The Latest Study on Regulation of Compensated Gestational Surrogacy in New York

The Latest Study on Regulation of Compensated Gestational Surrogacy in New York

The Latest Study on Regulation of Compensated Gestational Surrogacy in New York underscores the need to pass this legislation and shows that it would provide the most comprehensive protections for gestational carriers in the US.compensated gestational surrogacy

This report on the regulation of compensated gestational surrogacy in New York, issued in March 2020 to the New York State Legislature by Weill Cornell Medicine and the Cornell Law School is one of the most comprehensive reports of its kind and leads the reader to now other conclusion but that New York’s pending legislation, The Child Parent Security Act, would be the most protective of gestational carriers, or surrogate mothers, of any piece of legislation in existence in the US.  Surrogacy legislation  can be ethical and comprehensive.

To quote from the article, “The trend among state legislatures in the United States is to permit rather than prohibit compensated gestational surrogacy. Since 2000, fifteen states and the District of Columbia have acted to explicitly permit compensated gestational surrogacy. On the other hand, only four states have taken a prohibitive approach since 2000 and two of those states permit uncompensated gestational surrogacy.”

“In forty-four states there is no prohibition on surrogacy by statute or there is explicit or implicit permission. Even in the six states that have statutes that appear to prohibit surrogacy, courts have granted pre-birth orders to intended parents and have issued other pro-surrogacy decisions. Consequently, surrogacy in varying ways, including by approving pre-birth orders.”

“In sum, the health and medical literature does not weigh in favor of continuing to prohibit gestational surrogacy in New York. There are generally no disparate health outcomes for gestational carriers as compared to non-gestational carriers using assisted reproductive technology (ART) nor are their disparate health impacts on children. Additionally, there are no disparate psychological impacts on gestational carriers as compared to women who have had spontaneously conceived pregnancies. States across the country are moving to legalize and regulate gestational surrogacy in the last decade.”

March 20, 2020 by Cornell Weill Medical Center and Law School 

Click here to read the entire article.

War Of The New York Surrogacy Bills Erupts

New York is lagging behind the rest of the country as one of the few remaining jurisdictions in the United States that does not permit compensated surrogacy.

Things just took a bizarre turn in the New York legislature when it comes to surrogacy. Last week, New York State Senator Liz Kruger (SD-28) introduced S7717. That’s a new bill to legalize compensated surrogacy in New York. Great, right? Well, there’s already a different bill that’s both much further along and also, like, way better than S7717. So what gives?New York surrogacy

As astute readers know, New York is lagging behind the rest of the country as one of the few remaining jurisdictions in the United States that does not permit compensated surrogacy. And while a handful of jurisdictions once also had this legal prohibition, most have reversed course. Fortunately, New York has been looking poised to do the same with the smart, well-drafted Child-Parent Security Act. However, that’s a separate bill — and quite different from S7717.

What’s going on?

Last year, the Child Parent Security Act (CPSA) came very close to passing. But then it didn’t. Instead, it fell victim to the legislative sausage-making process.

After passing the Senate, and having the full and vocal support of Gov. Andrew Cuomo, it was never brought up for a vote on the Assembly floor. So eventually, it died at the end of the 2019 legislative session. It didn’t help that at the last minute, noted feminist icon Gloria Steinem, published an incendiary op-ed against surrogacy.

 

gestational carriersSo incendiary that some people had to do some real soul searching as to whether we were still, in fact, feminists, while Steinem argued that permitting compensated surrogacy was exploitative of women. It was sort of surreal to hear Steinem on the side of having the government tell women what they can and can’t do with their bodies.

However, after all that, this should be the CPSA’s year. Except now comes along S7717, which looks like an attempt to muddy the waters.

The CPSA takes the approach of following the generally accepted standards and best practices concerning surrogacy arrangements, including those recommended by the American Society for Reproductive Medicine (ASRM); S7717, in contrast, takes a very different approach.

To give it some credit, it does seem to provide a clearer path for compensation for “genetic surrogacy” –- where the surrogate is genetically related to the child. However, most surrogacy in the United States is “gestational surrogacy” –- where the surrogate is not genetically related to the child. She is, instead, providing a way to help intended parents, who could not have a genetic child otherwise, bring their child to birth. Here especially, S7717 takes a new and strange direction.

