks may include depression, sadness, and loss. The surrogate has a right to counseling and an attorney of her own choosing paid for by the intended parents. The surrogate determines all healthcare decisions concerning her own body and the fetus as well as the type of birth process. The surrogate gets to make the final decision about terminating the pregnancy and reducing the embryos. She is entitled to comprehensive medical, disability and life insurance until twelve months after birth paid for by the intended parent(s).
As to an intended parent, an intended parent can be single or married and there is to be no discrimination based on sexual identity or preference. A legal spouse of an intended parent does not need to sign the surrogacy agreement if the spouses have been separated for three years or signed a legal separation agreement. In New York, as opposed to what has occurred at times in other locations, the intended parent cannot reject the infant because of special needs or a birth defect, race, or separation/divorce from a partner or spouse. If more than one baby is born, the intended parent is responsible for all and required to accept all.
It should be noted that the New York law does not require the surrogate to have had a child previously or that the intended parents have a medical necessity which is the case in some other States. Same-sex males have a medical necessity because at this point scientifically they cannot give birth. Thus, in New York a woman who has the financial means can choose to have a surrogate because of fertility struggles or because she does not want to get fat, vomit in the mornings, take the medical risks, interrupt her career, or because her spouse may want several children and she does not want to carry them all.
The surrogacy agency/ matching program/ assisted reproductive technology provider must be licensed by the NY State Dept. of Health and follow its regulations. It also must adhere to best practices as set forth by the American Society of Reproductive Medicine (ASRM). A known gamete or embryo donor must agree prior to conception, with an intended parent that the donor has no parental or proprietary interest in the gametes or embryos.
The steps to birth by paid surrogacy include the following:
- Intended parent(s) donate or find egg and sperm donors to create embryo.
- Intended parent(s) select a surrogacy agency/ matching program.
- Surrogate and intended parent(s) are matched.
- Medical, psychological, and financial screenings and clearances are conducted.
- Surrogacy agreement, usually 25-65 pages, is negotiated and executed. The executed surrogacy agreement states that the surrogate relinquishes custody, and the intended parent accepts custody. The surrogate or intended parent can terminate the agreement before pregnancy.
- Escrow program and agent is set up.
- Insurance policies and wills are put in place. Intended parents must name a guardian in case of their death.
- Legal clearances are provided to the medical institution, and medical embryo transfer procedures commence.
- A petition is filed in court by the surrogate and intended parent requesting a pre-birth Order/ Judgment of Parentage for the intended parents, typically in the second trimester. The venue is the county where either the surrogate or intended parent resides after the agreement is executed. Venue can also be where the child is born or resides. The judge is not creating parental rights but affirming the parental rights set forth in the contract. There is no home-study as in the adoption process. The attorneys for the surrogate and intended parent must provide a certification, a sworn statement that the surrogacy agreement conforms with the requirements of the statute. If the agreement complies with the statute or even substantially complies with the criteria of the law, then the agreement is enforceable. If there is no substantial compliance, the judge can determine custody pre-birth based on the intent of the parties and best interests of the child to be.
- The hospital is informed of the legal order and the birthing process occurs.
- The intended parents are named on the birth certificate.
- Insurance policies remain in place for twelve months after the birth.
The compensated gestational surrogacy law provides expanded pathways to parenthood that do not rely on biology. LGBTQ people as well as those struggling with fertility issues have increased options. In 2019, before the final version of the bill, feminists like Gloria Steinem were highly concerned about the impact on low income and women of color who due to economic circumstances might become birthing vessels for the rich, and/or privileged. Author Laura Harrison has written a book, entitled, Brown Bodies, White Babies: The Politics of Cross-Racial Surrogacy. Professor Harrison traces the history in America of Black women breastfeeding and raising white children dating back to slavery; from mammies to nannies to now reproductive human machines.
The New York law is highly regulated in an area of family development that could be much more exploitive and dangerous as in the Ukraine or formerly in India, Cambodia, and Thailand before paid surrogacy involving foreign international intended parents was outlawed. It certainly may be better than leaving it illegal in the hands of an underground network. Even other States in America do not protect the surrogate as much as the New York law. Yet, age and brain development(neuroscience), sex, race and class issues persist in this multibillion-dollar industry of reproductive laborers that will have to be studied and monitored closely.
There is also the open issue of the child and later as an adult resulting from paid surrogacy to be informed or have knowledge of that person’s birthing process and the parties involved. What if that person wants to know the surrogate who sang or talked to her/him/them when in the womb, or who the sperm and egg donor were, and their children or other children created from these donors or the same surrogate?
Sherri Donovan & Associates, PC