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?
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
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.
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.
Surrogacy laws are recognized and enforced by the state, whether they’re commercial or altruistic.
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.
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 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.
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.
Laurie B. Goldheim
Academy of Adoption and Assisted Reproduction Attorneys
P.O. Box 142, Briarcliff Manor, New York, 10510
Consulted with Love & Kindness 2023
One Paragon Drive, Suite 158
Montvale, NJ 07645
Kathleen “Casey” DiPaola
Copps DiPaola Silverman, PLLC
126 State Street, 6th Floor
Albany, NY 12207
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