Gestational Surrogacy Legalized in New York: 2020 State of the State Proposal Signed into Law Last Year Takes Effect

By: Joe Kuhn

As of today New York’s Gestational Surrogacy Law is now in effect and provides a new option for couples unable or struggling to conceive children. Originally proposed as part of the Governor’s 2020 State of the State Agenda, and signed into law as part of the State Budget, the new legislation officially legalizes a surrogacy method that had previously been taboo in New York. Under the new law, LGBTQ+ New Yorkers and those experiencing fertility problems can now arrange to have a surrogate to carry their own biological child via in vitro fertilization. Until today, New York only recognized traditional surrogacy, the process in which a surrogate mother donates her own eggs for insemination, while gestational surrogacy agreements were considered unenforceable and not legally binding.

“For far too long, LGBTQ+ New Yorkers and New Yorkers struggling with fertility were denied the opportunity to start a family because of arbitrary and archaic laws and I couldn’t be prouder of the way New York came together to say we won’t stand for this any longer,” said Governor Andrew Cuomo. “New York is a loving state and were [sic] proud to lead the charge for fairness and equality last year.”

In addition to lifting the previous ban on gestational surrogacy, the law:

•     Establishes legal criteria for gestational surrogacy agreements that provide the strongest protections in the nation for parents and surrogates,     ensuring all parties provide informed consent at every step of the process;
•     Creates a Surrogates’ Bill of Rights, to ensure the unfettered right of     surrogates to make their own healthcare decisions, including whether to terminate or continue a pregnancy, and that surrogates have access to comprehensive health insurance and independent legal counsel of their choosing, all paid for by the intended parents; and
•     Creates a streamlined process for establishing parenthood when one of the individuals is a non-biological parent, a process known as “second parent adoption.”

The legal process known as “Second Parent Adoption” previously presented many barriers to individuals, particularly LGBTQ+ couples, seeking to adopt their partner’s biological child. This new legislation has simplified and streamlined the process by instead requiring a single visit to court to recognize legal parenthood while the child is in utero.

“Today we believe that New York leapfrogged to have the most comprehensive and ethical surrogacy laws ever drafted, with extensive protections to all involved, legal clarity and a streamlined process for parentage right’s” said Ron Poole-Dayan, the Executive Director of Men Having Babies, an advocacy group for same sex parents.

The new law is no doubt a welcome relief for couples who have faced difficulty in creating a family. “My husband and I had our two daughters through surrogacy—but we had to travel 3,000 miles to do it because our home state had banned the practice,” said State Senator Brad Hoylman (D-27).“Thanks to the Child-Parent Security Act, gestational surrogacy is finally legal in New York State, giving LGBTQ couples and people experiencing infertility the opportunity to build a family through surrogacy here at home.” The Department of Health has posted guidance here with surrogates’ bill of rights, fact sheets, and a license portal. Information on regulations can be found here.