New York Surrogacy

If you’re considering surrogacy in the State of New York, understanding the legalities of modern family building is essential. . Learn everything you need to know about gestational surrogacy in New York.

The New York Child-Parent Security Act, establishes the legal framework for surrogacy agreements in the state of New York. Continue reading to understand rights and responsibilities of all parties (intended parents and surrogates).

Whether your desire is to understand the legal landscape, or are planning a surrogacy journey New York, or just want to educate yourself on surrogacy in New York to make informed decisions on your family building journey in the future, the below information will guide you through the landscape of surrogacy in New York and should fully prepare you as you:

Learn about establishing parent rights in New York
Understand the legalities around surrogate rights and informed consent,
Feel equipped with knowledge to proceed on your journey.

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Gestational Surrogate Requirements in New York

To meet the New York surrogate requirements, a gestational carrier must meet the following requirements at the time the surrogacy contract is executed:

Be at least 21 years of age;
Be a United States citizen or lawful permanent resident;
Be a New York resident for at least six months, if one of the intended parents is not a NYS resident
Have not provided the egg for conception
Has completed a medical evaluation by a licensed health practitioner;
Has given informed consent* after being informed of medical risks
Has been represented by independent legal counsel, along with her spouse, if applicable
Has or will obtain comprehensive medical insurance and life insurance policies that take effect prior to taking medication or beginning any embryo transfers
Including any other criteria deemed appropriate by the Commissioner of Health [FCA §581-402(a)]

The surrogate’s spouse must also provide informed consent unless they have lived apart for three years or have lived apart pursuant to an order, judgment or separation agreement acknowledged in the manner of a deed.

*Scroll down to learn more about informed consent.

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Intended Parent Requirements in New York

Intended parents may be heterosexual or same-sex couples or single individuals, regardless of genetic connection to the embryo who met the following requirements:

At least one intended parent in a surrogacy agreement must be a United States citizen or lawful permanent resident and a New York resident for at least six months.
Intended parents must be represented by independent legal counsel.
An intended parent may be a single adult or, if a couple, may be married or in an intimate relationship.
An intended parent may execute a surrogacy agreement without his or her spouse if they have lived apart for three years or if they have been separated pursuant to an order, judgment or separation agreement acknowledged in the manner of a deed. [FCA §581-402(b)].
If the intended parents are providing compensation, the funds must be placed in escrow and the agreement must also delineate how medical expenses will be covered [FCA §§581-403(f), 581-403(g)].

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New York Child-Parent Security Act

The Child-Parent Security Act (CPSA) legalized gestational surrogacy in New York State. The CPSA went into effect on February 15, 2021. An important aspect of the CPSA is the required licensure of gestational surrogacy organizations, sometimes referred to as matching programs. In addition, the CPSA establishes protections for gestational surrogates and a simple path to establish legal parental rights for parents who rely on assisted reproductive technology (ART) to have children.

The Child-Parent Security Act represents the gold standard nationally as it provides clear guidance about the surrogacy process, benefiting both intended parents and surrogates. New York surrogacy law provides a clear and comprehensive legal framework for surrogacy agreements, prioritizing intended parents, gestational carriers, and children born through surrogacy. As such, legal parentage in New York is determined upon birth and intended parents can obtain a birth certificate from the Vital Records department directly.

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Surrogacy Screening Guidelines for New York

Surrogacy Screening Guidelines

NYS Law requires health care providers who provide care to gestational surrogates to follow the Department of Health’s clinical best practices as set by national standards of professional medical organizations such as the American Society of Reproductive Medicine (ASRM) and the American College of Obstetricians and Gynecologists (ACOG). Learn more about New York surrogacy screening guidelines.

