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. Ultimately, parentage will be established in that state as well. One way around the law is by having the surrogate be a family member or close friend, who does not receive compensation. This is legal in New York.

New York’s law complicates the situation for a gay couple, who may not have family members or close friends willing to be surrogates. A gay couple would have to work with a surrogate mother from a state that allows surrogacy contracts with compensation. Problems arise if the surrogate lives in a state that does not recognize gay partnerships in any capacity—whether marriages or civil unions. Because of such anti-gay laws, the birth certificate would only list the biological father. Consequently, the non-biological father would have to sue for adoption if his state allows second-parent adoption, if not; he may have no legal ties to the child.

Fortunately, some New York courts have recognized parental rights of intended parents in surrogacy situations, regardless of the existence of any surrogacy agreements. In McDonald v. McDonald, a woman gave birth to twins after gestating an embryo created from her husband’s sperm and a donated egg. (608 N.Y.S.2d 477, [App.Div. 1994]). The court still considered the woman, who had no genetic connection to the twins, to be their legal mother. Additionally, in Doe v. New York City Board of Health, the court did not require the intended mother of triplets to provide DNA evidence in order to gain parental rights after the surrogate mother surrendered her parental rights. (2004 N.Y. Slip Op. 24303 [5 Misc.3d 424]). These two cases are examples of the courts finding ways to honor agreements between intended parents and surrogates. Despite these cases, not all cases end so amicably because sometimes the surrogate mother changes her mind and decides to keep the baby.

Although the system is designed to prevent a “baby-selling market,” it results in serious and unnecessary restrictions on parents, whether gay or straight, who are simply attempting to start a family via surrogacy rather than adoption.