New York’s Current Surrogacy Law and Potential Change

If you and your partner have been hoping to have a baby, then the potential new law in New York could be the answer. After all, there are plenty of reasons why a couple might be unable toconceive a child on their own. Some people experience issues in conceiving, while same-sex partners are forced to seek out alternative options to the traditional method.  Adoption is often the answer.

For many, surrogacy can seem like the simplest way to create a family. However, the truth is that this process isn’t nearly as straightforward as it might seem. Not only is paying for surrogacy incredibly expensive, but the legal guidelines currently in place within New York mean that couples could be penalized for entering into a contract with a surrogate.  The article by Sheryl F. Colb in Verdict, Legal Analysis and Commentary from Justia on November 8, 2017 provides a thorough analysis of the topic.  This blog summarizes and in spots supplements the article

Understanding Surrogacy Law in New York

From a medical perspective, there are two types of surrogacy that can be considered by those searching for alternative methods of conception. Traditional surrogates are women who are inseminated with sperm to fertilize their own egg. This means that the resulting child is biologically related to the surrogate parent. On the other hand, “gestational” surrogates are implanted with an embryo that is created in a lab using the egg and sperm of the intended parents. In the case of a gestational surrogacy, the surrogate is not related to the child.

In New York, “surrogacy parenting contracts” are deemed unenforceable by the family and supreme courts – and this law is codified in Article 8 of the Domestic Relations Law.  In simple terms, if you choose to have a baby using a surrogate, and that individual decides to keep the child, then you very well may have no legal rights when it comes to arguing for child custody (except through paternity or in cases of pre-conception agreements to have and raise a child together as I will discuss in my next blog). Additionally, the laws of New York also state that no person can accept or pay money for a surrogacy agreement – beyond prices that are given for hospital expenses. This means that if you’re involved in a surrogacy contract in New York, then you could face penalties – as can anyone who assists with the surrogacy.

Why Is Surrogacy Not Permitted in New York?

As the aforementioned Justia article outlined, there is a great deal of conflict around the decision as to whether surrogacy should, or should not be respected by the laws of any given state. In New York, the decision to void any surrogacy contracts may be linked back to a case known as “Baby M”. In a dispute that took place in New Jersey, between an intended set of parents (the Sterns), and the surrogate, Mary Beth Whitehead, problems emerged after Whitehead agreed to be inseminated with sperm from the Sterns. When Whitehead finally gave birth, she decided that she wanted to keep the baby, and even began to threaten the father.

Unfortunately, when the case arrived in the New York Supreme Court, the court was unable to respect the surrogacy contract, because they found that Whitehead was the biological mother, and Mr Stern was the father. Obviously, this complication draws attention to one of the biggest problems that can happen with a surrogacy agreement. Although two parties can use a contract to determine how a child should be raised after it’s born, there is no piece of paperwork that can stop a woman who biologically carries a child to term from developing feelings for that child.

Many surrogate mothers bond with their children during pregnancy and decide that they don’t want to give the child up after birth. Since it is the responsible of the New York court to act in the best interests of any child, the court often determines that a child should maintain links with it’s biological parents. Additionally courts have struggled to support the idea of a child being “sold” to another couple – regardless of whether that couple happen to be great parents.

Changing Laws around Surrogacy in New York

While some still argue that surrogacy should be illegal in the state of New York, there are many would-be parents that believe that the domestic law rules are now outdated.  As set forth in this linked article in Time by Alexandra Sifferlin, currently, twenty-two states throughout the United States allow surrogacy and enforce contracts that are made between parents and surrogates. There are also four states, including New York, New Jersey, Michigan, and Nebraska that forbid surrogacy contracts form taking place, and can penalize individuals who choose to take part in the surrogacy practice against the regulations of the law. The remaining states throughout the country today have no rulings either way on the matter of surrogacy. This means that some locations dictate that surrogacy isn’t technically illegal, but there are also no rules that will protect would-be parents if something goes wrong, as in the case with Baby M above.

Today, the legislature in New York is considering implementing a new bill that would make “gestational surrogacy” legal. This means that you would have rights to claim custody and visitation for a child if the conceived child is biologically related to yourself and your partner, and not the surrogate mother. The bill is called the “Child-Parent Security Act” and it was established by a New York Senator called Brad Hoylman.

Hoylman believes that parents in need of surrogate help in New York should be able to enter into legal agreements with their surrogate so that they can maintain full rights over the child. The bill, if it went into law, would establish the concept of something called “intended parentage”. This would mean that even if there are questions about how a child was brought into the world, the surrogacy contract would determine which parents should have the right to care for the baby. Of course, in order for the law to change, then it will need to be proven that surrogacy is something that can work for the residents of New York, and maintain the standard of “best interests” when it comes to making decisions regarding children.

To learn more about child custody law and the rights surrounding parentage, contact me, Mr Darren M. Shapiro either via my online contact form, or over the phone at (516) 333-6555.  I offer free initial consultations of up to half an hour.