Brooklyn Child Custody Lawyer Explains Gestational Surrogacy in New York

We’ve all seen the agonizing stories in the news about child surrogacy gone wrong. A couple, the “intended parents” hires a woman (a surrogate) to have a child for them, and then the intended parents and the surrogate get entangled in a prolonged battle over parental rights.

New York, for the longest time, had tried to avoid these tragedies by being one of a handful of states not allowing gestational surrogacy. This changed with the Child-Parent Security Act (or Act), which as of February 15, 2021, allows gestation surrogacy contracts in New York. The Act provides the mechanism for the contract, and also provides the rights and responsibilities for the intended parents and the surrogate.

Rights for Intended Parents

The Child-Parent Security Act provides to the intended parents the following assurances:

• There is a legal relationship between the intended parents and the child, from the time the child is born; and
• The surrogate is healthy and capable of pregnancy; and
• If the intended parents divorce after the surrogacy contract executed, this does not affect the validity of the agreement.

Requirements to be a Gestational Surrogate

The person acting as a surrogate must be at least 21 years old, give informed consent to the surrogacy, and be a United States citizen or lawful permanent resident. They must not have provided the egg used to conceive the child. They also must have passed a medical evaluation related to the anticipated pregnancy. Finally, the surrogate must meet any other requirements deemed necessary by the commissioner of health.

Rights of the Gestational Surrogate

The act also provides protections for the surrogate, as follows:

Health and Welfare Decisions. The surrogate “has the right to make all health and welfare decisions regarding themselves and their pregnancy.” This includes deciding whether to have a cesarean section, choosing the healthcare provider, and terminating or continuing the pregnancy. They may also choose whether to keep or reduce the number of fetuses they carry.

Legal Assistance. The surrogate may choose to be represented by their own NY-licensed lawyer during contractual negotiations and throughout the surrogacy process. The intended parents pay for this independent counsel.

Marriage. If the surrogate marries after the contract has been signed, the spouse of the surrogate is not required to consent to the agreement for it to remain valid. Nor shall this spouse have any parental rights associated with the surrogate’s child.

Termination: The surrogate, the surrogate’s spouse, or either of the intended parents may terminate the surrogacy agreement before the surrogate becomes pregnant by means of assisted reproduction. The intended parents are liable for any surrogate medical expenses incurred up to the point of termination. Also, unless the contract provides otherwise, the surrogate is entitled to any payments received prior to termination.

Additional Protections. The new law also gives the surrogate the right to the following, all paid for by the intended parents:

• A comprehensive health insurance policy for the term of the surrogacy and twelve months after the pregnancy.
• Psychological counseling.
• Life insurance policy.

Avoid Tragedy

Gestational surrogacy can be a benefit for the intended parents, surrogate, and resulting child. However, there are a lot of pitfalls along the way, even with the new law. If you’ve hired a surrogate and they’ve decided they want parental rights, call our family law attorneys today to make sure your rights as parents of the resulting child are respected.