  • Everyone Must Live In New York. S7717 requires all parties to be either a United States citizen or a legal permanent resident and to be residents of New York for the past 12 months. There is an exception if the parties are “immediate” family and there is no compensation. But that’s a very narrow band. Penalizing and disqualifying someone for living across state lines or being a second cousin versus an “immediate” family member is a harsh line to draw. 
  • Random Restrictive Medical Requirements. If that weren’t enough, S7717 requires that a woman wishing to be a surrogate under the proposed law *must* be under 35 years old, and cannot have more than three births. It’s not exactly clear where these numbers came from though, since the ASRM guidelines provide that a woman can be a surrogate up to the age of 45 (ten more years!) and can have five prior births.
  • Impossible(?) Financial Requirements. The bill also requires what would often be impossible requirements. The intended parents would be required to have a life insurance policy in place for the surrogate for a minimum of $750,000, as well as a short-term and long-term disability policy. While maybe obtainable in some cases, and definitely good things to have in place in a perfect world, sometimes it can be very difficult to find such policies. For instance, some disability policies are not readily available to anyone if not provided by an employer, or require at least a year of being in place prior to eligibility for the benefits. So if no policy is available, it’s another no go.
  • Surrogate Can Keep The Child?! OK, the restrictions described above aren’t great. But probably way worse is the bill language providing that the surrogate is permitted to terminate the agreement at *any* time. And that specifically includes any time during the pregnancy. Even though the intended parents would be required to be financially responsible for the child at all times, a surrogate could decide to be a parent to the child.

Consistent with that madness, S7717 provides that hopeful intended parents can only be judicially recognized as the sole legal parents of the child after the surrogate submits a written declaration — no sooner than eight days following the birth of the child — stating that she is voluntarily consenting to disclaim and renounce her parental rights. But until such a waiver is submitted, the surrogate retains decision-making responsibility for the child (but still not financial responsibility). Whoa. That does not sound right.

AboveTheLaw.com by Ellen Trachman, February 19, 2020

Click here to read the entire article.

NYS Lawmakers Reviving Paid Gestational Surrogacy Push

Will Cuomo’s help prove key in opening up option, gestational surrogacy, important to gay couples?

The contested effort to legalize compensated gestational surrogacy in New York State is underway again after the legislative push faltered last year in the face of criticism from a wide range of voices, including out lesbian Assemblymember Deborah Glick of Manhattan.Glick betrayal

Governor Andrew Cuomo, who was among the chief backers of the bill last year, has included gestational surrogacy on his State of the State agenda for 2020 — which he will lay out in a January 8 address — signaling his steadfast intentions to prioritize the legislation this year.

The lawmakers who carried the bill last year, out gay State Senator Brad Hoylman of Manhattan and Assemblymember Amy Paulin of Westchester, are also moving ahead with plans to revive the legislation this year.

New York is one of the few remaining states with an outright ban on paid gestational surrogacy, which entails a prospective parent or parents compensating a person to carry a baby who is not biologically related to the carrier. Hoylman, who led the bill to passage in the Senate last year, has two children through gestational surrogacy with his husband, David Sigal.

Hoylman and other lawmakers have touted the legislation’s bill of rights that they say boasts the strongest protections in the nation for surrogates and requires parents to cover all medical and legal fees for them. The bill would also address the “second parent adoption” process by removing remaining barriers couples could face to the non-biological parent’s rights regarding their child.

Despite clearing the Senate in 2019, the legislation encountered resistance in the Assembly, where Glick blew off her previous commitment to support it and instead was among the critics arguing that women carrying the babies could be exploited and that the expensive surrogacy process is essentially available only to wealthy prospective parents who can fork over tens of thousands of dollars to have children that way.

The legislative effort was ambushed on multiple fronts. Opponents included voices as disparate as longtime feminist leader Gloria Steinem, the Catholic Church, and trans-exclusionary radical feminists (TERFs), a group of transphobes who have emerged primarily from the United Kingdom aggressively opposing transgender rights, surrogacy rights, and sex work decriminalization. The transphobes hijacked a City Hall rally opposing sex work decriminalization last year, holding up a sign that read, “NO to the sex trade, surrogacy, and transgende­rism.”

In the final days of the 2019 legislative session late last spring, Paulin told Gay City News she was still trying to whip votes for the bill in a last-ditch effort that proved unsuccessful. On June 20, after the bill had died for the session, Assembly Speaker Carl Heastie said, “Many members, including a large majority of women in our conference, have raised important concerns that must be properly addressed before we can move forward.” He stressed the importance of prioritizing the “health and welfare” of women and said he looked forward to “continuing this conversation in the coming months.”

