New York’s Novel Surrogate’s Bill of Rights Provides Unprecedented Protection for Gestational Surrogates

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

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

Beginning on February 15, 2021, New Yorkers will be able to legally enter into compensated gestational surrogacy arrangements for the first time. One of the last holdout states in the country, New York legislators resisted surrogacy for years, largely out of concerns surrounding the economic disparity between surrogates and the typical intended parent(s), and the risk of exploitation. With the passage of the Child Parent Security Act, New York’s standout new surrogacy law includes the first-in-the-nation Surrogates’ Bill of Rights, codifying the strongest set of protections under any parentage statute in the country.

At the time of the consult, the surrogacy matching program must provide all parties to a surrogacy agreement with written notice of the Surrogate’s Bill of Rights (“SBR”), as set forth under the newly added Article 5-C Part 6 of the Family Court Act. The SBR effectively codifies a set of best practices, affording the surrogate robust rights with respect to health care decision-making, independent legal counsel, health insurance, medical care, life insurance, and behavioral and mental health counseling. With few exceptions, these costs must be covered by the intended parents.

Health care decisions. 

The surrogate has the right to make all health and welfare decisions regarding themself and their pregnancy, including but not limited to whether to consent to a cesarean section or multiple embryo transfer, choice of health care provider(s), whether to terminate or continue the pregnancy, and whether to reduce or retain the number of fetuses or embryos they are carrying.

While the SBR explicitly provides that the surrogate is entitled to make decisions regarding her health and welfare, including whether and when to terminate the pregnancy, questions remain as to the intended parents’ financial obligations if the surrogate declines a request by the intended parent(s) request to terminate or not to terminate. This topic should be considered carefully and memorialized in the agreement.

Independent legal counsel. 

While it is widely accepted that the surrogate is entitled to independent counsel, whether the attorneys must all be licensed in New York was somewhat contentious. Ultimately, it was determined that the parties’ attorneys must be licensed in New York and may not be affiliated, either with one another or with the licensed and registered surrogacy program that matched the intended parent(s) with the surrogate. The SBR also requires the intended parent(s) to pay the surrogate’s legal fees.

Health insurance. 

After the parties are screened by the surrogacy program and a successful match is identified, but before the surrogacy agreement is negotiated, an insurance review must be conducted to ensure there are no exclusions. The surrogate has the right to comprehensive health insurance covering preconception care, prenatal care, major medical treatments, hospitalization, and behavioral health care, not only for the duration of the pregnancy but for one year after the birth of the child, a stillbirth, a miscarriage, or termination of the pregnancy. The cost of all required health insurance coverage must be paid for by the intended parent(s), including all co-payments, deductibles, and any other out-of-pocket medical costs associated with the pregnancy; this includes all unreimbursed expenses, including appeals should coverage be denied for required care at any time while the agreement is in effect. Coverage should be in place at the time of the embryo transfer and may only be waived by the surrogate if the surrogate is not receiving compensation. The insurance coverage requirement may be complicated further as insurance carriers begin offering surrogacy-specific plans.

While the above protections guarantee the surrogate’s right to no-cost health care associated with the pregnancy, the SBR does not address pro-rata sharing of costs where the surrogate’s existing health insurance is more comprehensive than the statute requires, or where an existing policy covers individuals other than the surrogate. For example, a surrogate and the surrogate’s spouse and/or children may be covered under a family plan, the cost of which far exceeds the coverage requirements enumerated in the SBR. Under these circumstances, the attorneys for the parties must carefully negotiate fair and reasonable terms that conform to the statute without rendering the surrogacy arrangement financially untenable for the intended parents.

Mental health counseling. 

The surrogate has the right to obtain a comprehensive health insurance policy that covers behavioral health care and will cover the cost of psychological counseling to address any issues resulting from the surrogate’s participation in the surrogacy arrangement. As with the required health insurance policy, the cost of the counseling coverage must be paid for by the intended parent(s).

Life insurance. 

The surrogate has a right to be provided with a life insurance policy that takes effect prior to the surrogate’s taking any medication or commencing treatment to further embryo transfer. The policy must provide a minimum benefit of $750,000 and must extend throughout the duration of the expected pregnancy and for twelve months after the birth of the child, a stillbirth, a miscarriage, or termination of the pregnancy. The surrogate may choose the beneficiary and the policy must be paid for by the intended parent(s).

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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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