Many people are surprised to find out that before February 15, 2021, surrogacy was not legally permitted in New York. Surrogacy has just become legal under New York State’s Child-Parent Security Act, which has New York join every other state (except Louisiana and Michigan) in legalizing surrogacy. The Act legalizes and regulates contracts related to gestational surrogacy in New York, and requires that surrogacy contracts contain no less than the following items:
- Compensation: The base compensation and additional expenses for the surrogate must be placed in escrow with an independent agent.
- Custody: The surrogate must agree to the embryo transfer and to give birth to the child. Additionally, both the surrogate and their spouse, if applicable, agree to concede legal custody to the intended parents immediately upon birth of the child.
- Intended Parent Requirements: At least one intended parent must be a US citizen or lawful permanent resident and must have been a New York State resident for at least six months.
- Legal Counsel: Both the surrogate and intended parents must be represented throughout the contractual process by independent legal counsel.
- Medical Expenses: The intended parents must cover the medical expenses of the surrogate and child.
- Surrogate Requirements: The surrogate must be US citizen or lawful permanent resident; at least 21 years of age; have successfully completed a medical evaluation; must not have previously provided the egg used to conceive a child; and must give informed consent.
- Will: A will designating a guardian for the child must be executed.
Additionally, the statute includes the Surrogate’s Bill of Rights that includes a list of the surrogate’s substantive rights. These rights, which cannot be waived, include the right to:
- make all health and welfare decisions regarding the pregnancy
- independent legal counsel, of their own choosing, paid for by the intended parents
- a health insurance policy paid for by the intended parents throughout the duration of the pregnancy and extending one year after the pregnancy
- obtain counseling and disability insurance paid for by the intended parents
- a life insurance policy paid for by the intended parents that takes effect prior to treatment and extends for one year after the pregnancy
- walk away from an agreement prior to pregnancy without penalty
Other subjects which should be addressed in the agreement include:
- Conception: How conception will occur (i.e. whose gametes will be used, are the embryos to be fresh or frozen, how many embryos will be transferred per attempt, and how many attempts will the parties make).
- Death: What occurs if the intended parents die or become seriously disabled during the surrogacy process (how should the gestational carrier proceed)?
- Governing Law: Indicate the specific state whose laws will govern the surrogacy arrangement and if a dispute arises, how will it be handled (i.e. in which court will the action commence or will there be mediation before a court action).
- Parental Rights: Clearly define how the parentage will be addressed (i.e. how will the intended parents be established as the legal parents and how the gestational carrier will be relieved of all rights regarding the child).
- Payment of Expenses: Spell out the methods and types of payments associated with surrogacy.
- Termination of Pregnancy: Parties must agree on the possibility of termination of pregnancy. This is allowed when the pregnancy puts the carrier’s life in danger, but the contract should provide remedies when the carrier aborts (or refuses to abort) contrary to the wishes of the intended parents.
These topics are not an exhaustive list, and before any medical processes can begin, the entire contract must be finalized, even if the parents already have a friendly relationship with their intended surrogate.
Surrogacy agreements clearly involve the most important family decisions one could make. Although surrogacy is inherently a personal decision between loved ones, surrogacy agreements are still complex business contracts that must be given substantial thought. Like any business contract, the terms of the surrogacy agreement must be drafted, reviewed, discussed, and negotiated.
Whether you are considering expanding your family via gestational surrogacy, or are interested in becoming a surrogate, please contact us for guidance.