Surrogacy in New York: Not Simple

With the ratings success of the new NBC television sitcom, The New Normal, it might be worth reviewing surrogacy laws in New York to determine whether the process is as simple and quick as the show makes it seem.In short, the show is about Bryan (Andrew Rannells) and David (Justin Bartha), who are a gay California couple hoping to start a family through a surrogate named Goldie (Georgia King). Now, there are two common types of surrogacy: traditional and gestational. Traditional surrogacy involves insemination of the surrogate’s egg with sperm, resulting in the surrogate being the biological mother. Gestational surrogacy involves implantation of an embryo, formed from a donor sperm and a donor egg, into the surrogate, resulting in the surrogate being biologically unrelated to the baby.

New York makes surrogacy difficult because New York’s Domestic Relations Law § 122 states that surrogacy agreements are against public policy. Specifically, the DRL states, “Surrogate parenting contracts are hereby declared contrary to the public policy of this state, and are void and unenforceable.” It also prohibits people from paying or accepting money in relation to the agreement, except for medical fees and hospital expenses. The state can monetarily penalize anyone who pays a “surrogacy fee” or accepts one. This means that if the intended parents and the surrogate mother are from New York, the surrogate does not have to give up the baby despite having signed an agreement. Thus, the intended parents may only work with a surrogate who resides in a state that allows surrogacy and should draft all agreements in the state where the surrogate lives.… <Read More>

Reproductive Outsourcing

An interesting trend is developing in America and across the globe: reproductive outsourcing.  Yes, you read that right.  Parents are paying for overseas surrogates to carry their child to term.  And what happens to be one of the most popular overseas locations for the process?  India.

Surrogacy is one of several assisted reproduction options available to couples who have experienced difficulty producing a child.  Surrogacy involves the implantation of a fertilized egg into the womb of a third party, referred to as the surrogate (the technical term is gestational carrier).  The surrogate carries the baby to term, at which point it is transferred, physically and legally, to the waiting parents.  The process can be very difficult and time consuming.  Because there is not a guarantee that any one egg will produce a viable pregnancy, oftentimes multiple eggs must be fertilized.  With each attempt, the prices rise.  This makes multiple attempts fairly expensive.  Should the process be as success, the issue of the welfare of the surrogate mother can bring additional costs.  If a couple decides to use a surrogacy service, the care of the surrogate mother is usually incorporated into the cost of the service.

Additionally, there are surrogacy laws that must be considered.  For example, in America, there seems to be three categories when it comes to the enforcement of surrogacy contracts between potential surrogates and the party seeking to have a child: either the state enforces them (followed by states such as Virginia, Florida, and Illinois), prohibits them (the path chosen by states such as Washington, D.C.,… <Read More>

Till Alzheimer’s Do Us Part?

Alzheimer’s is an extremely terrifying and unforgiving disease. This disease severely affects a patient’s memory and intellectual abilities. In the later stages of the disease individuals lose the ability to carry on normal conversations, remember their surroundings and loved ones. In America alone it is estimated that 5.4 million people suffer from this catastrophic disease, and it is the sixth leading cause of death in the United States.

Considering the above, what happens when your spouse falls victim to this disease? Tara Parker-Pope explored Alzheimer’s and divorce in her New York Times Blog titled “Love, Divorce and Alzheimer’s,” which can be found here.

When talking about Alzheimer’s and divorce two important questions come to mind:
1. Is it morally correct to divorce someone who has fallen victim to Alzheimer’s?
2. What kind of mental capacity does somebody need to commence/defend a divorce action?

The first question is almost certainly answered subjectively. Some people may find that divorcing a spouse who has Alzheimer’s is immoral; since, upon marriage one vows, “til death do us part.” It could be argued that we should care for our spouse until the end, because we would expect the same if the roles were reversed. The opposition argues that Alzheimer’s is death, in life; therefore, one is morally relieved of the sacred vow. Television Evangelist Pat Robertson created controversy when he advised a caller to divorce his wife who had Alzheimer’s. Robertson maintained, “I know it sounds cruel, but if he’s going to do something, he should divorce her and start all over again, but to make sure she has custodial care, somebody looking after her.”… <Read More>

Post-Baby M. era – surrogacy still beyond reach for many

In 1988, the New Jersey Supreme Court handed down one of the first decisions in the country concerning surrogacy contracts. The In re Baby M. (537 A.2d 1227, 109 N.J. 396) case held the surrogacy contract between Mary Beth Whitehead and William Stern was illegal and unenforceable as against public policy. Whitehead initially entered into a contract to conceive and bear a child (by artificial insemination) with Stern, and then relinquish her maternal rights in order for the child to be adopted by Stern’s wife and raised by the Sterns family. The Court compared the surrogacy contract to the sale of a child, which is prohibited by New Jersey laws regulating adoption. On remand, the lower court awarded Sterns custody and Whitehead visitation rights. In 2009, Superior Court of New Jersey expanded the Baby M. precedent beyond a genetically related surrogate mother (where surrogate provides the egg) and declared gestational surrogacy (where the egg is provided by a donor) contracts to be a violation of public policy (A.G.R. v. D.R.H & S.H).

Some American states ban surrogacy outright, while others rely on case law. Only a few set out clearly who is the parent of a child born of a surrogate mother. Similar to New Jersey, New York laws on surrogacy contracts are rigid – in1992, New York’s legislature declared surrogate parenting contracts void and unenforceable as contrary to public policy and prescribed civil and criminal penalties for entering into surrogacy contract involving any fees. N.Y. Domestic Relations Law §122, 123.… <Read More>

Guardianship 17A vs. 81

In an effort to explore different areas of family law, I registered for a Project Based Learning course at New York Law School titled The Guardianship Project. This course allows students to represent plaintiffs in Surrogate’s Court Article 17A Guardianship proceedings. Article 17A Guardianship allow the plaintiff, usually a close relative, to be appointed guardian over their “developmentally disabled or mentally retarded” family member who is over eighteen years of age. I use that terminology because that is the terminology used in the statutes and petition documents. The class of persons who can petition for Article 17A guardianship is quite narrow.… <Read More>