Thanks to the Child-Parent Security Act (CPSA) which became effective in 2021, New York became the 48th state in the United States to legalizecommercial surrogacy.If you choose to establish legal parental rights through assisted reproductive technology (ART) in the Empire State, here are the legal requirements for pursuing a surrogate located in New York:
The parties need to have separate independent counsel of their own choosing throughout the surrogacy agreement drafting and negotiation.
The spouse of the surrogate must be a party to the surrogacy agreement unless they are separated pursuant to a written agreement of separation or have lived apart at least three years;
The parties must sign the surrogacy agreement before two witnesses and prior to commencement of medical procedures or medication;
If the surrogate is compensated, the funds for base compensation and anticipated expenses must be placed into an escrow account prior to any medical procedure other than medical evaluations to determine a surrogate’s eligibility;
The surrogacy agreement must disclose how the intended parents will cover medical expenses, and any health insurance plan must be reviewed and summarized;
The parties must be identified, as well as the source of the gametes used;
The surrogacy agency must be licensed and registered in New York and their contact information provided;
The attorneys need to be identified and the surrogate must acknowledge that she received the Surrogate’s Bill of Rights from her attorney.
Under New York Law, the Surrogate Bill of Rights providesthe surrogate has a right to:
Make all health and welfare decisions about themselves and pregnancy including:
- The right to make decisions to continue or end a pregnancy,
- Choice of a healthcare practitioner,
- Number of embryos transferred, and
- The right to consent cesarean delivery;
Have an independent New York licensed attorney paid for by intended parents;
Comprehensive health insurance coverage that covers the entire surrogacy process, mental health coverage, and twelve months after the childbirth or end of pregnancy which the intended parents shall pay for a compensated surrogate’s out-of-pocket medical expenses during the same time frame;
A life insurance policy of at least $750,000 extending twelve months after birth or termination of pregnancy;
A right to terminate a surrogacy agreement before pregnancy.
In addition, the intended parents must agree to execute a will prior to the embryo transfer designating a guardian for the resulting children.
There are additional requirements which we have not discussed for purposes of brevity.
Fulfilling all legal requirements makes each intended parent a parent of the child by law and neither the surrogate nor spouse will be a parent of the child. To obtain a prebirth order in New York, as of the date of this writing, at least one intended parent must be a US citizen or permanent resident and a resident of New York and the surrogate must be a New York resident.
If you have read this far and have followed our other blog articles, you might notice that New York imposes additional requirements above and beyond those of other states we are licensed in, including California, Illinois and Washington state. That is true. New York prides itself on having a robust, surrogate-friendly law and is unique by offering a Surrogate’s Bill of Rights.
If you are interested in a surrogate or egg donation within New York state, please contact Tsong Law Group and we will assist you.