Traditional views of family are evolving to keep pace with technologies and the changing legal and social landscape. Prior to assisted reproductive technologies, it was not necessary to determine who the parents of a baby were, as biology told you that. But the right to procreation has not always been available to everyone.
Having children is a life event that many hope to experience at some point in their lifetime. Unfortunately, many people find that they are unable to conceive without assistance due to certain medical conditions like infertility, or simple impossibility, as in the case of same-sex couples or single parents needing the genetic materials from the opposite sex. For these reasons, and others, many people opt to engage the services of a surrogate mother. A surrogate is a woman who is not genetically connected to the embryo in any way but has agreed to carry the baby for a couple/individual. A surrogate agrees to become pregnant only to help another become a parent, allowing for the possibility for many who never dreamed of having a family to realize that dream.
Previous Surrogacy Laws in New York
Commercial surrogacy is when the intended parent(s) enter into a contract with another woman who is in no way related to the embryo, to compensate her for carrying the baby beyond reimbursement for direct expenses. This ban was in full effect up until February 15, 2021. Before this date, New York did not recognize gestational surrogacy and identified the action as illegal. Surrogate parenting contracts were considered contrary to public policy and unenforceable. Compensation in connection with any surrogate parenting contract, except for payment of reasonable and actual medical fees and expenses for artificial insemination or IVF services, was prohibited; and civil penalties and possible felony charges for second offenses were imposed. The surrogate was presumed to be the parent, which often led to unjust and unintended results for the intended parents.
Domestic Relations Law Section 73, which was passed in 1974 before IVF was discovered, failed to provide protection to intended parents who may have needed egg donation, embryo donation, or sperm donation using IVF. It only addressed the presumption that a child born to a woman by means of artificial insemination was the legitimate birth child of the husband and his wife. This antiquated statute failed to protect unmarried couples, as well as married couples for whom insemination was not performed with a physician, single women, or anyone using IVF. The presumption of parentage only applied to children conceived by artificial insemination with donated sperm to a husband and wife. Intended parents assumed the risk that the donor could assert parental rights (where there is a known donor) and deprive them of the opportunity.
The Child Parent Security Act (CPSA)
The CPSA, effective February 15, 2021, creates legal certainty and stability in family relationships and parentage. Commercial surrogacy in the state of New York is now legal, thanks to the Act, and appears to be marriage neutral and gender neutral. This allows for the use of compensated surrogacy contracts and opens the door for more people to enjoy parenthood. Through this law, same-sex couples, single individuals, unmarried couples, and those with fertility issues will be able to have a child, and parentage will be decided before the child is born. The law also provides protection for the surrogates through the bill of rights included in the negotiated agreement. The process is intricate and meticulously detailed so as to protect all involved.
Speak to a Lawyer if You Are Considering Surrogacy in New York
Everyone should have the opportunity to raise a child of their own if they so choose. Many people, due to barriers including fertility issues or social stigma, were deprived of this opportunity. Changes to New York law via the Child Parent Security Act now allow for compensated surrogacy contracts without penalty. Colwell Law Group and our experienced attorneys want to ensure that you receive the assistance you need to pave your way to parenthood. If you are considering gestational surrogacy, call our office today for a free consultation.