Entering Into Surrogacy Agreements Under the Child-Parent Security Act

This is the second 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 streamline the process for establishing parentage of children born through third-party reproduction.

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. Navigating these complex waters requires the skill and experience of a licensed attorney. In fact, the statute requires that the parties to a surrogacy agreement must be represented by separate legal counsel; that the attorneys must be licensed to practice in New York; and that the attorneys are not affiliated with one another, or with the licensed and registered surrogacy program that facilitated the intended parent-surrogate match. Depending on your situation, the following considerations are important in planning your surrogacy journey.

Eligibility Requirements for Intended Parent(s).

The following requirements must be met in order to meet the definition of an “Intended Parent” for purposes of entering into a surrogacy agreement in New York:

• At least one intended parent must be a United States citizen or lawful permanent resident.
• At least one intended parent must have been a New York resident for at least six months.
• The intended parent(s) must be represented by independent legal counsel licensed to practice in New York throughout the contractual process and for the duration of the contract, and the attorney may not be affiliated with counsel for the surrogate or with the surrogacy program that matched the intended parent(s) with the surrogate.
• Spouses must enter into the agreement as intended parents together; an adult individual who is in a spousal relationship may enter into a surrogacy agreement without his or her spouse only if the spouses are living separate and apart for at least three years prior to execution of the agreement, or if the spouses are living separate and apart pursuant to a written separation agreement or a judgment of separation or divorce. Where the spouse of an intended parent is not a necessary party to the contract, he or she has no rights or obligations to the child.

Eligibility does not depend on an intended parent’s gender or marital status. Unmarried individuals may enter into a surrogacy agreement, as may any two adult who are “intimate partners” together. This last requirement is noteworthy in that “intimate partners” is not defined to include only romantically involved partners; rather, the language of the statute appears to allow any two individuals to undertake a surrogacy journey together, regardless of the platonic nature of their relationship. Likewise, same- and opposite-sex couples and single parents alike can obtain a Judgement of Parentage.

Eligibility Requirements for Gestational Surrogates.

The following requirements must be met in order to meet the definition of a “Surrogate” for purposes of entering into a surrogacy agreement in New York:

• The surrogate is at least 21 years old.
• The surrogate is a United States citizen or a lawful permanent resident. If at least one intended parent is not a resident of New York for at least six months, the surrogate must be.
• The surrogate did not provide the egg used to conceive the child.
• The surrogate has undergone a medical evaluation and has been screened for health conditions that may pose risks to the surrogate or embryo during the pregnancy.
• The surrogate gives fully informed consent.
• The surrogate and/or the surrogate’s spouse, if applicable, are represented by independent legal counsel, presumably throughout the contractual process and for the duration of the contract.
• The surrogate has a comprehensive health insurance policy as required under the statute, which must take effect before the surrogate begins taking medication or commencing treatment to further embryo transfer.
• The surrogate has a life insurance policy as required under the statute, which must take effect before the surrogate begins taking medication or commencing treatment to further embryo transfer.
• The surrogate’s legal fees, health insurance policy, and life insurance policy are paid for by the intended parent(s). The surrogate may waive this requirement only if the surrogate is not receiving compensation.
• The surrogate meets all other requirements deemed appropriate by the commissioner of health regarding the health of the prospective surrogate, once the commissioner promulgates rules and regulations as required by the statute.

Disputes arising from surrogacy agreements.

No matter how carefully a surrogacy agreement is drafted, disputes may arise. Because New York’s surrogacy law is in its infancy, these novel matters will have to be explored in the coming months and years. In the case of a dispute related to the agreement itself, the parties will be entitled to all remedies other than specific performance. Likely disputes include compensation and payments to donors and surrogates; surrogates’ rights under the SBR; attorneys’ fees; and inheritance rights in cases where an intended parent dies before the child’s birth. Disputes with insurance companies are also likely, especially as insurance carriers begin offering coverage under new types of policies specific to gestational surrogacy. Disputes related to acknowledgments of parentage may also arise.

Whatever the reason for a potential dispute, it is essential to craft an agreement that anticipates and addresses the risks, complications, and sources of conflict in advance. These concerns include:

• Access by the intended parent(s) to the surrogate’s medical information during the pregnancy.
• Prenatal testing and contingency plans in the event of abnormal test results.
• The number of embryos transferred and the possibly of reducing the number of fetuses during pregnancy.
• The relationship and frequency of contact between the intended parent(s) and the surrogate during the pregnancy and after the birth.
• Expectations related to the surrogate’s behavior and habits during pregnancy, including diet and nutrition, exercise, safety precautions, and limitations on travel.
• Potential additional expenses in the event of complications requiring convalescence or other limitations that prevent the surrogate from working.
• Disclosure to non-parties of the surrogacy arrangement.

Careful consideration of these and other potential conflicts can help guard against unanticipated disputes and encourage a harmonious relationship between intended parents and surrogates.

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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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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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