Compassionate Surrogacy & the Child-Parent Security Act (CPSA)

“New York Legalization of Gestational Surrogacy to start February 2021”

  On April 3, 2020 the Child-Parent Security Act (CPSA) was signed into law by Governor Andrew Cuomo, which means that New York law has been changed to legalize gestational surrogacy. “New York’s surrogacy ban is based in fear not love, and it’s part time we updated our antiquated laws to help LGBTQ couples and people struggling with fertility use commonplace reproductive technology to start families,” Governor Andrew Cuomo said. https://www.governor.ny.gov/news/governor-cuomo-unveils-16th-proposal-2020-state-state-legalizing-gestational-surrogacy

Since 2012, many people, organizations, and coalitions have been campaigning to help reform the parentage laws and gestational surrogacy laws in New York. Prior to the new bill, in the state of New York, paid surrogacy was punishable by a fine and unpaid surrogacy agreements were not legally binding nor enforceable. Under the new law, beginning in February, 2021, New Yorkers will now legally be able to arrange and carry out paid surrogacy contracts.

               There are two forms of surrogacy: gestational surrogacy, where the surrogate is not genetically related to the child; and traditional surrogacy, where the surrogate uses her own egg to conceive a child. The New York bill aimed to legalize gestational surrogacy. Gestational surrogacy is the most common form practiced in the United States, where eggs from either a donor or intended parent are used to create embryos, so there is no biological relationship between the carrier and offspring. (https://www.nytimes.com/2020/04/17/parenting/guides/surrogacy.html)

COMPASSIONATE SURROGACY

Another particular kind of surrogacy is compassionate surrogacy. 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. This kind of surrogacy is where the woman receives no compensation for her time and effort carrying a baby. While a woman who undertakes a compassionate surrogacy does not receive payment, she may be reimbursed for any actual costs she incurs during the pregnancy and delivery such as co-pays, deductibles, charges for prescriptions, etc. and she could be reimbursed for lost wages in the case of bed rest or for the cost of child care should she need it due to the pregnancy. Each case is individual.

               It’s also important to understand that just because a woman and a couple undertake a compassionate surrogacy arrangement and are family or close friends, it does not alleviate the requirement for a full contract between the two parties. In fact, the contract for a compassionate surrogacy and a compensated surrogacy should be identical, with the exception of the section on payment amounts and method.

               Also, intended parents and gestational carriers who undertake a compassionate surrogacy agreement should conform to the usual steps taken when there is payment involved, in order to protect each of the parties. These measures include psychological screening prior to beginning a cycle, review of the surrogacy contract by an attorney who represents the gestational carrier, as well as candid discussion on issues such as the number of embryos to transfer, views on selective reduction and termination, desired contact during the pregnancy and afterward, etc.

               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. (https://www.surrogacybydesign.com/blog/what-is-compassionate-surrogacy)

The Child Parent Security Act

The CPSA is comprehensive, addressing the parentage of all children born through third-party reproduction, with the exception of traditional or genetic surrogacy (where the surrogate uses her own egg). The Child-Parent Security Act changes the New York law by outlining a list of best practices for the American Bar Association as well as the New York Health Department’s Task Force on Life and Law. The Child-Parent Security Act:

?            Ensures that intended parents have a secure legal relationship with their child from the moment of birth when a third-party is required to conceive

?            Legalizes gestational surrogacy that meets the best practices criteria outlined in the law

?            Eliminates the requirement for time-consuming, expensive, and stressful legal procedures to become legal parents

?            Allows single women who need a sperm donor to build a family and secure legal parenthood

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.

Surrogate Bill of Rights

New York’s hesitation on embracing surrogacy was based upon the fact that a current bill did not do enough to protect the health and rights of surrogates and the fear of surrogacy becoming commercialized. Within the Child-Parent Security Act, there is a list of best practices that help to protect gestational surrogates. This “Surrogate Bill of Rights” allows the surrogate to:

·        Make all health and welfare decisions in regards to their pregnancy or themselves

·        Have their own independent legal counsel that is paid for by the intended parent(s)

·        Have a comprehensive health insurance policy for the duration of the pregnancy and for 12 months after birth

·        Have access to psychological counseling to address anything that arises as a result of their participation in the surrogacy arrangement

·        Have the right to a life insurance policy that is valid prior to treatment and for 12 months after the end of the pregnancy

·        Have the right to walk away from an agreement prior to pregnancy without any penalties

(Surrogate’s Bill of rights - https://adoptsurrogatelaw.com/2020/10/12/surrogates-bill-of-rights/ )

The CPSA is truly a game changer, bringing New York into the 21st century by providing New Yorkers with a workable construct that recognizes today’s complexity of parentage and the need to accommodate those complexities while protecting all concerned.

For more information:

-         https://adoptionlawny.com/reproduction-law/local-surrogacy-info/new-york-surrogacy-laws/

-         https://simplesurrogacy.com/blog/child-parent-security-act-doing-our-part/

-         https://www.asrm.org/news-and-publications/news-and-research/press-releases-and-bulletins/state-policy-updates/