Child-Parent Security Act Legalizes Surrogacy in New York State

Takes Effect February 15, 2021

The Child-Parent Security Act which goes into effect in February 2021 legalizes the use of gestational surrogates in New York State.  Surrogacy had been prohibited in the state, forcing male same-sex couples and other couples struggling with fertility who needed surrogacy to go to other states to build their families. The former legislation also did not clearly define who the legal parents are when a child is conceived by assisted reproductive technology via surrogacy. The new law provides legal protections for both surrogates and the intended parents.  Governor Andrew Cuomo stated that New York’s law provides the strongest protection in the nation for both surrogates and parents.

Insurance Rights for Surrogates and Parents in New York State

Surrogates now have the right to comprehensive health insurance which is paid for by the intended parents and covers maternity care benefits and preventive care related to pregnancy.  Surrogates also have the right to life insurance coverage purchased by the parents. Parents can now purchase insurance which covers their financial losses if the surrogate fails to perform under their contract.  They can also purchase donor medical expense insurance.

The “Surrogate Bill of Rights”

The new law clearly defines the surrogate’s rights, which provides protection for both the surrogate and the parents.  The surrogate has the sole right to make all health care and welfare decisions regarding themselves or their pregnancy.  This includes whether to have a caesarian section or multiple embryo transfer, terminate or continue the pregnancy, and to reduce or retain the number of fetuses they are carrying.  It also gives the surrogate the right to walk away from the agreement without penalty before pregnancy.  The surrogate also has the right to psychological counseling at the intended parents’ expense.

Legal Protections for Parents

Another important aspect of the law clarifies who the legal parents are when a child is conceived by assisted reproductive technology.  This includes surrogacy and the use of sperm donors.  It assures that an egg or sperm donor is not a parent, when there is proof of intent to donate.  The law provides for legally binding financial and parental responsibility for the health and welfare of the child, whether or not the parents are married and whether or not they contributed genetic material to the child.  This responsibility holds in the event of the death of one parent or their legal separation.

Implications for NY Prospective Parents

New York parents in need of surrogacy in the past were forced to go to other states for surrogacy and the fertility treatments they needed if they were contributing eggs and/or sperm.  Now surrogacy services will be available in New York state.  Agencies are already advertising for and screening prospective surrogates.  The insurance requirements in the new law are similar to those in other states, so it doesn’t appear they would affect the cost of using a gestational surrogate.  Making surrogacy more convenient for New York state residents helps to make this option more readily available.