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>

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>