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Surrogacy can be divided into two categories: (1) traditional surrogacy, which involves a woman carrying a child to which she is genetically related; and (2) gestational surrogacy arrangements, which involve a surrogate or gestational carrier carrying a child to which she is not genetically related.
The surrogacy process typically follows these steps:
- Creation of embryos by the intended parents (sometimes via egg donation, sperm donation, or embryo donation)
- Matching of surrogate and intended parents (often via a surrogacy program, such as New York Surrogacy Center)
- Medical screening of the surrogate
- Psychological screening of the surrogate and intended parents
- Drafting of the surrogacy agreement
- Embryo transfer
- Pre-birth parentage proceeding during the pregnancy
- Birth of the baby with the intended parents listed as the parents on the original birth certificate
Our firm has attorneys licensed in New York, Vermont and New Jersey, and the laws regarding surrogacy vary in each of those states.
New York Surrogacy
New York passed the Child Parent Security Act (“CPSA”) in April 2020 which legalizes compensated gestational surrogacy as of February 2021. Under prior New York law, there were criminal sanctions for participating in surrogacy for compensation. That limited surrogacy in New York to compassionate (uncompensated) surrogacy, generally between family or close friends. The surrogate could only be compensated for the expenses a birth mother in an adoption could be compensated for, which include medical and legal expenses. Under prior law, an adoption had to be completed after the baby was born unless the baby was genetically related to both of the intended parents. In that case, a paternity/maternity proceeding could be used.
Under the CPSA, if the surrogate and intended parents meet all eligibility criteria and their surrogacy agreement contains all of the necessary terms, it will be enforceable under New York law. One of the requirements of an enforceable surrogacy agreement is that both the intended parents and the surrogate are represented by independent legal counsel who is licensed to practice law in New York.
Intended Parents will also be able to obtain a pre-birth order of parentage, which declares them to be the parents of the child and declares that the surrogate and any gamete (i.e. sperm or egg) donors are not the parents of the child. If a pre-birth order of parentage is obtained, the intended parents will be listed as the parents on the baby’s original birth certificate.
Prior to 2018, Vermont had no statute or case law prohibiting compensated surrogacy, so compensated surrogacy was routinely occurring, and intended parents were amending the birth certificates of their babies after birth. In 2018, Vermont passed the Vermont Parentage Act, which formalized the requirements for surrogacy in Vermont and allowed for pre-birth orders of parentage to be obtained by intended parents. With a pre-birth order of parentage, the intended parents are listed on the baby’s original birth certificate.
New Jersey Surrogacy
Prior to 2018, New Jersey refused to enforce surrogacy agreements. In 2018, New Jersey passed the New Jersey Gestational Carrier Agreement bill, which allows for gestational carrier agreements to be enforced if they meet certain requirements. If those requirements are met, a pre-birth order of parentage can be obtained, and the intended parents can be listed on the baby’s original birth certificate. One unique aspect of the New Jersey law is that it does not allow for compensation to surrogates, but rather it allows for the intended parents to pay her reasonable living expenses.