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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.

STATE SURROGACY LAW:

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 Idaho, most attorneys and agencies strongly advise against the practice given the increased emotional and legal risks involved.

Gestational surrogacy

YES

Commercial surrogacy

YES

Traditional surrogacy

YES

Altruistic surrogacy

YES

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.

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

VARIES

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

Do courts issue pre-birth orders?

YES

Do courts issue post-birth orders?

YES (in some cases where the intended parents are unmarried)

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

NO

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?

NO

Can you file a motion to waive venue?

N/A

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

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

NO

Birth Certificates

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

YES

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

YES (after an adoption)

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

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

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