Family Law

6 Things New York Attorneys Need To Know About The New Surrogacy Law

Make sure you understand the law before you dive into the deep end of assisted reproductive technology issues.

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You may have heard of the new New York Child Parent Security Act (CPSA). No? Well let me tell you about it. It passed last session, as part of Governor Andrew Cuomo’s budget, and officially became effective as of yesterday, February 15, 2021. Happy Presidents’ Day, everyone!

Although Cuomo certainly has become known for other, less successful, moments in the past 12 months, the CPSA, by contrast, is a major success. Aside from Gloria Steinem’s strange arguments that the CPSA is a mistake, and that the government *should* control women’s choices over their bodies and pregnancy, what do New York attorneys need to know about the new law?

  1. Compensated Surrogacy Is Now Legal. The biggest change created by the law is the reversal of New York’s 30-year ban on surrogacy, which prohibited and criminalized compensated gestational surrogacy arrangements. Now, a couple in New York can work with a New York gestational surrogate (previously, they would have had to go out of state) and compensate her for her time and effort. So now Phoebe from Friends can be compensated for carrying those triplets! Instead of going to jail!
  2. “Traditional” Surrogacy Is Still Illegal.To be clear, the CPSA only legalizes the use of compensated gestational surrogacy. This is where a woman undergoes the transfer of an embryo, genetically unrelated to her, to her uterus, and carries to birth a child not genetically related to her. By contrast, “traditional” or “genetic” surrogacy is where the surrogate is the provider of the egg half of the sperm and egg combo that result in a child. That form of surrogacy, if compensated, is still prohibited under New York law.
  3. The Surrogate Bill of Rights. Compensated gestational surrogacy is now permitted, but it isn’t just a free for all. The CPSA provides clear and specific protections for those New Yorkers who raise their hands to be surrogates. These rights are contained within the “Surrogate Bill of Rights,” and include the following protections, among others, for the gestational carrier:
  • The right to make medical decisions concerning her own health and well-being.
  • The right to health and life insurance to be paid for by the intended parents.
  • The right to psychological counseling.
  • The right to independent New York legal counsel and to the right to choose such attorney.
  • The right to walk away from an agreement prior to pregnancy without penalty.
  1. Attorney Representation is Required. When intended parents and gestational carriers enter into a surrogacy contract together under the CPSA, each side is required to have independent legal counsel. Intended parents, per the CPSA, must pay for the gestational carrier’s attorney. And the attorneys must be licensed to practice law in New York. So … full employment for the assisted reproductive technology attorneys of New York!
  2. Estate Planning Attorneys Also Required. All you New York estate planning attorneys should also get excited. You may already be valiantly trying to convince the general public that having an estate plan is really important and in each person’s best interests, like teeth brushing, but now there is a law requiring it! The estate planning part, not the teeth brushing part. Pursuant to the CPSA, intended parents in a surrogacy arrangement are required to put estate planning documents in place, naming the guardian of a child conceived through a surrogacy arrangement. This must be completed before any conception takes place.
  3. Matching Agencies Have To Be Licensed (And Can’t Also Provide Legal Representation). It might seem tempting to start a side gig matching hopeful local intended parents and surrogates. But maybe hold off on that in New York. The CPSA provides that matching entities (agencies) are required to be licensed by the New York Department of Health. And an attorney cannot represent a party to a surrogacy arrangement and also own or manage the agency or matching program participating in facilitating the arrangement.

These points are, as you can imagine, merely the tip of the iceberg. For more information, check out these informational interviews by my own firm’s New York ART attorney, Rachel Wexler, who spoke with noted New York legal experts, including many who were instrumental in drafting the CPSA and advocating for its passage over the past decade.

Denise Seidelman, New York assisted reproductive technology attorney and a Director of the New York Attorneys for Adoption and Family Formation (NYAAFF), a major force behind the CPSA, explained that “because New York is one of the last states to allow compensated surrogacy, the legislature had the benefit of the knowledge gained in this field across the country. As a result, the detailed requirements of the CPSA ensure that only surrogacy arrangements employing best practices will be legally enforceable.”

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So buckle up New Yorkers. It’s a whole new world in the Empire State, for the better. But make sure you understand the law before you dive into the deep end of assisted reproductive technology issues. With new laws brings lots of opportunities, including … opportunities to get it wrong.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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