How exactly lawmakers plan to address those concerns is not clear this early in the year, but Paulin and Hoylman told Gay City News on January 2 that they are continuing to work with advocates and legislators to bolster the bill. Paulin, noting an example, pointed to the rigorous medication and hormone treatment that the women who are egg donors in the surrogacy process must adhere to. She said she is in touch with experts to navigate the best path forward in addressing those concerns.

GayCityNews.com, by Matt Tracy, January 3, 2020

Click here to read the entire article.

New York Almost Joined The 21st Century On Gestational Surrogacy, No Thanks To Gloria Steinem

New York continues to be one of the few surprising gestational surrogacy holdouts, with an outdated law based on outdated notions and outdated technology.

The New York bill in support of regulated compensated gestational surrogacy — the Child-Parent Security Act (CPSA) — had the vocal support of Governor Andrew Cuomo, passed the State Senate, and likely had the votes in the House. But it never made it to the floor before the legislative session ended last week. What the heck happened?!new york surrogacy

Some Background.

New York is one of the few states in the country that legally prevents a woman from carrying a hopeful parent’s or couple’s embryo to birth, and receiving compensation for her nine months of intense effort and … labor. Other jurisdictions that had previously banned the practice have since changed course in the last few years — including New Jersey, Washington State, and D.C. In the meantime, New York continues to be one of the few surprising holdouts, with an outdated law based on outdated notions and outdated technology.

As previously discussed in my column, while gestational surrogacy is a big part of the New York bill, the CPSA includes other key protections for parents hoping to conceive using assisted reproductive technology. For example, it fixes the state’s legal loophole that allows sperm donors who donated to a single parent to seek legal rights to the resulting child! And vice-versa, it closes the loophole that currently allows single parents to seek child support from a donor. So these were improvements all around.

 

New York’s ban stems from the disastrous Baby M case in the 1980s. That case occurred in next door New Jersey, where a woman agreed to be inseminated and carry the resulting child for another couple. This type of arrangement is generally referred to as “traditional,” or “genetic surrogacy.” In the Baby M Case, the genetic surrogate changed her mind about giving up the baby, and fled the state with child. Both New Jersey and New York quickly over-corrected and outlawed all compensated surrogacy. Since then, genetic surrogacy has largely been abandoned across the U.S., while gestational surrogacy — where the surrogate is not genetically related to the child she carries — has flourished. Note that the CPSA only aims to legalize gestational surrogacy, not genetic surrogacy, the type found in the Baby M Case. Last year, New Jersey (ground zero for Baby M) recognized that the times and medical practices have changed, and reversed its position by passing supportive gestational surrogacy legislation.

So Close! 

The momentum for the bill was building, and supporters believed that the CPSA had a good shot at becoming law this year. So, what pulled the brakes? I spoke with Denise Seidelman, a prominent New York adoption and surrogacy attorney, and part of a coalition in support of the CPSA. Seidelman shared her experience advocating for the bill. “It was one the most profoundly inspiring, and also intensely disappointing experiences. Emotions were running high on both sides of the issue.”

Seidelman explained her view on some of the factors that led to this not being the CPSA’s year. For one, she noted that the author of the original New York surrogacy ban (from 30 years ago), Helene Weinstein, is still a current member of the Assembly, and she is outspoken in her position, perhaps colored by her experiences of a generation ago.

Seidelman felt another factor in this year’s failure was the timing of a letter by Gloria Steinem, famed author and feminist, against the CPSA. Steinem’s letter was disappointing, and really a bit shocking for those familiar with how surrogacy works. Her letter referred to a 1998 NY Task Force report that came out against surrogacy, with no mention of a more recent and more relevant 2017 NY Task Force report in support of gestational surrogacy, with measured regulation. Unfortunately, Steinem spoke not from firsthand knowledge of the recent experiences of women who choose to be gestational carriers for others, but from a perspective that has long since gone by the wayside.

The letter described how the bill would risk the well-being of the marginalized women in the state — those in conditions of poverty. However, as pointed out in the rebuttal letter written by RESOLVE, the national infertility association, of the women who raise their hands to be surrogates, only about 5 percent are determined to be medically qualified, and are able to move forward. And one of the requirements is that they are financially stable. Additionally, the 2017 Task Force report found that the women who are acting as surrogates are not the marginalized of society, but those not reliant on compensation that may be received from acting as a gestational surrogate. Steinem’s letter is an imagination of the Handmaid’s Tale, but ignores the current reality of what surrogacy is, and how it works.

AboveTheLaw.com, June 26, 2019 by Ellen Trachman

Click here to read the entire article.

