GESTATIONAL SURROGACY AGREEMENTS
Prior to the passage of the Child-Parent Security Act ("CPSA"), compensated surrogacy arrangements were illegal in New York. The CPSA legalized gestational surrogacy arrangements. “Gestational” surrogacy connotes an arrangement in which a woman with no biological relationship to the child carries a pregnancy for “Intended Parent(s)” (a legal term). Compensation for “genetic” or “traditional” surrogacy—where the surrogate donates the egg and is therefore genetically related to the child—remains illegal.
The CPSA establishes defined procedures to enter into a legal gestational surrogacy arrangement and to establish parental rights for Intended Parents who rely on Assisted Reproductive Technology (“ART”). Under the CPSA, the gestational carrier and the Intended Parent(s) must enter into a written surrogacy agreement. The law sets forth explicit criteria and requirements for gestational surrogacy agreement, including:
- Writing Requirement: The agreement must be signed by two witnesses, the Intended Parents, the gestational surrogate, and the spouse of the surrogate (unless the surrogate and her spouse are legally separated or have lived apart for at least three years);
- Timing: The agreement must be signed and executed prior to the surrogate taking any medications or undergoing any medical procedures in connection with the transfer of an embryo;
- Independent Counsel: The Intended Parent and the gestational surrogate and her spouse shall each be represented by independent counsel of her or his own choosing; the surrogate is entitled to legal counsel of her choosing paid for by the Intended Parents;
- Compensation in Escrow: If the surrogate is to be compensated, the base compensation and reasonable additional expenses must be placed in escrow with an independent escrow agent, prior to the surrogate undergoing any medical procedures. Any compensation must be reasonable, must be negotiated between the parties, must not be contingent on the characteristics of any children, and cannot be for the purchase of eggs, sperms, or embryos.
- Medical Expenses: The agreement must set forth provisions for the payment of the surrogate’s and the child’s medical expenses. If comprehensive health care coverage will be used, the agreement must set forth a summary of the insurance policy;
- Life Insurance Policy: The surrogate is entitled to life insurance—paid for by the Intended Parents—with a minimum value of $750,000 (or the maximum amount the surrogate is insurable for) that is effective before the surrogate undergoes any medical procedures and continues for one year after the birth of the child;
- Surrogate’s Rights and Representations: The surrogate must agree to: (i) undergo embryo transfer and attempt to carry and give birth to the child; (ii) surrender custody of all resulting children to the Intended Parents; and (iii) acknowledge of receipt of a copy of the Surrogate's Bill of Rights. The surrogate is entitled to: (i) make all health and welfare decisions regarding themselves and their pregnancy, including the termination of one or all fetuses implanted; (ii) utilize the services of a health care practitioner of the person's choosing; (iii) obtain counseling to address issues resulting from the person's participation in the surrogacy; and (iv) coverage under a disability insurance policy—paid for by the Intended Parents—for which the surrogate may choose the beneficiary.
- Intended Parents’ Rights and Representations: The Intended Parents agree, among other thing, to: (i) accept custody of all resulting children immediately upon birth regardless of number, gender, or mental or physical condition; (ii) assume responsibility for the support of all resulting children immediately upon birth; (iii) agree that rights under the surrogacy agreement are not assignable to others; and (iv) agree to execute a new last will and testament prior to the embryo transfer, which designates a guardian for all resulting children in the event of the Intended Parents' death and directs the executor to perform in accordance with the terms of the surrogacy agreement.
Who Can Act as a Surrogate and/or Intended Parent?
The CPSA sets forth strict guidelines of who may legally act as a gestational surrogate:
- Age: The surrogate must be at least 21 years old; the Department of health recommends that surrogates be between age 21 and 45;
- Nationality and Residency: The surrogate must be either a U.S. Citizen, or a lawful permanent resident; if no Intended Parent has been a residence of New York for at least six months, then the surrogate must have been a residence of New York for at least six months;
- No Biological Connection: The surrogate cannot have donated an egg used to conceive the child;
- Medical Evaluation: The surrogate must undergo a medical evaluation, which shall include a screening of medical history that may affect the surrogate or the embryo;
- Informed Consent: The surrogate must give informed consent to medical practitioners and acknowledge the risks of the pregnancy and surrogacy process.
The New York Department of Health has promulgated additional requirements, including:
- Psychological Testing: It is recommended that surrogates and spouses of surrogates undergo psychological testing prior to entering into a surrogacy agreement;
- Prior Pregnancies: The surrogate should have had at least one uncomplicated delivery, but less than five previous deliveries (of which no more than three deliveries should have been by cesarean section);
- Family Stability: The surrogate should have a stable home environment;
- Disqualifying Factors: The following should result in absolute rejection of a surrogate: (i) an HIV diagnosis; (ii) hepatitis B diagnosis or an untreated hepatitis c infection; (iii) evidence of a substance abuse disorder; and (iv) psychosocial factors, including mental incapacity, mental illness, or evidence of emotional instability. Other considerations that may lead to disqualification of a surrogate include: (i) an STI diagnosis; and (ii) a recent smallpox vacation (within past 4 weeks).