The Child-Parent Security Act legalizes compensated gestational carrier arrangements in New York State and clarifies parentage for intended children from gestational surrogacy and from donor egg, sperm, and embryo.
Gestational carrier pregnancies result from in vitro fertilization (IVF), and the woman carrying the pregnancy has no genetic link to the offspring. The Child-Parent Security Act was signed into law by Governor Andrew Cuomo on April 3, 2020, and takes effect on February 15, 2021.
This new law:
- Provides a simple path to establish legal parental rights for parents who rely on assisted reproductive technology (ART) to have children.
- Expands protections for LGBTQ+ families in New York state.
- Ensures that intended parents who enlist the help of a third-party to conceive their child have a secure legal relationship with their child from the moment of birth.
- Legalizes gestational surrogacy (where the surrogate’s egg is not used and the surrogate has no genetic connection to the child), provided that the arrangement follows best practices in the field that protect the interests of the surrogate, intended parents, and child (see below).
Protections for Surrogates: the “Surrogate Bill of Rights”
The Child-Parent Security Act creates “best practice” protections specifically crafted to protect gestational surrogates. The new law creates a “Surrogate Bill of Rights” that:
- Gives the surrogate the sole right to make all health and welfare decisions regarding themselves or their pregnancy (including, but not limited to, whether to consent to a cesarean section or multiple embryo transfer, utilize the services of a health care practitioner of their choosing, terminate or continue the pregnancy, and/or reduce or retain the number of fetuses or embryos they are carrying).
- Gives the surrogate the right to independent legal counsel, of their own choosing, paid for by the intended parent(s).
- Gives the surrogate the right to have a comprehensive health insurance policy that covers preconception care, prenatal care, major medical treatments, hospitalization and behavioral health care that extend throughout the pregnancy and for 12 months after all paid for by the intended parent(s).
- Gives the surrogate the right to psychological counseling to address any issues arising as a result of their participation in the surrogacy arrangement, to be paid for by the intended parent(s).
- Gives the surrogate the right to a life insurance policy that takes effect prior to any treatment up to the maximum amount they would qualify for or $750,000 whichever is lower, extending for 12 months after the end of the pregnancy, to be paid for by the intended parent(s).
- Gives the surrogate the right to walk away from an agreement prior to pregnancy without penalty.
Protections for Intended Parents
The Child-Parent Security Act provides the following legal protections for intended parents:
- Assures the legal relationship between intended parents and their child(ren), from the moment of birth.
- Creates a simple, no-cost pathway to legal parentage for the partner (whether or not married) of the gestating parent, where both agree they are parents.
- Assures that the person acting as the surrogate for the intended parents is healthy and capable, emotionally and physically, of carrying a pregnancy to term.
- Assures that an egg or sperm donor is not a parent, where there is proof of donative intent.
Protections for Children Born of Assisted Reproduction
The Child-Parent Security Act provides the following legal protections for children born using assisted reproductive technology:
- Provides for clarity as to who the child’s parents are, from the moment of birth.
- Establishes legally-binding financial and parental responsibility for the health and welfare of the child.
- Assures that both parents (where applicable), whether or not married and whether or not they contributed genetic material, are legally and financially responsible for the child, even in the event of the death of one parent or the separation of the parents.
For additional information:
- RESOLVE: https://resolve.org/what-are-my-options/surrogacy/
- ASRM: https://www.asrm.org/topics/topics-index/gestational-carrier/
- ACOG: https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2016/03/family-building-through-gestational-surrogacy
- New York State Health Department: https://health.ny.gov/community/pregnancy/surrogacy/