New York surrogacy laws & gestational process guidelines

Is Gestational Surrogacy Legal in New York?

Yes. The Child-Parent Security Act of 2020, which became effective February 15, 2021 legalized compensated gestational surrogacy.   

Is Traditional Surrogacy Legal in New York?

Traditional surrogacy is only legal in altruistic cases where the surrogate is not compensated.  Furthermore, under New York law, because the traditional surrogate would be the genetic mother of the child, she is considered the child’s legal mother and must consent to the child’s adoption by an intended parent who is not genetically related to the child. 

Compensated traditional surrogacy is still banned in NY and parties entering into such agreements are subject to both criminal and civil penalties.    

Is Compensated Surrogacy Legal in New York?

Yes. Under the new Child-Parent Security Act of 2020, compensated surrogacy is now legal in New York.

Creating a New York Surrogacy Contract

Surrogacy contracts are legal and enforceable in New York as long as the gestational arrangement meets a certain set of requirements (listed below). Intended parents and their surrogate must be represented by separate surrogate attorneys to ensure that both parties’ rights and interests are protected. Furthermore, the surrogacy contract must be executed prior to embryo transfer and, if a surrogate is to receive compensation, that compensation must be funded in an escrow account prior to signing the agreement.

Surrogacy contracts in New York cannot limit a gestational carrier’s decision to terminate or continue a gestational pregnancy; she retains the right to make all medical and healthcare decisions about her body during the process.

In order to be a surrogate in New York, a woman must:

• Be at least 21 years old
• Not be the biological mother of the child
• Complete a medical evaluation
• Undergo independent legal counsel
• Have insurance that covers the pregnancy (it may be purchased by the intended parents)

Intended parents in New York must:

• Undergo independent legal counsel
• Both be parties to the agreement (if in a couple relationship)

If these requirements are met, the surrogate attorneys will negotiate an agreement that addresses at least the following:

• The rights and responsibilities of each party
• Any potential risks and liabilities, and the steps to take should they occur
• Surrogate compensation and other financial information, like surrogacy insurance
• Agreements on sensitive issues like selective reduction and termination
• Contact expectations
• And more

Once the contract is signed by parties and executed, the medical process of surrogacy can begin. To read the full description of standards, click here.

Determining Legal Parentage in New York

The Child-Parent Security Act allows for pre-birth parentage orders but these orders will not be effective until birth and can only be issued if the intended parent or surrogate has been a resident of New York for at least six months . The Act requires that a copy of the parentage judgement be released to the Department of Health upon the birth of the child to ensure an accurate birth certificate, listing the intended parents as the parents of the child.