HOYLMAN ANNOUNCES COMMITTEE PASSAGE OF BILL TO LEGALIZE SURROGACY IN NEW YORK

 
S.17A, the Child-Parent Security Act, would legalize enforceable gestational surrogacy agreements in New York State

Hoylman: Becoming a parent should be a joyous occasion, not an illegal act. We need to legalize and regulate surrogacy contracts sensibly.”

ALBANY – State Senator Brad Hoylman (D, WF-Manhattan), Ranking Member on the Senate Judiciary Committee, announced passage today of his bill (S.17A) to lift the ban on compensated surrogacy through committee. Currently, New York is only one of five states where compensated surrogacy is illegal, along with Louisiana, Michigan, New Jersey, and Washington.gay dads

State Senator Brad Hoylman said: “For decades, New York law has been stuck in the dark ages on surrogacy. While the science on reproductive technology has advanced, our laws haven’t. The infamous ‘Baby M’ case led to a complete ban on surrogacy in New York. But now, thanks to in vitro fertilization, surrogates carry babies who are not genetically related to them, technology that wasn’t available at the time of Baby M. 

“As the proud father of a child born through surrogacy in California (and another on the way!) where it’s legal, I’ve experienced firsthand the need to provide the option of surrogacy to New Yorkers and establish laws to protect all the parties in a surrogacy arrangement, including the gamete donors, surrogates, intended parents and unborn children. Becoming a parent should be a joyous occasion, not an illegal act. We need to legalize and regulate compensated surrogacy contracts sensibly. 

“I thank my colleagues on the committee and look forward to working with them to pass this important piece of legislation through the full Senate.”

Hoylman’s legislation, the Child-Parent Security Act (S.17A), which he carries along with Assemblymember Amy Paulin (D-Westchester), would permit legally enforceable compensated gestational surrogacy agreements, allow individuals to obtain a “Judgement of Parentage” from a court prior to the birth of the child to establish legal parentage, and establish firm legal protections for both parents and surrogates.

May 23, 2017 – by Brad Hoylman

Click here to read the entire release.

Compassionate Surrogacy – Options For Your Family

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Compassionate surrogacy, sometime referred to as altruistic surrogacy, is the process where a woman, the compassionate surrogate, carries a child of the intended parents with the intention of giving that child to the parents once it is born.

A compassionate surrogate does not receive compensation for her services.  It is a special person who can be a compassionate surrogate.  When is compassionate surrogacy the right choice for your family?  The answers depend upon several factors.

 

  1. Compensated surrogacy is currently illegal in 3 states: New York, Michigan and Louisiana. While that doesn’t necessarily mean you can’t use a surrogate in those states, entering a compensated surrogacy contract could incur criminal penalties depending on your state of residence. Compensated surrogacy means that the surrogate mother receives a fee for participating in the surrogacy process.
  1. If you want to go through compassionate surrogacy in New York, the surrogate cannot accept compensation outside of statutorily allowed medical and legal costs. The surrogate in these cases is often known by, and close with, the intended parents. It may be a family member as well. You will need a lawyer to determine what costs are and are not allowed to be paid by you, and also to draft a Memorandum of Understanding between the intended parents and the surrogate mother to outline the process and provide for all possibilities that may occur during the process from insemination to birth, and beyond.
  2. A surrogacy, or ART (Assisted Reproductive Technology) attorney must have extensive experience in these types of agreements and can help you and your partner or spouse learn what to expect, average timelines, required paperwork, and even let you know the average costs as well as what is and isn’t legal for you to pay for during the pregnancy.
  3. A compassionate surrogacy attorney can help you manage the relationship with the surrogate and provide dispute resolution that may be needed throughout the surrogacy process, in most cases through the surrogate mother’s separate attorney.
  4. The most critical aspect of compassionate surrogacy is establishing the parental rights of the non-biological intended parent.       Your attorney can help the non-biological parent petition for second or step parent adoption so that both parents have a legal relationship established to the child as soon as possible. Read this article for more information about the second/step parent adoption process.
  5. It’s extremely important to have a lawyer draft any agreement or Memorandum of Understanding between the intended parents and the surrogate mother. If there is a misstep in the contract, you and your child could potentially go through a lengthy and painful custody battle (not to mention the aforementioned criminal penalties in NY) should the mother change her mind. It would be devastating to lose your child over a technicality in the contract.
  6. The hardest part of the process to really grasp is that the Memorandum of Understanding is technically unenforceable in New York.  It’s purpose is to have the parties go through the process of discussing the elements of the journey and the possible contingencies that may occur.
  7. It is critical that psychological support services are provided for both the surrogate and the intended parents and that both parties thoroughly understand the process before entering into any agreement.

