Gestational Surrogacy in New York

Same-Sex Couple

NY Surrogacy Bill of Rights

The Bill of Rights apply to any Person acting as Surrogate in the state of New York, notwithstanding any Surrogacy Agreement, judgment of parentage, memorandum of understanding, verbal agreement or contract to the contrary. Except as otherwise provided by law, any written or verbal agreement purporting to waive or limit any of the rights in the Bill of Rights is void as against public policy. The rights are not exclusive and are in addition to any other rights provided by law, regulation, or a Surrogacy Agreement that meets the requirements of the Bill of Rights.

• “Assisted reproduction” means a method of causing pregnancy other than sexual intercourse and includes but is not limited to:
  -intrauterine or vaginal insemination;
  -donation of gametes;
  -donation of embryos;
  -in vitro fertilization and transfer of embryos; and
  -intracytoplasmic sperm injection.
• “Child” means a born individual of any age whose parentage may be determined under the New York Article 5-C of the Family Court Act or other law.
• “Person acting as Surrogate” or “Surrogate” means an adult person, not an Intended Parent, who enters into a Surrogacy Agreement to bear a Child who will be the legal Child of the Intended Parent so long as the Person acting as Surrogate has not provided the egg used to conceive the resulting Child.
• “Intended parent” or “IP” is an individual who manifests the intent to be legally bound as the parent of a Child resulting from assisted reproduction or a Surrogacy Agreement, provided they meet the requirements of this article. Intended Parent is defined to include Intended Parents and vice versa.
• “Surrogacy Agreement” is a written agreement between at least one intended parent and a Person acting as a Surrogate intended to result in a live birth where the Child will be the legal Child of the Intended Parents.

Health & Welfare Decisions – A gestational Surrogate has the right to make all health and welfare decisions regarding themself and their pregnancy. This includes:

• consent to a cesarean delivery,
• consent to a multiple embryo transfer,
• choice of health care practitioner,
• decision to continue or end the pregnancy,
• decision to keep or reduce the number of fetuses or embryos they are carrying, and
• decisions about other related health and welfare issues.

Independent Legal Counsel – A gestational Surrogate has the right to legal counsel of their choice, paid for by the Intended Parents (defined for purposes of this Bill of Rights to include a single legal parent).

• The legal counsel must be licensed to practice law in the state of New York, and should have experience with surrogacy.
• The legal counsel represents the Surrogate during development and execution of the Surrogacy Agreement.
• The legal counsel represents the Surrogate and their interests throughout the surrogacy process.
• The legal counsel must not also represent the Intended Parents.

Health Insurance & Medical Costs – A gestational Surrogate has the right to a comprehensive health insurance policy that covers preconception care, prenatal care, major medical treatments and hospitalization as well as a Surrogate pregnancy.

• The insurance plan will provide coverage for the entire surrogacy period, the entire pregnancy, and twelve months after childbirth or the end of the pregnancy.
• The policy will cover medication to prepare for in vitro fertilization and embryo transfer.
• This insurance plan will cover the cost of psychological counseling to address any issues related to the surrogacy.
• The insurance plan is paid for (directly or by reimbursement) by the Intended Parents.
• The Intended Parents will also pay for or reimburse the gestational Surrogate for any co-payments, deductibles, or other out-of-pocket expenses associated with the pregnancy, childbirth, and postnatal care for 12 months after childbirth or after the end of the pregnancy.
• An exception to the above is that a gestational Surrogate who is not receiving compensation for the surrogacy may waive the right to have the Intended Parents make such payments or reimbursements.

Life Insurance – A gestational Surrogate must be provided a life insurance policy that takes effect before starting any medication or any treatment in preparation for the embryo transfer.

• The policy must provide a minimum benefit at least equal to: $750,000, OR the maximum amount the gestational Surrogate qualifies for, if this amount is less than $750,000.
• The policy term must cover the duration of the pregnancy and twelve months after the birth of the Child, a stillbirth, a miscarriage, or termination of the pregnancy
• The gestational Surrogate has the right to choose the beneficiary or beneficiaries of the policy.
• The policy must be paid for by the Intended Parents.

Termination of Surrogacy Agreement – A gestational Surrogate has the right to end a Surrogacy Agreement before becoming pregnant by means of Assisted Reproduction.