A Balancing Act

New York State recently passed a landmark law that expands LGBTQ couples’ ability to start a family while protecting surrogates’ rights.

Surrogacy Rights for LGBTQ Couples

Joseph Milizio

June 5, 2023 09:00 AM

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 and 516.437.4385.

Related Articles

Fostering Acceptance

by Cassandra Biron

Those looking to be a foster or adoptive parent for LGBTQ youth must understand which kinds of support are most beneficial to parent and child alike. Happily, resources are now more widely available than ever.  

Resources for Fostering LGBTQ Youth

Announcing the 2022 Best Lawyers: Family Law Publication

by Best Lawyers

Featuring the top legal talent in Family Law and Trusts & Estates.

Announcing Best Lawyers Family Law 2022


New Florida Law Gives Emergency Jurisdiction Over Transgender Minors

by Joseph Milizio

A new state law in Florida is granting the state’s courts to have temporary jurisdiction of transgender minors from other states. Joseph Milizio explains more.

Wooden block with outline of male and female image

Same-Sex Couples and Marriage Visas: Everything You Need To Know

by Elizabeth Hagearty

All marriages are considered equal under U.S. law. Here’s what that means for LGBTQIA+ immigrants.

Pride flag, finger and visa document

Pride Month: Going Beyond Corporate Rainbow Washing

by Gregory Sirico

Pride Month gives corporations an opportunity to showcase their support for inclusivity and acceptance, going beyond just logos and marketing campaigns.

Three animated figures wearing suits with rainbow in backdrop

Is Family Law Mediation the Future of Conflict Resolution?

by Best Lawyers

In recent years, family law mediation has started to emerge as the preferred option over traditional forms of litigation, offering clients an amicable and efficient alternative of conflict resolution.

Silhouettes of family split into multiple sections


Protecting Your Personal Injury Settlement: The Importance of Consulting With a Family Lawyer

by Forum Law and Yegendorf Rashid Injury Lawyers

Victims of personal injury in Ontario may not realize that their case settlements and financial winnings could be at risk in the event of a divorce. A family law lawyer can help.

Teddy bear with bandages laying down with orange background

The Top 7 Things to Know Before Filing for Divorce

by Best Lawyers

Consulting with a qualified divorce attorney can help you understand your rights and obligations when filing for divorce. Here are 7 things you should know.

Two golden wedding bands with a crack down the middle

It’s All Relative

by Paula Birch Billingsley

Relative adoption can be infant adoption too; it happened to us and was quick, easy and inexpensive.

Private Adoption of A Relative’s Child

Crossing the Line

by Joseph Trotti

Divorce can be difficult, complicated and emotionally exhausting. Divorcing across state lines ups the jurisdictional complexity significantly.

Jurisdiction and Divorce Across State Lines

Trouble at Home

by Brittney M. Miller and James J. Vedder

Decisions about custody and parenting time after a separation or divorce are never simple. Family violence of any kind makes the process all the more complex—and the victim isn’t always the beneficiary.

How Domestic Violence Complicates Custody

Inoculation Disputation

by Justin Smulison

Vaccine uptake has become one of the most contentious issues in American life. Divorced parents who disagree about it are creating a welter of new custody cases in family court—and precedent is scarce.

Divorced Parents Disagree on Child Vaccine

All Together With Pride: The Best Lawyers Team Volunteers During Pride Month

by Megan Edmonds

Offering time, muscle power, donations and more, the Best Lawyers team supports local advocacy groups’ events.

The Best Lawyers Team Volunteers During Pride

Porter Wright Founds LGBTQ+ Practice

by Megan Edmonds

At the beginning of Pride month, U.S. law firm Porter Wright announced the addition of an LGBTQ+ practice area group.

Porter Wright Founds LGBTQ+ Business Practice

Morrison & Foerster Attorney Randy Bullard’s LGBTI Advocacy

by Greg Sirico

Randy Bullard, a Best Lawyers® listed attorney practicing at Morrison & Foerster, is an LGBTQI advocate and pioneer for change around the world.

Morrison & Foerster Attorney Randy Bullard's

Foster Garvey Celebrates Inclusion During Pride Month

by Greg Sirico

A law firm is honoring the diversity and inclusivity of all employees with a new policy for preferred names and pronouns.

Foster Garvey Celebrates Pride Month

Trending Articles

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards

by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

The Long, Short, Thick and Thin of It

by Avrohom Gefen

“Appearance discrimination” based on employees’ height and weight is the latest hot-button issue in employment law. Here’s a guide to avoid discrimination.

Woman stands in front of mirror holding suit jacket

Trailblazing Titans of the Industry: Announcing the 4th Edition Best Lawyers: Ones to Watch® in America

by Best Lawyers

Best Lawyers honor and celebrate these talented, innovative newer lawyers who are trailblazing their way to victories in courtrooms across the country.

Connected web above map of the U.S.

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Pearls of Wisdom: Celebrating 30 Editions of Best Lawyers’ Rankings

by Best Lawyers

In celebration of our landmark 30th edition, Best Lawyers’ leadership explains how the world’s original and most trusted legal awards maintain their esteem, integrity and reputation for excellence among the top legal entities and their clients.

Best Lawyers logo for 30th edition release with gold glitter in background

Vanguards of Victory: Best Lawyers: Ones to Watch in Canada 2024

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in Canada™ has been announced, and the lawyers showcased by these awards are rising to the challenge each day as advocates for clients all across the country.

Blue and black background with small squares connected by lines

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Announcing the 2023 The Best Lawyers in Canada Honorees

by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

The Best Lawyers in South Africa™ 2023

by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?


How Long Does a Felony Stay On Your Record in California

by Peter Blair

A felony can remain on your record for life in California. Some felonies qualify for expungement. Learn how to remove a felony conviction from your record in California.

Hand setting bird free out of a guarded fence


Thomson Rogers: Toronto Personal Injury Lawyers

by Thomson Rogers

Since establishment in 1935, Toronto-based firm Thomson Rogers has consistently delivered results for their clients struggling through complex litigation.

Top of a Staircase Featuring Two Large Black Doors with Bookshelves and Chairs on Each Side

Incendiary Behavior

by Lyssa A. Roberts and Rahul Ravipudi

California’s future will see more frequent wildfires caused by faulty equipment. Litigation tied to recent Golden State infernos shows the way forward.

Mountain range with glow of wildfires behind it

The Upcycle Conundrum

by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

The Best Lawyers in Australia™ 2024 Launch

by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset