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GESTATIONAL SURROGACY IN NEW YORK

New York law permits gestational surrogacy. NY Family Court Act §§ 581-203, 581-401, 581-406.

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

 

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.

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 to get a parentage order. (Note: In practice, courts generally grant pre-birth orders where neither parent is a resident if the Gestational Carrier is a current resident.)

Will New York Vital Records honor a parentage order from another state?  Yes

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 to international parents.

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 a donor’s rights 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 are 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

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

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

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

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

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

Robin Fleischner
robin@adoptsurrogatelaw.com

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

Jennifer P. Maas, PLLC
New York, NY
Islandia, NY
www.jpmfertilitylaw.com
jennifer@JPMfertilitylaw.com 

Janene Oleaga, Esq.
Huntington, New York
Portland, Maine
janene@mainereproductionlawyer.com 
www.mainereproductionlawyer.com
207-200-6780

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.

  1. “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.
  2. “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.
  3. “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.
  4. “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.
  5. “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.