Surrogacy can be divided into two categories: (1) traditional surrogacy, which involves a surrogate carrying a child to which she is genetically related; and (2) gestational carrier arrangements, which involve a carrier carrying a child to which she is not genetically related. Our firm has attorneys licensed in New York and Vermont and the laws are very different in those two states. The laws that apply are the laws of the state where the gestational carrier resides.
New York has criminal sanctions for participating in either type of surrogacy for compensation. That limits surrogacy in New York to compassionate (uncompensated) surrogacy, generally between family or close friends. The gestational carrier can only be compensated for the expenses a birth mother in an adoption could be compensated for, which include medical and legal expenses.
This restrictive law in New York was enacted in response to the Mary Beth Whitehead case of the 1980s that involved a custody battle between a traditional surrogate and the intended/biological father and intended mother. Science has come a long way since then and traditional surrogacy is generally frowned upon within this field. Additionally, in depth medical, mental health, criminal, and child abuse screenings of gestational carriers and intended parents are routinely undertaken before matching. However, New York has yet to catch up. The Child-Parent Security Act, which will address all areas of assisted reproductive technology, has been pending before the New York legislature for several years.
It is unclear what effect a gestational carrier agreement would have in a custody battle between a gestational carrier and intended parents in New York. However, it is crucial to have such an agreement in place to demonstrate the parties’ intention at the time the agreement was entered into.
After a baby is born in New York pursuant to traditional surrogacy or a gestational carrier arrangement, an adoption must be completed unless the baby is genetically related to both of the intended parents. In that case, a paternity/maternity proceeding can be maintained in Supreme Court in lieu of an adoption.
Vermont does not have any statutory or case law prohibiting surrogacy and, as a result, surrogacy for compensation occurs regularly in Vermont and is approved of by the Courts and the Vermont Department of Health.
The process in Vermont involves the following steps:
- Intended parents being matched (often by an agency)
- Medical and psychological clearances
- Negotiation and execution of a gestational carrier agreement
- Amendment of the birth certificate after the birth of the child via a simple court proceeding and an administrative process with the Department of Health