Please note: effective Feb. 16, 2021, New York surrogacy laws have been drastically changed to allow for gestational surrogacy in the state! We're working hard to compile all of the important information you need regarding New York surrogacy laws. Stay tuned while we update this page.
New York Surrogacy Laws
Overview
On February 16, 2021, New York legalized 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?
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.
Parentage
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.
Although most courts will grant a pre-birth order for all Intended Parent(s), it is possible court rulings may vary by venue in regards to genetic connections between Intended Parent(s) and their child.
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
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. In some cases, New York courts may require unmarried intended parents to undergo second-parent adoption.
Because of major recent surrogacy law changes 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
Surrogacy laws are recognized and enforced by the state, whether they’re commercial or altruistic.
Independent Counsel
Independent counsel is recommended, but not 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 and independent legal counsel, to have insurance that covers the pregnancy (which can be covered by the intended parents.) Intended parents must retain independent legal counsel.
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
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
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 supportive surrogacy laws in New York, international Intended Parent(s) may find doing surrogacy in New York an efficient process. However, because surrogacy in New York is so newly legal, 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 September 2021
