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GESTATIONAL SURROGACY IN NEW YORK

Effective February 15, 2021, gestational surrogacy is permitted by statute in New York. The new statute, the Child Parent Security Act (CPSA), permits compensated gestational surrogacy for the first time and repeals New York’s existing statute that declares compensated surrogacy contracts void and unenforceable.

Note: Amendments have been proposed to clarify some of the issues raised in the initial version of the Act.

Do courts grant pre-birth parentage orders?  Yes, under the new statute, courts will grant such orders, but the order will not be effective until birth.

Note: The statute currently applies only to Intended Parents who currently reside in New York State and at least one parent has been a resident for at least six months. (Check back here for any changes to this requirement.)

PRE-BIRTH PARENTAGE ORDERS

Can both Intended Parents be declared the legal parents in a pre-birth order, if at least one parent is genetically related to the child?

  • Married heterosexual couple using own egg and own sperm: Yes
  • Married heterosexual couple using an egg donor or sperm donor: Yes
  • Unmarried heterosexual couple using own egg and own sperm: Yes
  • Unmarried heterosexual couple using an egg donor or sperm donor: Yes
  • Same-sex couple using an egg donor or sperm donor: Yes
  • Single parent using own egg or sperm: Yes

Can both Intended Parents be declared the legal parents in a pre-birth order, if no parent is genetically related to the child, in a surrogacy case?

  • Married heterosexual couple: Yes
  • Unmarried heterosexual couple: Yes
  • Same-sex couple: Yes
  • Single parent: Yes

What are the bases for venue?  The county where the Intended Parents reside any time after the GC Agreement is signed; the county where the Gestational Carrier resides any time after the GC Agreement is signed; or the county where the child was born or resides.

Do results vary by venue?  No

Is a hearing required to obtain a pre-birth order? No, but some judges may require an appearance, or at least a virtual appearance. This requirement may be clarified in amendments to the Act.

Is a pre-birth order possible in New York based on a Gestational Carrier’s plan to deliver in New York, if no party lives in New York? No. Either the GC or at least one parent must have been resident for 6 months at the time the GC Agreement is signed in order to get a parentage order.
(Note: The current bill is unclear whether it is enough for the GC to be resident if neither parent is a resident. Check back here for clarifying amendments to the Act.)

Will New York Vital Records honor a parentage order from another state?  Section § 4138 of the New York Public Health Law states: ”A new certificate of birth shall be made whenever:. . .(b) notification is received by, or proper proof is submitted to, the commissioner from or by the clerk of a court of competent jurisdiction or the parents, or their attorneys, or the person himself, of a judgment, order or decree relating to the parentage.” Until the CPSA is effective and Vital Records is presented with an out-of-state parentage order, it is uncertain whether Vital Records will honor such a parentage order or whether Vital Records will refuse to honor such an order, thereby requiring a domestication process in such cases.

What is the typical time frame to obtain a birth certificate after delivery?  While historically a birth certificate in New York City can take up to 6 months, it can take less than 6 months if expedited or outside of New York City; e.g., in upstate NY it takes 3-6 months.

SAME SEX COUPLE

How are same-sex parents named on the final birth certificate?  Parent and Parent; Mother and Mother; Father and Father.

Can an international same-sex male couple obtain an initial birth certificate naming the biological father only?  No, the CPSA does not apply to international intended parents. It is questionable whether it even covers out-of-state domestic intended parents. (Check back here once clarifying amendments are obtained.)

Alternatively, can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier?  Not applicable – The statute does not apply.

Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier?  Not applicable. 

Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in New York?  Yes, so long as the second parent adoption is filed within 90 days of the birth of the child in the county where the child was born.

If no, will Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate?  If the child was born in NY and there is an adoption order from another state, NY will issue an amended birth certificate upon receipt of the order of adoption.

SECOND PARENT & STEPPARENT ADOPTIONS FOR NEW YORK RESIDENTS

Note: This situation typically arises if the child is born outside of the state. The parents then return to New York to obtain a second-parent adoption or stepparent adoption in New York. (It is also relevant for second-parent adoptions if the child was born in NY.)

Will courts in New York grant second-parent adoptions or stepparent adoptions to heterosexual couples living in New York?  Yes
Does the couple need to be married?  No

Will courts in New York grant second-parent adoptions or stepparent adoptions to same-sex couples living in New York?  Yes
Does the couple need to be married?  No

EGG AND SPERM DONATION

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?  Yes. The CPSA addresses donors in Sec. 581-302. A known gamete or embryo donor must agree, prior to conception, with the intended parent that the donor has no parental or proprietary interest in the gametes or embryos. For anonymous donors, if the donation was initially made to a cryobank or under a doctor’s supervision, a letter from the doctor or cryobank explaining that the donation is anonymous will suffice.

If the statute only refers to sperm donors, is there a case law interpreting this statute to provide the same protection in the egg donor context? Not applicable. The statute refers to gamete donors as well as embryo donors.

TRADITIONAL SURROGACY IN NEW YORK

The new NY law explicitly does not apply to a woman who uses her own egg to conceive. Traditional Surrogacy (or “genetic surrogacy,” as it is called in NY) agreements, is still banned in NY and parties entering into such agreements are subject to both criminal and civil penalties. Non-compensated genetic surrogacy agreements are not enforceable, but parties to such agreement may establish parentage through an adoption (as the genetic surrogate would be treated as the birth mother).


State law information provided by the following attorneys practicing Reproductive Law in this state:

New York Attorneys for Adoption and Assisted Family Formation (NYAAFF)

Attorneys practicing Reproductive Law in this state:

Denise E. Seidelman, Esq.
Bronxville, NY
dseidelman@adoptionlawny.com
www.adoptionlawny.com
(914) 779-1050

Joseph Williams
Albany, NY
jwilliams@theCDSLawFirm.com
518-436-4170

Amy Demma
East Hampton, NY
amy@lawofficesofamydemma.com
(516) 662-7532

Brian Esser
brian@esserlawoffice.com
www.esserlawoffice.com

Victoria T. Ferrara
Fairfield, CT
New York, NY
vferrara@theferraralawgroup.com 
www.worldwidesurrogacy.org

Nina E. Rumbold, Esq.
nrumbold@adoptionlawny.com
www.adoptionlawny.com

Elizabeth Swire Falker
New York, NY
Liz@StorkLawyer.com
www.storklawyer.com 
(877) 786-7552

Anthony M. Brown
brown@awclawyer.com
www.timeforfamilies.com

Yifat Shaltiel
ys@yslawgroup.com
www.yslawgroup.com

Melissa Brisman
Montvale, NJ
New York, NY
melissab@reproductivepossibilities.com
(201) 505-0099

Robin Fleischner
robin@adoptsurrogatelaw.com

Gregory A. Franklin, Esq.
Rochester, New York
GFranklin@afylaw.com

Kathleen (“Casey”) Copps DiPaola
Albany, New York
kdipaola@theCDSLawFirm.com
www.thecdslawfirm.com