GESTATIONAL SURROGACY IN NEW YORK
A new statute permitting compensated gestational surrogacy will take effect 2/15/2021.
New York Code Section 8-122 declares unequivocally: “Surrogate parenting contracts are hereby declared contrary to the public policy of this state, and are void and unenforceable.”
Compensated surrogacy contracts are illegal in New York and those in violation are subject to fines.
Uncompensated Gestational Surrogacy contracts are unenforceable but, unlike compensated agreements, they are not prohibited. To qualify as an uncompensated arrangement, the surrogacy arrangement must be carefully structured. The Gestational Carrier can receive only those payments and reimbursements that are allowed in New York adoptions, e.g., medical and hospital expenses directly related to the pregnancy, and living expenses for 60 days before and 30 days after placement. All other payments are expressly prohibited. Those in violation are potentially subject to criminal penalties.
The woman who gives birth is defined as the “birth mother” in New York. A Gestational Carrier, therefore, is a “birth mother” in New York and has preferred parental status with respect to a child she carries but is not genetically related to, even above the parental status of the genetic Intended Parents.
A document may be prepared prior to entering into a compassionate Gestational Carrier arrangement, but it must be clear both to the parties. The document is solely a “statement of intent” and is not legally binding; therefore, the terms are not enforceable. Moreover, the compassionate Gestational Carrier (or “birth mother” as she is deemed in New York) may not take any enforceable steps to relinquish custody of the child or to relinquish her parental rights to the child until after the child is born.
Do courts grant pre-birth parentage orders? No
PRE-BIRTH PARENTAGE ORDERS
Can both Intended Parents be declared the legal parents in a post-birth order, if at least one parent is genetically related to the child, in a compassionate surrogacy case?
- Married heterosexual couple using own egg and own sperm: Yes
- Married heterosexual couple using an egg donor or sperm donor: No, only the biological parent can obtain an order, requiring a 2-step process: The Intended Mother must adopt the child.
- Unmarried heterosexual couple using own egg and own sperm: Yes
- Unmarried heterosexual couple using an egg donor or sperm donor: Same as for a married heterosexual couple using a donor.
- Same-sex couple using an egg donor or sperm donor: Yes, if the Intended Parents are female. Same-sex fathers must adopt the child.
- Single parent using own egg or sperm: Possibly, but this has never been done.
Can both Intended Parents be declared the legal parents in a post-birth order, if no parent is genetically related to the child, in a compassionate surrogacy case?
- Married heterosexual couple: No, a full adoption would be necessary.
- Unmarried heterosexual couple: No
- Same-sex couple: No
- Single parent: No
What are the bases for venue? The county of the Intended Parents’ residence, the county of the Gestational Carrier’s residence, or the county of the child’s birthplace.
Do results vary by venue? Yes
Is a hearing required to obtain a post-birth order? It varies.
Is a post-birth order possible in a compassionate surrogacy case in New York based on a Gestational Carrier’s plan to deliver in New York, if no party lives in New York? Unclear; it may depend on whether parties all consent.
Will New York Vital Records honor a parentage order from another state? No, this is highly unlikely if the parentage order involved a paid surrogacy.
What is the typical time frame to obtain a birth certificate after delivery? A birth certificate in New York City can take up to six months. It can take less time if expedited or if the birth certificate is issued outside of New York City.
SAME SEX COUPLE
How are same-sex parents named on the final birth certificate? Parent and Parent
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier? Yes, if the biological father signs an affidavit of paternity at the hospital. If the Gestational Carrier is married, a paternity hearing through the courts must be obtained.
Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier? Yes, both fathers can be named after removing the Gestational Carrier’s name, if the Gestational Carrier terminates her parental rights and the non-genetic father obtains a second-parent adoption.
Can the non-biological parent obtain in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in New York (i.e., neither of the Intended Parents lives in New York)? Most likely no, but an argument can be made to the judge.
If no, will Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate? Yes, therefore, this is a safer alternative.
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.
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, with the exception of one district court in Brooklyn, NY, which refused to allow a same-sex couple to obtain second parent adoptions when they were both named already on the pre-birth parentage order. That order, however, has not been followed in other New York courts.
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, but New York Code Section 5-73 only refers to sperm donors.
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? No
TRADITIONAL SURROGACY IN NEW YORK
New York Code Section 8-122, cited above for Gestational Surrogacy, applies also to Traditional Surrogacy. Traditional Surrogacy would only be permitted in compassionate cases in which the Traditional Surrogate does not receive compensation. Also, the non-biological parent would be required to obtain a second parent adoption.
State law information provided by the following attorneys practicing Reproductive Law in this state:
Elizabeth Swire Falker
New York, NY
East Hampton, NY
Other attorneys practicing Reproductive Law in this state:
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