Surrogacy is a process through which an individual carries and gives birth to a child for another individual or couple (the intended parent/s). There are two types of surrogacy: “traditional” or genetic surrogacy and gestational surrogacy. In a “traditional” or genetic surrogacy, the surrogate becomes pregnant using the surrogate’s egg and either an intended parent’s or a donor’s sperm. In a gestational surrogacy, the surrogate bears no genetic relationship to the child, who is conceived using either an intended parent’s or a donor’s egg and an intended parent’s or donor’s sperm. 

Additionally, surrogacy arrangements can be altruistic or compensated. In an altruistic surrogacy, the surrogate would not receive any compensation for the surrogacy process (but may be reimbursed for medical care). In a compensated surrogacy, a surrogate may receive compensation for the services rendered, in addition to coverage of or reimbursement for medical care and related costs.

A gestational surrogacy agreement is between the intended parent(s) and the surrogate or gestational carrier and the surrogate or gestational carrier’s spouse (if applicable) and outlines the rights and responsibilities of all parties to the agreement. The CPSA is very specific about the requirements that must be met for surrogacy agreement to be enforceable under New York state law. 

Among other requirements, the surrogacy agreement must:

1. Be signed and executed by each party before two non-party witnesses;

2. Be executed before the surrogate has taken any medications or before any embryo transfer (if the surrogate provided informed consent before executing the agreement);

3. Ensure that the surrogate and each intended parent meet certain eligibility requirements;

4. Include an escrow provision and independent escrow agent if the surrogate will receive compensation;

5. Include certain mandatory information, including the name and contact information for the surrogacy program; and

6. Comply with other key statutory terms with respect to both the surrogate (and their spouse, if applicable) and the intended parent(s).

Both the intended parent(s) and the surrogate or gestational carrier (and their spouse if applicable) must be represented by separate legal counsel licensed in New York State and with expertise in surrogacy matters.

The CPSA includes certain protections for gestational surrogates, including the right to make health and welfare decisions (including abortion), the right to independent legal counsel paid for by the intended parent(s), the right to health insurance and reimbursement or coverage of medical costs related to the surrogacy (including postnatal care for one year after childbirth or termination of the pregnancy), the right to a life insurance policy of at least $750,000, and the right to terminate a surrogacy agreement prior to becoming pregnant through ART.  

These rights and protections are outlined in the Gestational Surrogates’ Bill of Rights.

If you aren’t sure where to find a surrogate, you may start with a surrogacy “matching program.” These programs match intended parents with potential surrogates and help coordinate the surrogacy process.

New York has a strict licensing regime for gestational surrogacy organizations and matching programs. Organizations and individuals must be licensed through New York State’s Department of Health in order to operate in the state.

The New York State Department of Health maintains a list of gestational surrogacy organizations that are licensed to provide services in New York.

Surrogacy programs may also be able to provide referrals to health care providers who specialize in surrogacy, including obstetricians/gynecologists, reproductive endocrinologists, and fertility clinics or IVF clinics.

New York has adopted the best practices of the American Society of Reproductive Medicine (ASRM) and the American College of Obstetricians and Gynecologists (ACOG) for screening potential gestational surrogates. You can learn more about New York State’s clinical guidelines for screening of potential gestational surrogates here. 

There are certain basic requirements to act as a surrogate under the CPSA:

• The surrogate must be at least 21 years old; 

• The surrogate must be a United States citizen or lawful permanent resident and, if at least one intended parent is not a resident of NY state for at least six months, has been a resident of NY state for at least six months;

• The surrogate has not provided the egg used to conceive; 

• The surrogate has completed a medical evaluation relating to the anticipated pregnancy, which must include a screening of the surrogate’s medical history (including any known health conditions that might pose a risk to the surrogate or embryo during pregnancy); 

• The surrogate must be informed about the medical risks of surrogacy and provide informed consent; and

• The surrogate and the surrogate’s spouse (if applicable) must be represented throughout the process by independent legal counsel (more on this below).

