What You Should Know if You Want to Use a Surrogate in New York

What You Should Know if You Want to Use a Surrogate in New York

For many years, New York was behind the times when it came to recognizing the nontraditional ways in which people have children. The practice of paid surrogacy was banned. But on February 15, 2021, landmark legislation went into effect that allows couples and individuals to have a child by a surrogate they legally hire for pay.

The Child Parent Security Act (CPSA) includes specific requirements for how compensated surrogacy arrangements can be made. Important provisions of the law concern:

  • Genetic parentage — The CPSA applies when an embryo created from an egg belonging to someone else is transferred to the surrogate by in vitro fertilization. If the surrogate’s own egg is used for the pregnancy, a paid surrogacy agreement will not be enforceable in New York.
  • The contract — The surrogacy agreement should be negotiated and signed after it is determined that the surrogate is eligible and before she begins to prepare for the embryo transfer. Through their lawyers, the intended parents and surrogate can negotiate matters pertaining to pay, communication about the child’s development, remedies for a breach of contract and other issues of concern.
  • Legal parentage — The intended parents can petition the court for legal parentage after the surrogate agreement is signed. They will have full custody of the child once he or she is born.
  • Surrogate’s rights — The surrogate has the right to make decisions regarding her health and the pregnancy, including whether she is willing to carry multiple embryos. She also has the right to terminate the pregnancy.
  • Surrogate’s compensation — The surrogate has the right to be compensated for her services, though no minimum or maximum compensation amount is specified in the CPSA. The intended parents must also cover the costs of the surrogate’s health insurance and life insurance prior to and during the pregnancy and for a year after the birth.
  • Attorney representation — The intended parents pay the surrogate’s legal costs. The surrogate chooses her own lawyer without input from the parents and the parents have no attorney-client relationship with that lawyer.
  • Age, residency and legal status — A surrogate must be at least 21 years old. Either the surrogate or at least one of the intended parents must live in New York and at least one parent must be a U.S. citizen or lawful permanent resident.

A surrogacy agreement can be enforced only if it is in substantial compliance with the CPSA. If you are considering surrogacy, speak with a family law attorney knowledgeable in surrogate pregnancy and parentage. The attorneys at Bryan L. Salamone & Associates, P.C. in Melville, New York advise hopeful parents and surrogates throughout Long Island. To schedule a free consultation with a caring member of our team, call 1.631.479.3839 or contact us online.

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