New York Surrogacy Laws
Overview
Although many states have laws that permit surrogacy, New York state is not one of them. Surrogacy, both gestational and traditional, is a complicated legal endeavor in New York, and while it may be possible to build a family through surrogacy here, it is riskier and more difficult than in other places in the United States.
Surrogacy contracts in New York are considered against public policy and are void and unenforceable. Violation of the compensation restrictions in the statutes subjects the surrogate and Intended Parents to a civil penalty and subjects any other person or entity who facilitates the procedure (ex. attorney, agency, physician) to a civil penalty for a first offense and a felony for a second offense.
The only exception to this is altruistic, or uncompensated, surrogacy. Altruistic surrogacy contracts are not enforceable, but they are not illegal. Any monies paid in an altruistic surrogacy agreement in New York must follow expenses allowed as per adoption laws in New York, which strictly limits compensation. If both parents are genetically related to the child, the compensation limits still apply but a maternity/paternity order can be obtained in lieu of an adoption. Any non-genetic parent involved in a surrogacy in New York must adopt.
Types of Surrogacy Available in New York
Can a parentage order be obtained for the following?
All forms of surrogacy are prohibited in New York state and subject to civil or criminal penalties with the exception of altruistic, or uncompensated, surrogacy. However, altruistic surrogacy contracts are still unenforceable and subject to the provisions of New York adoption code, which limits compensation and requires a waiting period of 45 days after birth before parental rights can be terminated. Additionally, many attorneys and agencies advise against traditional surrogacy due to the increased legal risks involved because a surrogate legally can’t be forced to give up her parental rights.
Parentage
Who can be declared as the parent(s) of a child from a surrogate via a court parentage order?
| Married Heterosexual Couple | Married Same-Sex Couple | Unmarried Heterosexual Couple | Unmarried Same-Sex Couple | Single Female | |
|---|---|---|---|---|---|
| Two Genetic Connections | 💛 | 💛 | |||
| One Genetic Connection | 💚 | ||||
| No Genetic Connections |
– Both Intended Parent(s) can be named on the parentage order
– Only a genetic Intended Parent can be named on the parentage order. A non-genetic Intended Parent will need to establish parentage via a second or stepparent adoption following birth.
Compassionate surrogacy cases are the only situations in which Intended Parent(s) can establish parental rights with a parentage order, and only if both Intended Parents are the genetic parents or the sole intended parent is the genetic mother. Same-sex couples must establish parental rights via adoption.
How are Intended Parent(s) Listed on the Birth Certificate?
Intended Parent(s) may be listed as Father-Mother, Parent-Parent, or Father or Mother.
The surrogate and her husband are reported as the parents on the birth certificate. If the Intended Parent(s) are the genetic parents, then their names will replace the names of the carrier and her spouse once the post-birth order goes through. If they are not, then the names of the Intended Parent(s) cannot be placed on the birth certificate until a post-birth adoption is finalized.
Rights of Egg or Sperm Donor(s)
New York Code Section 73 only refers to sperm donors. It states that “Any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent in writing of the woman and her husband, shall be deemed the legitimate, birth child of the husband and his wife for all purposes.”
Surrogacy Steps in New York
Surrogacy Process in New York
Note: Most agencies will not use carriers from New York because of the strict laws surrounding surrogacy.
Birth Certificate Timeline
Birth certificates may take longer to receive if parentage is established via adoption, as New York requires a 45-day waiting period before the carrier can terminate her parental rights. Amended birth certificates can take as long as 9 months to receive after an adoption.
Because of the strict laws surrounding surrogacy in New York, it is essential that you speak with experienced legal counsel prior to starting any surrogacy process. Legal and medical steps involved in the surrogacy process may differ from case to case. Please speak with your agency and attorneys about how the process might look for you.
Court Processes
Surrogacy Contracts
Both gestational and traditional surrogacy contracts in New York are considered void and unenforceable by the state.
Independent Counsel
Independent counsel is recommended, but not required, for all parties involved in a surrogacy agreement.
Requirements for Surrogates and Intended Parent(s)
Birth Orders
Pre-birth orders may be obtained in altruistic surrogacy cases where both Intended Parents are genetically related to the child. However, the order is not considered a “parentage order” in the typical sense, but rather, along the lines of a maternity/paternity order. Post-birth orders are more common.
Bases of Venue
There is no statute specifically addressing the bases of venue for surrogacy in New York. Typically, the surrogate or Intended Parents’ county of residence is used.
International Issues
Because of the restrictive surrogacy laws in New York, international Intended Parent(s) are advised to consider alternative locations for their surrogacy journey. International Intended Parent(s) will also have additional legal steps to complete before their return home regarding their country’s immigration and citizen laws that impact the child. It’s imperative the international Intended Parent(s) speak with an experienced attorney in their home country about their situation. The law of more than one country will need to be considered if the Intended Parent(s) are citizens or residents of more than one country.
Residency Requirements
Birth Certificates
Passport Timeline
Passports are regulated at the federal level in the United States. To learn more about the process of receiving a US passport, visit Travel.State.gov.
Consulting Attorneys
Kathleen “Casey” DiPaola
Copps DiPaola Silverman, PLLC
126 State Street, 6th Floor
Albany, NY 12207
518-436-4170
kdipaola@thecdslawfirm.com
thecdslawfirm.com
Melissa Brisman
One Paragon Drive, Suite 158
Montvale, NJ 07645
(201) 505-0099
info@reproductivelawyer.com
www.reproductivelawyer.com
Legal Disclaimer
The content contained in this website is provided for informational purposes only. Content contained herein may or may not reflect the most current legal information on the subject; accordingly, this website is not promised to be correct or complete at any given time. Outcomes referenced should not be interpreted as an indication of future outcomes. Love & Kindness Surrogacy explicitly disclaims all liability for actions taken or not taken based on the contents of this website.
This website does not constitute a replacement for legal advice or counsel. Always consult an attorney before beginning the surrogacy process.
Last updated October 2019
