Please note: Effective Feb. 16, 2021, New York surrogacy laws have been drastically changed to allow for compensated gestational surrogacy in the state!


New York Surrogacy Laws


On February 16, 2021, New York legalized compensated gestational surrogacy contracts for intended parents and surrogates living in the state, regardless of gender, sexual orientation, race, or marital status. This was a complete reversal of previous laws, which prevented contracts from being enforceable, and subjected surrogates and intended parents to a civil penalty.

Types of Surrogacy Available in New York

Can a parentage order be obtained for the following?

Commercial surrogacy


Altruistic surrogacy


Traditional surrogacy


Although traditional surrogacy is not prohibited in New York, most attorneys and agencies strongly advise against the practice given the increased emotional and legal risks involved. Traditional surrogacy agreements are not enforceable in New York.


Who can be declared as the parent(s) of a child from a surrogate via a court parentage order?

💚 – 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.

All courts will grant a pre-birth order for all Intended Parent(s). A genetic connection is not necessary, and this won’t vary from court to court. In some cases with only one genetic connection, it is possible to have both Intended Parents listed on the birth certificate through a pre-birth order, whether married/unmarried or heterosexual couple/same-sex couple. This may very depending on the particulars of each case and the judge presiding over the case, since the newly instated laws leave room for minor interpretation.

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 initial birth certificate. If a pre-birth order has been obtained, the Intended Parent’s names will replace the names of the carrier and her spouse shortly after the birth. The original birth certificate with the gestational carrier and her spouse listed will in no way affect the case, since the Intended Parents for all purposes will be legal guardians of the child by law as stated in the pre-birth order. If pre-birth order is not obtained, 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)

Family Court Act section 581-102(d) states – (d) “Donor” means an individual who does not intend to be a parent who produces gametes and provides them to another person, other than the individual’s spouse, for use in assisted reproduction. The term does not include a person who is a parent under part three of this article. Donor also includes an individual who had dispositional control of an embryo or gametes who then transfers dispositional control and releases all present and future parental and inheritance rights and obligations to a resulting child.”

Surrogacy Steps in New York

Surrogacy Process in New York

Select your agency if applicable

Match with a gestational carrier

Complete medical and psychological evaluations

Select attorneys for the intended parents and gestational carrier and complete the gestational carrier agreement

Begin IVF cycle with surrogate

Delivery and birth certificate finalization
New York allows pre-birth orders (referred to as “judgments”)
 to be filed.

Adoption or Post-birth order

Birth Certificate Timeline

Birth certificate


Regardless of biological connection to the child, parents can file a pre-birth order so that their names appear on their baby’s birth certificate in New York.

Because of major recent surrogacy law changes in New York, it is essential that you speak with experienced legal counsel that is licensed in the state of New York 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

Surrogacy laws are recognized and enforced by the state, whether they’re commercial or altruistic.

Independent Counsel

Independent counsel is required for all parties involved in a surrogacy agreement.

Requirements for Surrogates and Intended Parent(s)

New York requires surrogates to be at least 21 years old, to not be the biological mother of the child, to undergo a medical evaluation, to have independent legal counsel, and finally, to have insurance that covers the pregnancy and 12 months after the end of the pregnancy (which will be covered by the Intended Parents). Intended parents must retain independent legal counsel.  By the requirements of the state of New York, all legal counsel involved in the case must be licensed to practice in the state of New York.

Additionally, agencies and fertility clinics have their own requirements based on the American Society for Reproductive Medicine, the American Medical Association, and the American Academy of Adoption and Assisted Reproduction Attorneys

Birth Orders

Do courts issue pre-birth orders?


Do courts issue post-birth orders?


Are hearings required to obtain either pre- or post-birth orders?

Yes, most cases require a hearing, whether virtually or in person, for pre-birth and post-birth orders to be obtained in New York.

All documents are filed electronically, which streamlines the court process for all parties and removes the need for court appearances in most cases. 

Bases of Venue

What are the bases of venue?

County of residence of the surrogate or intended parent

Do rulings vary by venue?


Can you file a motion to waive 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

International Intended Parents should not consider working with a gestational carrier in New York because the surrogacy laws in New York require that at least one of the Intended Parents be of U.S. citizenship. A licensed New York surrogacy law attorney will not take on a case where the Intended Parents are not U.S. citizens, so it is advised that International Intended Parents look for a gestational carrier outside of the state of New York.

Residency Requirements

Does the state impose residency requirements on either the surrogate or Intended Parent(s):

Yes, the Gestational Carrier or the Intended Parent(s) must be residents for a surrogacy agreement to be enforceable in the state of New York. Additionally, at least one of the Intended Parent(s) must have citizenship in the United States.

Birth Certificates

Can an international same-sex male couple receive an initial birth certificate naming the biological father and Gestational Carrier?


Yes, if the biological father has U.S. citizenship, then it is possible to obtain the birth certificate naming the biological father and gestational carrier. New York requires that at least one of the Intended Parents have U.S. citizenship.

Can they obtain a birth certificate naming only the Intended Parent(s) with no mention of the Gestational Carrier?


Yes, if a pre-birth order is obtained and one of the Intended Parents is a U.S. citizen, that parent can be named on the birth certificate without the gestational carrier. The Intended Parent that does not have citizenship in the United States would need to apply for adoption in the Intended Parent’s home country.

Passport Timeline

6-8 weeks after submitting birth certificate.

Passports can be expedited for a 2-3 week delivery with an extra fee. Intended Parent(s) can also visit a regional passport agency to receive one within 8 business days.

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

Laurie B. Goldheim
Academy of Adoption and Assisted Reproduction Attorneys
P.O. Box 142, Briarcliff Manor, New York, 10510

Consulted with Love & Kindness 2023

Melissa Brisman
One Paragon Drive, Suite 158 
Montvale, NJ 07645  
(201) 505-0099

Kathleen “Casey” DiPaola
Copps DiPaola Silverman, PLLC 
126 State Street, 6th Floor 
Albany, NY 12207 

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 March 2023