Compensated Surrogacy Brings Sweeping Change for New York Families

By Jessica Woodrow, Esq.
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This is the first installment in the four-part series 

The Child-Parent Security Act: Embarking on the Surrogacy Journey

On February 15, 2021, the Child-Parent Security Act (“CPSA”) will take effect, eliminating New York’s longstanding proscription against compensated gestational surrogacy. Signed into law by Governor Andrew Cuomo on April 2, 2020, the CPSA will not only allow New Yorkers to contract with gestational surrogates for the first time, but also streamlines the process for establishing parentage of children born through third-party reproduction. Prior to the passage of the CPSA, compensated gestational surrogacy was illegal in New York State and punishable by fines and criminal sanctions. New York was one of the last states to recognize intended parents’ right to contract with gestational surrogates; when the CPSA takes effect this month, Michigan will be the only state in the country that criminalizes compensated gestational surrogacy. 

Gestational surrogacy contracts in New York will be subject to strict statutory requirements. Before entering into a surrogacy arrangement, it is essential to understand how New York law will affect parties’ respective surrogacy journeys. The CPSA also addresses procedures for securing a judgment of parentage, sets forth strict requirements for drafting enforceable surrogacy agreements, and directs the Department of Health to promulgate rules and regulations for surrogacy programs and assisted reproduction providers to assure the health and safety of surrogates and gamete donors. This Part I of the series will give a general overview of the scope and breadth of the CPSA. Part II will discuss eligibility for entering into surrogacy agreements. Part III will discuss The Surrogate’s Bill of Rights. Part IV will discuss parentage proceedings. 

Surrogates’ rights.

Compared to other states’ surrogacy statutes, the CPSA is uniquely protective of surrogate’s rights. The newly-minted Surrogate’s Bill of Rights, unprecedented in surrogacy law, specifically enumerates robust surrogates’ rights relating to: health and welfare decision-making; independent legal counsel; cost-free health insurance, medical care, mental health counselling, and life insurance; and termination of the surrogacy agreement prior to becoming pregnant. For a more detailed discussion of the Surrogate’s Bill of Rights, see part III of this series,New York’s Novel Surrogate’s Bill of Rights Provides Unprecedented Protection for Gestational Surrogates.

The CPSA applies to gestational surrogacy only.  

While CPSA legalizes gestational surrogacy in New York for the first time, this only applies to surrogacy arrangements wherein the surrogate has no genetic relationship to the child. This means that “traditional” (i.e., genetic) compensated surrogacy agreements remain prohibited under New York law. Traditional surrogates who accept compensation are subject to severe criminal sanctions, and any agreement between the surrogate and the intended parents is unenforceable.

Compensation concerns.

The surrogate’s base compensation is determined by the medical risks, physical discomfort, inconvenience, and responsibilities of the surrogate. The surrogate may not be compensated for releasing her parental rights, nor may compensation be based upon genotypic or phenotypic characteristics of the child. 

The surrogate’s base compensation and reasonably anticipated expenses must be placed in escrow with an independent escrow agent before the surrogate begins taking medication or commencing treatment to further embryo transfer. The escrow agent must consent to the jurisdiction of New York courts for all enforcement proceedings; must be licensed in New York; must be independent from all attorneys representing the parties to the agreement. 

Surrogacy programs must be licensed and registered by New York State.

The CPSA requires that all surrogacy programs operating in New York must be licensed and registered. The New York State Department of Finance and the New York State Department of Health are required to draft and implement “best practices” regulations for surrogacy professionals. However, while these programs are subject to regulation, it is unclear whether intended parents’ use of a surrogacy program is required under the statute.

Department of Health to regulate the practice of gestational surrogacy.

Under the newly added Article 25-B of the Public Health Law, the Department of Health will create a voluntary central tracking registry of consenting surrogates. The purpose of this anonymous registry is to establish a means for gathering and maintaining accurate information about surrogates, including the number of times a person has acted as a surrogate, the surrogate’s health information, and other information deemed appropriate by the commissioner. 

Under the statute, the Department of Health is also required to promulgate guidelines and procedures for obtaining fully informed consent from potential surrogates, including but not limited to a full disclosure of any known or potential health risks and mental health impacts associated with surrogacy. Further, the Department must develop and distribute general information relating to gestational surrogacy and develop guidelines and protocols to assist physicians in screening potential surrogates and to reduce conflicts of interest among physicians providing health care services to surrogates. 

Parentage proceedings under the CPSA.

The CPSA sets forth clear legal procedures for obtaining a judgment of parentage for children born through sperm, egg or embryo donation and/or with the assistance of a gestational carrier. While the CPSA also addresses parentage of children conceived through assisted reproduction (i.e., where there is a gestating intended parent and no surrogate), its most detailed provisions address the parentage of children born through surrogacy arrangements. Under the new statute, parentage is determined by the intention to parent rather than by genetic connection. The CPSA also permits cryopreserved embryos created by spouses or partners to enter into an agreement transferring sole dispositional control of the embryo(s) to one party and absolving the former spouse of parental responsibility. While the CPSA streamlines these procedures, securing a judgment of parentage is complicated and time consuming, requiring careful planning with the assistance of a knowledgeable attorney. For a more detailed discussion of Parentage Proceedings, see part IV of this series,Parentage Proceedings Under the Child Parent Security Act.

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For many intended parents, the decision to pursue gestational surrogacy is arrived at after a series of hardships and heartbreaks. Even after the decision is made, the process may be as complicated as it is rewarding. Before entering into a surrogacy agreement in New York, intended parents and surrogates alike should be certain that surrogacy is the right choice. This means committing to work together with knowledgeable professionals who can successfully guide you through this complex process while ensuring that you understand the risks and benefits of surrogacy arrangements.

If you are considering gestational surrogacy, either as an intended parent or a prospective surrogate, our firm can help you determine whether surrogacy is right for you. From explaining how New York surrogacy law applies to your unique circumstances, to negotiating and drafting compliant surrogacy agreements, to securing parental rights as soon as possible after the birth of a child, Weiss Zarett can guide you through the process even as the CPSA continues to be developed.

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Jessica Woodrow is an Associate Attorney in the litigation and administrative proceedings practice group, handling matters involving all aspects of civil litigation with a primary practice focus on healthcare law. Ms. Woodrow has spent years studying the intersection of contract law and reproductive technology, and she is excited to be among the first practitioners in New York to assist clients in pursuing their dreams of starting or growing a family through surrogacy. She can be reached at jwoodrow@weisszarett.com or 516-627-7000.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a New York law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, employment counseling and controversies, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

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