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Surrogate Rights in New York (Bill of Rights)

New York State legislation mandates organizations to adhere to the New York State Gestational Surrogates’ Bill of Rights. Additionally, it is required that gestational surrogates are provided with a comprehensive overview of their rights outlined in the bill. These rights encompass aspects related to their health and well-being, access to independent counsel licensed in New York State, health insurance coverage with reimbursement for associated medical expenses, life insurance, and protections in the event of contract termination. According to New York Department of Health, the surrogate rights are detailed as follows:

Health and welfare decisions

A gestational surrogate has the right to make all health and welfare decisions regarding themself and the pregnancy. This includes:

consent to a cesarean delivery,
consent to a multiple embryo transfer,
use of the services of a health care practitioner of their choosing,
decision to continue or end the pregnancy,
decision to keep or reduce the number of fetuses or embryos they are carrying, and
decisions about other related health and welfare issues.

Independent legal counsel

A gestational surrogate has the right to legal counsel of their choice, paid for by the intended parent(s).

The legal counsel must be licensed to practice law in the state of New York, and should have experience with surrogacy.
The legal counsel represents the surrogate during development and execution of the surrogacy agreement.
The legal counsel represents the surrogate and their interests throughout the surrogacy process.
The legal counsel must not also represent the intended parent(s).

Health insurance and medical costs:

A gestational surrogate has the right to a comprehensive health insurance policy that covers preconception care, prenatal care, major medical treatments, hospitalization and behavioral health care.

The insurance plan will provide coverage for the entire surrogacy period, the entire pregnancy, and for twelve months after childbirth or the end of the pregnancy.
This insurance plan shall cover the cost of psychological counseling to address issues related to the surrogacy.
The insurance plan is paid for by the intended parent(s).
The intended parents will also pay for or reimburse the gestational surrogate for any co-payments, deductibles, or other out-of-pocket expenses associated with the in vitro fertilization and embryo transfer, pregnancy, childbirth, and postnatal care for 12 months after childbirth or after the end of the pregnancy
A gestational surrogate who is not receiving compensation can decide that the intended parent(s) do not have to pay for co-payments, deductibles, or other out-of-pocket expenses of the pregnancy.

Life Insurance:

A gestational surrogate must be provided a life insurance policy that takes effect before they use any medication or begin any treatment for embryo transfer.

The policy must cover a minimum benefit at least equal to $750,000, or the maximum amount that the gestational surrogate qualifies for, if this amount is less than $750,000.
The policy term must cover the duration of the expected pregnancy and the twelve months after the birth of the child, a stillbirth, a miscarriage, or termination of the pregnancy.
The surrogate has the right to choose the beneficiary or beneficiaries of the policy.
The policy must be paid for by the intended parent(s).

Termination of surrogacy agreement:

Pursuant to Section 581-405 of Article 5-C of the Family Court Act, a gestational surrogate has the right to end a surrogacy agreement before becoming pregnant by means of assisted reproduction[1].

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Informed Consent

Informed Consent is an essential element of surrogacy in New York. An informed consent form will be provided to the surrogate and her spouse/partner, if applicable, to ensure they understand their rights, the nature of surrogacy, the risks and benefits of being a surrogate, their right to not continue in the surrogacy program, and provide informed consent to proceed in the surrogacy program. The Informed Consent Form will be signed up on matching by both the intended parent(s) and surrogate (and her partner/spouse, if applicable).

The form includes, at a minimum, the following:

A statement that the surrogate has been informed that their name and address will be kept on file by the surrogacy program;
A statement that the surrogate has been advised of their option to volunteer to participate in the surrogacy registry upon completion of the surrogacy agreement;
HIPAA-compliant authorization for disclosure of the surrogate’s relevant medical history information to prospective intended parent(s) and their physicians, consistent with statutory requirements for the disclosure of medical information.
A statement that the surrogate has the right to terminate the surrogacy agreement prior to becoming pregnant by means of assisted reproduction pursuant to Article 5-C of the Family Court Act;
A statement regarding the surrogacy organization’s screening of prospective surrogates and the criteria assessed therein; and
A copy of the Surrogates’ Bill of Rights, as set forth in Article 5-C of the Family Court Act.

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