New York Surrogacy Laws:Start spreading the news...effective February 15, 2021, New York has officially legalized commercial gestational surrogacy via the Child Parent Security Act (CPSA). "Gestational surrogacy" is where the surrogate has no genetic connection to the child. The change in the laws do not pertain to "traditional surrogacy" also referred to as “genetic surrogacy”, which is where the surrogate's egg was used for conception. Prior to the change in laws, altruistic surrogacy was permissible where the surrogate could only be reimbursed her out of pocket expenses relating to the surrogacy, however, the surrogate could not receive any other form of payments for her participating in a surrogacy matter otherwise the agreement would be deemed void and unenforceable with other dangerous legal repercussions. This limited New York intended parent(s)' ability to work with surrogates located in New York.The recent changes to the CPSA established a variety of rules and guidelines for surrogacy matters in New York such as creating a Surrogates’ Bill of Rights (a copy of which must be provided to the gestational surrogate), establishing legal protections for the intended parents, setting criteria required in the parties surrogacy agreement, and revising New York laws to eliminate previous barriers involved in the second parent adoption process.The CPSA requires that in order to utilize New York surrogacy laws, the intended parent(s) must reside in New York for at least 6 months prior to engaging in the surrogacy agreement. Any type of intended parent seeking to pursue surrogacy can legally work with a surrogate in New York, therefore the intended parent(s) can be married, unmarried, single, or LGBTQ singles and couples. The intended parent(s) can also proceed with an embryo created from their own genetic material, or donor egg, donor sperm, or with no genetic connection at all using donated embryo(s).The CPSA sets out very specific requirements of what must be included in the surrogacy contract between the parties in order for the agreement to be valid and enforceable. For example, per the new law, the gestational surrogate has the right to the following protections to be paid for by the intended parents: (i) comprehensive health insurance for her medical care relating to the pregnancy through the entire pregnancy and 12 months after the pregnancy ends, (ii) a disability policy, (iii) a life insurance policy with certain coverage requirements, (iv) comprehensive health insurance that covers mental health counseling, and (v) compensation for legal fees. The surrogate also has other rights which must be set out in the surrogacy contract such as the right to select her health care professionals, the right to terminate or continue a pregnancy, and the right to receive compensation which must be held in an independent escrow account subject to the jurisdiction of New York courts, just to name a few of the other protections set out in the CPSA.To ensure that the parties fully understand their rights and obligations, it is required by law that the intended parent(s) and the surrogate (and her spouse, if applicable), be separately represented by their own New York licensed attorney for the direction of the contract and its execution whereby the intended parent(s) will pay for both lawyers. It has always been a best practice established by the American Society for Reproductive Medicine for intended parent(s) and surrogates to have separate legal representation however the New York law codifies this best practice in the statute.The count where parentage proceeding is filed requires some connection to the matter, so the parentage proceedings may be filed in the County where the intended parent(s) live, the county where the surrogate lives, or where the child is ultimately born. There are additional legal requirements on notice requirements for the entered parentage court order which includes, but is not limited to, submitting the parentage court order to the hospital where the child is born, and the New York State Health Department where the birth certificate will be amended to reflect the information on the parentage order (i.e. listing the intended parent(s) as the legal parents(s) of the child(ren)).In addition to the laws regarding surrogacy revised in the CPSA, New York is the first state to license surrogacy programs (or matching programs) by establishing certain licensing requirements through the New York Department of Health.New York Egg, Sperm, Embryo Donation Laws: The laws in New York relating to egg, sperm, and embryo donation remains the same and is governed in part by Section 581-302 of the CPSA. For known donations, a contract between the intended parent(s) and donor is critical to set out the various terms of the donation, including but not limited to the donor agreeing that prior to conception, that the donor has no parental or proprietary interest in the genetic material being donating.When to Involve a New York Reproductive Lawyer:It is certainly helpful for any potential intended parent(s) or surrogate to contact an experienced reproductive attorney to learn about the legal risks and process before embarking upon any surrogacy matter. Each state has different laws regarding surrogacy and with the new changes to the New York surrogacy laws, you will want to make sure that you can legally proceed under New York or different surrogacy laws.Intended parent(s) can locate a potential surrogate either through self-matching efforts by knowing a potential surrogate (family, friend, co-worker, etc.), or by various self-matching social media platforms or by word-of-mouth. The more common way intended parent(s) are matched with qualified surrogates is through a surrogacy-matching agency. It is important that while the intended parent(s) look for a potential surrogate that they also have or are working towards creating the embryo(s) for the medical process which may include utilizing the intended parents’ genetic material or procuring a donor egg, sperm, or even donated embryos.Most reproductive lawyers are officially retained and start preparing the surrogacy contract once the intended parent(s)’ chosen surrogate is medically approved by the intended parent(s) reproductive doctor and psychologically approved by a mental health professional who has experience with third party assisted reproduction. The intended parent(s)’ reproductive doctor will analyze the surrogate’s overall health, prior pregnancies, and must follow certain FDA requirement to ensure she is fit to act as a surrogate for the intended parents. Both the medical and psychological approval will be paid for by the intended parent(s), including any travel required for the surrogate to travel for said screenings. For any surrogacy matter, and as required by New York law for New York related matters, the intended parent(s) will be represented by their own attorney to draft the surrogacy contract, and the intended parents will pay for a separate attorney to represent the surrogate for her review of the surrogacy agreement.Watch Marla Neufeld discuss the exciting news of the legalization of commercial surrogacy in New York.