Payne Hicks Beach
Payne Hicks Beach

22 May 2020

New York state has recently ended its long held ban on commercial gestational surrogacy - here’s what you need to know

The state of New York is to overturn its ban on paid surrogacy, as part of a package of legislation brought about by the Child-Parent Security Act (“CPSA”) which was passed in April 2020. 

The CPSA is comprehensive, addressing and securing the legal relationship between children and their parents when the children were conceived through third-party reproduction. Commercial gestational surrogacy — where a surrogate mother is paid to carry a child that is not biologically related to her — was until recently legal, or not expressly prohibited, in every state except New York, Louisiana and Michigan. The CPSA means New York will allow residents to enter into paid surrogacy contracts as of Feb. 15, 2021.

The move has been heralded as bringing New York, generally seen as a progressive state, in line with the needs of modern families.  Campaigners have also highlighted the significant protections offered to surrogates by the CPSA, which are said to be the strongest in the nation and one reason for the substantial period of time it has taken for the Act to be brought and passed (a draft bill having been first presented in 2012).

Included in the new law is a Surrogate’s Bills of Rights, which includes the following provisions:

  1. The surrogate must be at least 21 years of age;
  2. The intended parents must pay for legal advice for the surrogate;
  3. The intended parents must pay for the surrogate’s health and life insurance during pregnancy and for a year following the birth of the child (the policy to include psychological counselling);
  4. The surrogate has the right to make all health and welfare decisions regarding themselves and their pregnancy (including whether to consent to multiple embryo transfer, whether they wish to have a caesarean section, their choice of medical practitioner and whether to continue or terminate the pregnancy); and
  5. Both the surrogate and the intended parents can walk away prior to a pregnancy being conceived without restriction or penalty.

Critics have said that this leaves open significant room for uncertainty or confusion, for example in relation to the choice of the most expensive healthcare (do the intended parents have a say?), whether the surrogate is permitted to make negative “health and welfare” choices, such as drinking alcohol or taking drugs and what happens to the pregnancy should a child be found to have severe disabilities.

In terms of benefits for intended parents, the CPSA provides the following benefits:

  1. It assures the legal relationship between a child and the intended parents from the moment of birth;
  2. It provides certainty that the surrogate is healthy and capable, mentally and physically, of carrying a pregnancy to term; and
  3. It assures that an egg or sperm donor is not considered a “parent”, where there is proof that the intention was for the gametes be provided for donative purposes.

Back here in the UK, surrogacy first became legal in 1985 after the passing of the Surrogacy Arrangements Act.  Since 2010, same sex couples have been able to become intended parents and, in early 2019, single individuals were permitted to enter into surrogacy arrangements and apply for parental orders (an order which transfers the rights and obligations of parentage to the intended parent or parents and terminates those of the surrogate).

However, the law remains that surrogacy cannot be advertised or commercialized, meaning that it is forbidden to pay someone to be a surrogate or to advertise surrogacy as a service.  You are permitted to pay a surrogate’s reasonable expenses but you cannot pay them a fee for carrying the pregnancy.  This differs from many countries and now New York state, where you are also permitted to pay your surrogate a “fee” for carrying the child.

In addition, under the current UK law, when the child is born it will be the woman who gives birth, and not the intended parents, who is considered the legal mother, whether or not she is biologically related to the child.  If the gestational mother is married or in a civil partnership then her spouse is the other legal parent.  Legal parenthood can be transferred by parental order but not until after the child is born, and whilst surrogacy agreements can be entered into, they are not enforceable under UK law, thus creating a high level of uncertainty and anxiety for intended parents and surrogates going through this process.

In these circumstances, many intended parents in the UK look abroad to enter into surrogacy arrangements, to countries where both the commercial aspect and the legal protections for both intended parents and surrogates result in there being a far wider pool of potential surrogates and far greater certainty about the ultimate outcome.  New York has now added itself firmly to that list.

Article by Emily Foy. For further information, please contact Emily by email or your usual contact in the Family Department or, alternatively, telephone on 020 7465 4300

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This publication is not intended to provide a comprehensive statement of the law and does not constitute legal advice and should not be considered as such. It is intended to highlight some issues current at the date of its preparation. Specific advice should always be taken in order to take account of individual circumstances and no person reading this article is regarded as a client of this firm in respect of any of its contents.

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