Child Surrogacy Legalized, Finally

In 1992, New York outlawed surrogacy contracts in large part due to the publicity surrounding the high-profile Baby M case in New Jersey where the egg of the surrogate was fertilized by the sperm of a man who was not her husband. After the child was born, the surrogate and her husband had a change of heart and refused to turn over custody of the child to the intended parent.

There are two kinds of child surrogacy arrangements. In a gestational surrogacy, the surrogate carries to term an egg from another woman that was fertilized in vitro by the sperm of a man who was not the surrogate’s husband. The intent is for the surrogate to relinquish the newborn baby to the intended parent(s), regardless of whether the surrogate is to be paid for her services or is acting out of friendship to the intended parents.

In a genetic surrogacy, the surrogate contributes her own egg for the conception. The CPSA only authorizes gestational surrogacy arrangements, if they meet certain requirements, while genetic surrogacies will remain illegal in New York.

In adopting the CPSA, the legislature recognized that New York failed to keep pace with medical advances in assisted reproduction, causing uncertainty about who the legal parents of a child are upon birth (for example, there is a legal presumption that any child born of a married couple is legally their child). The CPSA is intended to provide clear and decisive legal procedures to ensure that children born through third party reproduction have secure and legally recognized parental relationships with their intended parents.

The requirements for a valid surrogacy agreement are quite detailed. Here are a few of the most important ones:

• The surrogate must be at least 21 years of age (even though 18 is generally the age of majority in New York).
• It must be a written agreement signed by all parties before two non-party witnesses.
• The surrogate must complete a medical evaluation and provide her informed consent concerning the possibility of multiple births, risks of medications taken for the surrogacy, risk of pregnancy complications, psychological risks, and impacts on her personal life.
• If the surrogacy agreement provides for payment of compensation to the surrogate, the funds for the compensation and reasonable anticipated additional expenses must be placed in escrow with an independent escrow agent before the surrogate takes any medications or commences any medical procedures.
• The surrogacy agreement must disclose how the intended parent(s) will cover the medical expenses of the surrogate and child (usually through a comprehensive health insurance policy).
• The surrogate and her spouse (if any) must receive a copy of the Surrogate’s Bill of Rights.
• The surrogate has the right to make all health and welfare decisions regarding herself and her pregnancy, including whether to consent to a C-section for delivery. Notably, the surrogate retains the right to abort or continue the pregnancy.
• The intended parent(s) must agree to assume the support of all children born as result of the surrogacy.
• The surrogate and her spouse (if any) must be represented throughout the surrogacy contract by independent legal counsel of their choosing, whose fees must be paid by the intended parents (except in the case of a “compassionate” surrogacy where the surrogacy is not compensated and waives the right to have the intended parents pay for legal representation). The intended parents must also be represented by independent legal counsel.

Most significantly, and notwithstanding the historical prohibition against “selling” babies, the surrogate can now be compensated for the medical risks, physical discomfort, inconvenience and responsibilities the surrogate is undertaking (but not to purchase gametes or embryos). The compensation must be reasonable and negotiated in good faith and payments to the surrogate cannot exceed the duration of the pregnancy and a recuperative period of up to 8 weeks. Compensation to an embryo donor is limited to storage fees, transportation costs and attorneys’ fees.

The CPSA will usher in a new era of third-party reproduction in the State of New York.

Bruce Wood is a member at CCB Law, a boutique law firm focused on providing counsel to physicians and healthcare professionals. He can be reached at 315-477-6292 or bwood@ccblaw.com.