Changing Tides: Legalizing Surrogacy in New York

The journalists, Pamela Miller and Valerie Cohen, recently wrote about the pending New York surrogacy legislation in the New York Law Journal (March 18, 2016):

"New York is on the verge of radically changing the way it regulates assisted reproduction and surrogacy. Currently, it is illegal in New York for parents to pay a surrogate to carry a child for them. The Child-Parent Security Act (CPSA), now under consideration by the Legislature and Governor Andrew Cuomo's Task Force on Life and the Law, would legalize such payments and make surrogacy agreements judicially enforceable. S.2765, 2015-16 Reg. Sess. (N.Y. 2015); A.4319, 2015-16 Reg. Sess. (N.Y. 2015). The CPSA would replace New York's ban on compensated surrogacy with a regulatory regime more detailed than those of the great majority of states. It would also augment the process for establishing parental rights in New York, especially when assisted reproductive technology is involved."

 The ban in New York stems from the Baby M case that had to do with traditional surrogacy, i.e., that the surrogate was carrying a baby conceived from her own egg so she would always be the legal mother unless and until she agreed to terminate her parental rights. Currently, surrogacy centers around gestational surrogacy where a woman who is to become surrogate agrees to carry an embryo made from an egg that is not hers and the sperm of either the intended father or a donor. Intended parents, in such cases, make their own embryos either from their own egg and sperm or from donor eggs and/or donor sperm. Even embryos donated to them can be used. Embryo donation and embryo adoption are becoming more common due to the numbers of unused embryos currently in storage.

If the CPSA is signed into law, New York will join the 22 states directly regulating surrogacy. Proposed in 2012 by Assembly Member Amy Paulin (D-Scarsdale) and later cosponsored by Senator Brad Hoylman (D-Manhattan, 27th District)?himself a parent of a child born through surrogacy?the CPSA permits compensated surrogacy agreements, subject to several restrictions, and provides mechanisms for establishing the legal parentage of children conceived with assisted reproductive technology.

The CPSA repeals the current laws that regulate parentage of children born of artificial insemination. Parts 2 and 6 of the CPSA's seven sections set out the types of proceedings for obtaining a "Judgment of Parentage"?a court order that confirms legal parentage?and the requirements for obtaining a judgment of parentage. A judgment of parentage may be issued prior to birth, though it only becomes effective upon birth.

Part 4 authorizes gestational carrier agreements and describes their requirements. A gestational surrogate must: (1) be at least 21 years old; (2) have undergone a medical evaluation; (3) have independent legal counsel; and (4) have health insurance that covers "major medical treatments" for the relevant period. Intended parents may be single, married, or "intimate partners" and also must have independent legal counsel.

The gestational agreement must be signed, and payment must be placed in an escrow fund before any medical procedures commence. The gestational carrier and her spouse, if any, must agree to surrender her or their parental rights immediately upon the birth of the child, and the intended parents must agree "to accept custody of all resulting children immediately upon birth regardless of number, gender, or mental or physical condition" and assume sole responsibility for the child's support from birth. In addition, the gestational surrogate must have the right to use a health care practitioner of her choosing, and the gestational agreement may not limit the right of the carrier to safeguard her health.

 Part 4 also includes contingency provisions for the termination of the gestational agreement, the impact of the gestational surrogate's subsequent spousal relationship, and the inability to obtain a judgment of parentage (in which case parentage is determined according to the best interests of the child, considering genetics and the parties' intent). The gestational carrier or the intended parents may terminate the gestational agreement after a judgment of parentage has been issued but before the gestational carrier becomes pregnant.

The parties are entitled to "all remedies available at law or equity" except where limited by the gestational agreement itself. The New York Supreme Court is granted exclusive jurisdiction to resolve gestational agreement disputes, other than regarding parentage. Notably, the CPSA bars "specific performance"?requiring "[the gestational carrier] to be impregnated"?as a remedy for the gestational carrier's breach. 

Part 5 authorizes, but limits, compensation to sperm, egg, and embryo providers and gestational surrogates. Although the CPSA does not prescribe compensation amounts, it requires that payment "be reasonable and negotiated in good faith between the parties" and "not exceed the duration of the pregnancy and recuperative period of up to eight weeks after the birth of the child."

The CPSA draws a somewhat fine distinction between "reimbursement" and "compensation." Specifically, a sperm, egg, or embryo provider "may receive reimbursement from an intended parent or parents for economic losses incurred in connection with a donation which result from the retrieval or storage of [sperm, eggs,] or embryos" and "[p]remiums paid for insurance against economic losses directly resulting from the retrieval or storage of [sperm, eggs,] or embryos for donation." New York Law Journal, March 18, 2016 (Miller and Cohen)

It the proposed legislation becomes law, it will be another favorable and positive boost for surrogate parenting. The State of New York will have no prohibition against surrogacy and therefore, more medical clinics will be able to offer surrogacy medical procedures to patients, lawyers will be able to do legal work in New York to assist intended parents becoming parents through surrogacy in New York, and women in New York who desire to become surrogates will be able to apply and then help deserving parents attain their dream of parenthood.