6 things New York lawyers need to know about the new surrogacy law

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You may have heard of the new New York Child Parent Security Act (CPSA). No? Well, let me tell you about it. It was approved by Governor Andrew Cuomo at the last meeting under the budget and officially went into effect yesterday, February 15, 2021. Happy Presidents Day everyone!

While Cuomo has certainly become known for other, less successful moments over the past 12 months, the CPSA, by contrast, is a huge hit. Aside from Gloria Steinem’s strange arguments that the CPSA is a mistake and that the government should * control * women’s decisions about their bodies and pregnancy, what do New York lawyers need to know about the new law?

  1. Compensated surrogacy is now legal. The biggest change in law is the lifting of the 30-year surrogacy ban in New York, which made compensated surrogacy agreements for pregnancies illegal and a criminal offense. Now a couple in New York can work on a New York pregnancy substitute (they would have had to leave the state before) and reimburse them for their time and effort. Friends can now compensate Phoebe for wearing these triplets! Instead of going to jail!
  2. “Traditional” surrogacy is still illegal.To be clear, the CPSA only legalizes the use of compensated pregnancy surrogacy. Here a woman is transferred to her uterus in an embryo that is not genetically related, and a child is born who is not genetically related. In contrast, “traditional” or “genetic” surrogacy is where the surrogate mother delivers half of the sperm and egg combination that will result in a child. This form of surrogacy is still prohibited under New York law if it is compensated.
  3. The Replacement Bill of Rights. Compensated surrogacy during pregnancy is allowed now, but not just free for everyone. The CPSA provides clear and specific protection for those New Yorkers who raise their hands to be replacements. These rights are contained in the “Substitute Bill of Rights” and include the following protective measures for the pregnancy carrier:
  • The right to make medical decisions about your own health and wellbeing.
  • The right to health and life insurance must be paid for by the intended parents.
  • The right to psychological counseling.
  • The right to independent legal counsel in New York and the right to choose such an attorney.
  • The right to withdraw from an agreement before pregnancy without penalty.
  1. Representation of the lawyer is required. When Intended Parents and Pregnancy Carriers jointly enter into a surrogacy contract under the CPSA, each party must have independent legal counsel. Intended parents must pay the pregnancy carrier’s attorney, according to the CPSA. And attorneys must be licensed to practice in New York. So … full time for the assisted reproductive technology attorneys in New York!
  2. Estate planning attorneys are also required. All New York estate planning attorneys should be happy too. You may already be bravely trying to convince the general public that an estate plan is really important and in the best interests of every person, like brushing your teeth, but now there is a law that says it is! The estate planning part, not the toothbrushing part. According to the CPSA, in a surrogacy agreement, Intended Parents are required to prepare estate planning documents that identify the guardian of a child conceived through a surrogacy agreement. This must be completed before conception takes place.
  3. Matching agencies must be licensed (and cannot provide legal representation). It may seem tempting to start a side gig that suits hopeful local parents and surrogate mothers. But maybe wait in New York. The CPSA stipulates that matching entities (agencies) must be licensed by the New York Department of Health. And an attorney cannot represent a party to a surrogacy arrangement, nor own or manage the agency or matching program involved in facilitating the arrangement.

These points, as you can imagine, are just the tip of the iceberg. For more information, check out these informational interviews from my own firm’s New York ART attorney, Rachel Wexler, who spoke to prominent New York legal experts, including many who helped shape the CPSA and campaigned for it to be passed over the past decade.

Denise Seidelman, New York, assistant to the reproductive technology attorney and director of the New York Adoption and Family Education Attorneys (NYAAFF), a key force behind the CPSA, said, “Because New York is one of the last few states to allow compensated surrogacy, Legislators have benefited from knowledge gained across the country in this area. As a result, the detailed requirements of the CPSA ensure that only surrogacy agreements that use best practices are legally enforceable. “

So buckle up the New Yorkers. It’s a whole new world in the Empire State for the better. However, make sure you understand the law before delving into any assisted reproductive technology issue. Many opportunities arise with new laws, including… opportunities to go wrong.

Ellen Trachman is the managing director of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-hosted the podcast I want to put a baby inside you. You can reach them at babys@abovethelaw.com.

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