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There is currently legislation in New York State that would legalize compensated surrogacy. The Child Parent Security Act would not only make compensated surrogacy a legal option for NY parents, it would also allow both intended parents to be immediately legally recognized as parents at the birth of the child, thus negating the need for the lengthy process of second or step parent adoption by the non-biological intended parent. The CPSA would further protect the rights of surrogates, making sure they are not legally responsible in any way for a child they never intended to parent. While the LGBT community, as well as opposite-sex couples who may need a surrogate, are hopeful it will pass, the bill has been stuck in committee for many years.

If you’re thinking of expanding your family with the help of a compassionate surrogacy, start the process by speaking with an experienced attorney so you can get a solid idea of what to expect, and even if it’s the right decision for your family. As a leading expert in the Family and Estates division of Albert W. Chianese & Associations, Anthony M. Brown is here to help your family with all of its growing legal needs. Call 212-953-6447 or email anthony@timeforfamilies.com to answer any questions you may have concerning compassionate surrogacy or any legal questions concerning same-sex family planning.

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New York Surrogacy – The State of the State

Many LGBT individuals and couples are turning to surrogacy to have their families. New York surrogacy is complicated and evolving, but there is hope on the horizon.

Surrogacy is defined and the act of a woman, altruistic in nature, of gestating and giving birth to a child with the intention of giving that child to the intended parent or parents. There are two types of surrogacy: traditional and gestational. Traditional surrogacy is when the surrogate mother is also the egg donor and the child is biologically related to her. With a gestational surrogacy, a fertilized egg is implanted into the womb of the surrogate and she is not biologically related to the child. Most surrogates today are gestational surrogates.

Currently in New York State, The Domestic Relations Law, Article 8, Section 123 essentially criminalizes compensated New York surrogacy. The law states that no person may request, accept or facilitate the receipt of compensation for a surrogacy arrangement. The law does, however, allow for “altruistic” surrogacy, or non-compensated surrogacy, and authorizes limited reimbursement payments for medical and legal costs related to the surrogacy. But the law does not stop there. Lawyers who facilitate compensated surrogacy agreements can lose their licenses and be convicted of a felony. Monetary sanctions from $500.00 to $10,000.00 are also possible. This does not mean that gay individuals and couples in New York cannot enter into a compensated surrogacy contract. It means that the surrogate cannot live, or more importantly give birth, in New York State, forcing them to incur extra costs of traveling to other states in order to support their surrogate mother.

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The good news is that a group of advocates and attorneys have created a solution to this problem. It is called the Child Parent Security Act (CPSA), a law that would not only legalize and regulate compensated New York surrogacy, but would also allow for the issuance of parentage orders to secure the parental rights of the non-genetically related parent. Currently, non-genetically related parents must have a second or step parent adoption to protect their families. As of this post, the CPSA is stuck in committee in the New York legislature, held back due to certain legislators’ misunderstanding of surrogacy. Many of these legislators are staunch supporters of the rights of the LGBT community; however, surrogacy for them is a “hot button” issue, as it currently is in Europe.

If you are thinking about surrogacy to have your family, there are a few legal issues you should know about prior to signing any contracts. The most important is that compensated surrogacy is governed by the laws of the state where your surrogate lives, or where she gives birth. It is critical to be aware of these ever changing laws and make sure that the current law is incorporated into your gestational carrier (GC) contract. These contracts will contain such other provisions as: a mandate for medical and psychological testing, details of conception and abstinence for the GC and her partner or spouse, termination of GC’s parental rights, provisions for death or divorce of intended parents (IPs), payment of expenses, compensation, review of GC’s health insurance, breach and remedy procedures, selective reduction provisions to name just a few. These contracts are purposefully dense as their purpose is to cover any and all possible situations that may arise in the relationship IPs will have with their surrogate. It is critical that you have an attorney who is versed in Assisted Reproductive Technology (ART) law to assist you in the drafting and review of your surrogacy contract.

Finally, for those considering New York surrogacy, make sure to read through the Men Having Babies Framework of Ethical Guidelines for Intended Parents, an invaluable document created to assist IPs in navigating the process with dignity and awareness of your surrogate mother’s needs through the process. If you are looking for an attorney in New York who specializes in helping same sex couples have families, call Anthony M. Brown, head of Nontraditional Family and Estates division of Albert W. Chianese & Associations, at 212-953-6447 or email questions to Anthony@timeforfamilies.com.