A Balancing Act

This article originally appeared in the Best Lawyers Family Law 2022^® publication on 12/20/2021.

The LGBTQ community has achieved a number of milestones in recent years, perhaps most significantly the legal ability to marry and start a family in the traditional sense of the word. Although New York State has been at the forefront of these changes, it has long lagged in one area: individuals and couples who wish to start a family through surrogacy.

In 1992, the Empire State outlawed surrogacy contracts. This most likely arose from a now-famous New Jersey case from 1988, “the Matter of Baby M,” in which a surrogate carried an embryo fertilized by her own egg and the sperm of the intended father. After the child was born, the surrogate and her husband refused to consent to the contractual adoption and took the infant back to Florida, where they lived.

The New Jersey court declared the surrogacy contract void, saying it was a contract for the sale of a child, or at least the sale of a mother’s right to her child. An appellate court affirmed the trial court’s decision but ruled that the intended father, as a biological parent, was entitled to custody because it would be in the best interests of the child. It ruled further that the surrogate was entitled to visitation, and her parental rights were not terminated.

Although the 1992 New York law provided for a civil penalty not exceeding $500, the harshest consequences were reserved for anyone who induced, arranged or assisted in the formation of a surrogacy agreement for compensation. Such parties faced a civil penalty of up to $10,000 and forfeiture of any payments received. A second violation was a felony.

The law effectively prohibited any attorney in New York from participating in a surrogacy arrangement (much to the chagrin of our firm, which has long supported LGBTQ rights). It also often forced intended parents to make surrogacy arrangements in other states, requiring travel and distance between the surrogate and the intended parent or parents.

This was especially daunting for prospective LGBTQ parents, as it added the challenge of finding a gay-friendly surrogate and state.

It took 30 years, but in 2021 the law finally changed.

The new law, known as the Child-Parent Security Act, established a statutory framework for various forms of assisted reproduction, with a focus on providing legal parentage without the necessity of adoption proceedings, without the danger of a lawsuit brought by a surrogate or donor and without regard to the gender or marital status of the intended parent or parents.

At the same time, it includes various provisions that protect the rights of surrogates, the culmination of a long effort by the State Assembly to mitigate the concerns that led to the ban on surrogacy contracts in New York. Notably, the act legalizes only gestational surrogacy, which means a surrogate may not contribute her own egg and must therefore not be biologically related to the child. A paid surrogate who is also an egg donor will void a contract of surrogacy, rendering it unenforceable.

The law also highly regulates other aspects of surrogacy. The surrogate must be at least 21 years old and a U.S. citizen or permanent resident. The formalities of the surrogacy must be specified in the agreement, including the rights and obligations of the surrogate and intended parent(s), and provisions requiring the intended parent(s) to provide disability insurance, life insurance and evidence of child-support obligations.

A portion of the act known as the Surrogate’s Bill of Rights contains some of the most detailed provisions to protect surrogates. It provides that any agreement attempting to waive or limit a surrogate’s rights will be void as against public policy. The surrogate has the right to make all health and welfare decisions regarding herself and the pregnancy; the right to independent legal counsel of her choosing, to be paid for by the intended parent(s); to health-insurance coverage and medical costs paid for by the intended parent(s), including behavioral health care and psychological counseling; and a right to a minimum of $750,000 in life insurance. The surrogate also has the right to terminate the surrogacy agreement prior to becoming pregnant.

To address concerns about “baby selling,” the act contains provisions concerning reimbursement and compensation of surrogates. It provides that compensation may be paid to surrogates based on medical risk, physical discomfort, inconvenience and the responsibilities the surrogate is undertaking, but not to purchase embryos or to facilitate the release of a parental interest in the child. The compensation “must be reasonable and negotiated between the parties,” and payments cannot exceed the duration of the pregnancy plus a postpartum period of up to eight weeks.

Much of the act, as detailed above, is devoted to safeguarding the rights of surrogates. That said, though, it’s a great boon for intended parent(s). Upon the birth of a child conceived by assisted reproduction under a surrogacy agreement, the intended parent(s) will, by law, be the parent(s) of the child, and neither the surrogate nor the surrogate’s spouse is recognized as a parent.

For New Yorkers who have been eager to start a family but were faced with biological, geographical or legal barriers, this act clears away those hindrances, expanding the possibilities for the formation of legally recognized families.

Joseph Milizio is the managing partner of Vishnick McGovern Milizio LLP. He leads the firm’s Business and Transactional Law, Real Estate, LGBTQ Representation, and Surrogacy, Adoption and Assisted Reproduction practices, and is a key member of the Matrimonial & Family Law practice. He can be reached at jmilizio@vmmlegal.com and 516.437.4385.