Compensated genetic surrogacy agreements remain unenforceable and are contrary to the public policy of the state of New York. In New York, you cannot knowingly ask, accept, or pay any compensation in connection with a genetic surrogacy agreement or assist in arranging a genetic surrogacy agreement for a fee, except for: (1) certain payments in connection with the adoption of the child; and (2) reimbursement for the reasonable and actual hospital or medical fees and expenses for artificial insemination or in vitro fertilization incurred by the genetic surrogate in connection with the birth of the child. 

While altruistic genetic surrogacy arrangements may be legal, the surrogate would be the biological or genetic parent of the child and therefore would be considered a legal parent under New York state law. This necessitates additional steps, up to and including the surrogate’s consent to the child’s adoption, to sever the surrogate’s parental rights and establish the legal parenthood of the intended parent(s).

Many intended parents work with a surrogacy agency to screen their eligibility and help them match with a gestational carrier. In New York, surrogacy agencies must be licensed by the state’s Department of Health, which maintains a list of licensed programs here.

Likewise, individuals who are interested in serving as gestational carriers may connect with these agencies to be screened for their eligibility to become a surrogate and to be matched with intended parents

In addition to physical health screenings, all parties involved will need to meet with trained mental health professionals before they can enter into a gestational carrier agreement. 

Intended parents should find counsel to represent them in drafting the gestational surrogacy agreement and updating their estate planning documents (if necessary). 

Gestational carriers (and their spouses, if applicable) have the right to independent legal representation throughout the surrogacy process and the duration of any surrogacy agreement. The intended parents are responsible for covering the gestational carrier’s legal fees, and there must be no conflicts of interest in the surrogate’s representation.

New York State Law requires that a gestational carrier be provided with the Gestational Surrogates’ Bill of Rights. This document outlines the surrogate’s rights regarding health, welfare, independent counsel, life and health insurance, reimbursements for medical expenses, and termination of the contract. 

The parties should work with their attorneys to draft and review the surrogacy agreement. In order for the agreement to be legally binding and enforceable, the agreement must meet the specific requirements of the CPSA.

Among other rights and responsibilities, the agreement should address the following topics:  

1. Compensation: Under the CPSA, intended parents can provide compensation to gestational carriers for the surrogacy. The agreement should detail which expenses they will compensate the surrogate for during the surrogacy process. 

2. Life and health insurance: Surrogates have a right to health insurance that covers the entire surrogacy process, from the start of medication related to the embryo transfer,  during the pregnancy and for one year after the pregnancy ends (whether through birth, stillbirth, or termination of pregnancy). Additionally, intended parents must provide a life insurance policy for the surrogate with a minimum benefit of at least $750,000. 

3. Agree upon lifestyle restrictions: The agreement may set forth various terms regarding the gestational carrier’s lifestyle while pregnant. This may address the use of drugs, nicotine, and alcohol, as well as sexual behavior during the pregnancy. Similarly, it may include any necessary notice regarding the gestational carrier’s marital status or sexual partners during the pregnancy. 

4. Escrow and payment: In accordance with New York’s Child-Parent Security Act, the intended parents may compensate the gestational carrier. The intended parents place funds for both base compensation and additional anticipated expenses in escrow with an independent escrow agent.  

Only after a surrogacy agreement is signed should the parties begin any medical procedures (other than the initial medical clearance). This includes both the transfer of an embryo into the surrogate’s uterus through IVF, and any medication taken prior to embryo transfer. 

Remember: Surrogates have the right to make all health and welfare decisions regarding their pregnancies. This includes the continuation or termination of pregnancy, selective reduction, multiple embryo transfer, method of delivery, and other related health issues. 

The goal of surrogacy is to conceive and carry a child to term for the intended parents. Hopefully, at the end of the surrogacy journey, the surrogate will give birth and the intended parents will complete the necessary documentation to establish their parenthood under New York law. 

The baby is born, and the parties follow any post-birth orders outlined in their agreement. The intended parents will have continuing obligations to the surrogate under the agreement for one year after the termination of pregnancy (whether through birth or otherwise). 

Remember, a surrogate has the absolute right to terminate a surrogacy agreement at any time prior to becoming pregnant through ART!