Parentage Proceedings Under the Child Parent Security Act

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

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

The Child Parent Security Act is poised to impact thousands of New Yorkers seeking to start or grow families through third party reproduction. Set to take effect February 15, 2021, 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. In addition to being neutral with respect to gender and marital-status, parentage under the CPSA 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 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. The following information is helpful understanding the requirements under New York’s surrogacy law to secure legal parentage of children born through third-party reproduction.

An overview of parentage proceedings under the CPSA.

Once the surrogate becomes pregnant, the CPSA sets forth procedures for securing a Judgement of Parentage. Ideally, the parties should file a petition in the 2nd trimester for a prebirth order so that the baby is the legal child of the intended parents at birth. Since intended parents and surrogates may not live close to one another, it is important to select the county where the petition will be filed ahead of time and memorialize decisions related to travel and attendance at the birth in the surrogacy agreement; the petition may be filed in any county where the parent or surrogate resided any time after the surrogacy agreement was executed, or where the child was born or resides.

The surrogate and the intended parents must be named parties to the petition. The parties’ attorneys must certify that the surrogacy agreement meets all the requirements set forth under the applicable provisions of the Family Court Act, as described above, including compliance with as-yet unpromulgated requirements established by the commissioner of health. The petition must also include a statement from all parties that they knowingly and voluntarily entered into the surrogacy agreement and that they are jointly requesting that a judgment of parentage be entered. 

If the court finds that the agreement is substantially in compliance with the statute and that the required statements are true, it must enter a judgment of parentage. The self-executing nature of the petition means that once filed, the court has little discretion to deny a petition if all statutory requirements are met. Since the petition is essentially confirming an existing parental relationship, as opposed to transferring parentage, the court may not require parents to submit to a home study or any other requirement typically associated with adoption proceedings.

The judgment of parentage declares that, upon the birth of the child, the intended parent(s) is/are the only legal parents of the child, and that neither the surrogate, the surrogate’s spouse, nor any donor is a legal parent of the child. The judgment also orders the surrogate and/or the surrogate’s spouse to transfer the child to the intended parents if this has not already occurred, and orders the intended parent(s) to assume responsibility for the maintenance and support of the child immediately upon birth. Upon receipt of the judgment, the local registrar must report the parentage to the appropriate department of health and issue an original birth certificate.

Embryo Disposition and Posthumous Conception.

Embryo disposition agreements between former spouses or partners are permissible under the CPSA. Cryopreserved embryos are treated similarly to marital property and are divided at the time a marriage is dissolved; they may also be divided by written agreement between unmarried partners. Prior to the passage of the CPSA, New York did not provide a path for releasing a former spouse or partner from parental obligations, even if the former spouse or partner did not object to the other’s use of the embryo for conception. With the passage of the CPSA, former spouses or partners with joint dispositional control of cryopreserved embryos may enter into a written agreement to transfer sole dispositional control to the intended parent. The parties must be represented by independent counsel, and spouses may only enter into the agreement after they are divorced. Upon execution of the dispositional agreement, a spouse or partner who transfers legal rights and dispositional control of a cryopreserved embryo is not a parent of any child conceived from that embryo, unless the agreement states that he or she consents to be a parent and such consent is not timely withdrawn prior to transfer of the embryo.

Where a consenting intended parent who provided genetic material dies before the transfer of eggs, sperm, or embryos, the deceased may nevertheless be recognized as the child’s parent for the purpose of granting the child the deceased’s benefits, provided that the record complies with the estates, powers and trusts law. However, even if the deceased signed a record consenting to be a parent by assisted reproduction, he or she will not be recognized as a parent of the resulting child unless the deceased specifically consented to be a parent of the child if assisted reproduction were to occur after death.

___________________________

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.

___________________________

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.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.

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).

___________________________

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.

___________________________

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.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.

Weiss Zarett Welcomes Joshua Sussman, Esq.

Joshua Sussman is pleased to announce that he has joined Weiss Zarett Brofman Sonnenklar & Levy, P.C. Joshua brings over 8 years of commercial litigation and real estate litigation experience. He has handled an array of business disputes in New York and New Jersey including disputes between shareholders or members of closely held companies, bankruptcy, trade secret misappropriation, unfair competition, restrictive covenant litigation, business valuation litigation, and general commercial litigation prosecuting and defending breach of contract claims.  In addition, Josh handles commercial real estate disputes, commercial landlord and tenant litigation, and commercial foreclosures.

Joshua and the Weiss Zarett team believe in a thoughtful, practical, and efficient approach to dispute resolution both within and outside the courtroom. Every situation is unique requiring a thoughtful strategy and solution. When litigation cannot be avoided, Josh and the firm’s litigators will zealously and effectively represent our clients’ interests. Weiss Zarett keeps stakeholders apprised each step of the way and intimately involved in the decision making process. There are no surprises.

Weiss Zarett is a prominent and well-respected Long Island-based Firm known for assisting members of the healthcare industry and general business clients.  In the healthcare field, Weiss Zarett represents physicians and physician groups, other healthcare providers and health-related businesses with a wide array of legal services including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, governmental and commercial payor audits, bankruptcy, and commercial real-estate transactions.  Weiss Zarett brings decades of experience to this complex and ever-changing area of practice. 

Equally experienced outside of the healthcare industry, Weiss Zarett advises and represents businesses and business owners in corporate and commercial matters, business disputes, employment practice, commercial, bankruptcy and commercial real estate and commercial landlord and tenant litigation, creditor’s rights, financing, documenting secured transactions and all phases of commercial real-estate transactions. 

Joshua is excited about his new home with Weiss Zarett and looks forward to assisting you with your legal needs. Please feel free to call upon us for your legal needs. 

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.

Entering Into Surrogacy Agreements Under the Child-Parent Security Act

By Jessica Woodrow, Esq.
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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.

___________________________

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.

___________________________

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@app-60705ed4c1ac183264fb7857.closte.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.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.

Compensated Surrogacy Brings Sweeping Change for New York Families

By Jessica Woodrow, Esq.
Email Jessica

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.

___________________________

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.

___________________________

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.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.