Compensated surrogacy legalised in New York state

6 April 2021

15 February saw the introduction of a new law in New York state which legalises compensated gestational surrogacy arrangements. The Child Parent Security Act (the “Act”) brings in to force a range of provisions which formalise and regulate Surrogacy agreements.

The Act enables agreements to become enforceable (where various requirements are met) and makes provision for intended parents to apply for pre-birth orders and amendment of birth certificates so that legal parentage and birth documentation is reflective of the intentions of the parties and the social reality for the child.

The aim of the Act is to establish a straightforward path for intended parents making use of fertility treatment, assisted reproduction and gestational surrogacy to become the legal parents of their children.

Until the Act was brought into force, commercial surrogacy was illegal in New York state carrying a criminal penalty. The change in the law represents a welcome development and recognition of the ways in which intended parents decide to start a family and the surrogates who wish to help in that journey. As well as setting out provisions for the recognition of the intended parents as the legal parents of the child, there are various protections and ‘minimum standards’ put in place via the Surrogates Bill of Rights (the “Bill”) to protect surrogates and ensure that their rights, as well as those of the intended parents, are recognised. The Act states that the provisions in the Surrogates Bill of Rights must be included in surrogacy contracts.

The Bill includes various protective provisions including (but not limited to):

  • setting a minimum age for surrogates (21 years old);
     
  • that at least one of the intended parents shall be a US citizen and was a resident of New York state for at least 6 months;
     
  • confirming that both the surrogate and the intended parents are to have independent legal representation of their own choosing throughout the process;
     
  • that a comprehensive medical and life insurance policy will be obtained by the surrogate and funded by the intended parents;
     
  • the completion of a medical evaluation by the surrogate and the option to access counselling services to be funded by the intended parents;
     
  • the right for the surrogate to make all health and welfare decisions concerning herself;
     
  • the intended parents assume all responsibility for all children resulting from the birth; and
     
  • that any payments of compensation or anticipated reasonable expenses are placed in an escrow account with an independent body.

Where a child is born via surrogacy either internationally or in this country, it is the surrogate mother (and her husband, if she is married) who will be the legal parents of the child. This is the case in England despite the fact that there may have been a pre-birth or post-birth process in the country of birth in which legal parentage is transferred to the intended parents. That process is not recognised in England and Wales and therefore an application for a Parental Order is required to formally extinguish the legal parenthood of the surrogate (and her husband, if applicable) and recognise the intended parents as the legal parents of the child. 

At Kingsley Napley we regularly assist intended parents who are considering domestic and international surrogacy, as well as those who are part way through the process or whose child or children have already been born. In international cases, there are often a number of (usually conflicting) legal rules and requirements to consider and it is extremely important to consider the position in the country of birth and to take advice about the English court’s approach to the surrogacy arrangement, the legal and practical implications of bringing your child back to the UK and formalising your legal status as parents.

The law in relation to surrogacy varies greatly from state to state in the US and so if you are considering surrogacy in the USA or anywhere abroad, you must take local specialist advice in the relevant country or state.

Further Information

If you have any questions about the issues raised in this or other blogs in this series, please contact a member of our family and divorce team who will be able to assist you further. You can also visit our International surrogacy guide FAQs.

 

About the author

Olivia Stiles is a Senior Associate in the Family Team. She qualified into the department following completion of her training contract in September 2015. Olivia also did seats in Corporate & Commercial, Dispute Resolution and Criminal Litigation during her training contract.

 

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