It is never too soon to consult with an attorney if relying on assisted reproduction may be necessary to conceive your child(ren). One of the benefits of working with the Fertility Law Group at Warshaw Burstein is our connections and relationships with other professionals in the assisted reproduction community. There are many steps in the process that precede preparation of a gestational surrogacy agreement and/or a donation agreement and knowing what lies ahead and who will help you complete those steps can be crucial and comforting right from the start. As your counsel, we will provide you with legal and professional assistance to help you navigate your road to parenthood and support you by guiding you to helpful resources and other members of the multi-disciplinary professional team that will be a part of your becoming a parent.
We do now! The New York Child Parent Security Act (CPSA) became law on February 15, 2021. Through its clear rules and simple procedures, the CPSA will provides much needed security to the legal relationship between Intended Parents and their children conceived using Assisted Reproduction from the moment of birth.
The CPSA affords all of New York’s intended parents and all of New York’s gestational surrogates with the opportunity to enter an enforceable compensated surrogacy arrangement and to obtain a pre-birth Judgment of Parentage recognizing the legal relationship between the intended parents and child at the moment of birth.
New York’s assisted reproduction laws secure legal parentage of children conceived using egg, sperm, and embryo donation arrangements by assuring that a donor is not a parent, where there is proof of donative intent. The CPSA eliminates demeaning and expensive requirements for securing legally enforceable parenthood for same-sex couples as New York law now allows for the partner of a person giving birth to be named as a legal parent of their newborn child immediately after birth whether or not they are married and regardless of their sexual orientation or gender identification. New York law further ends uncertainty for securing legal parenthood for a single female parent who relies on a sperm donor to build a family.
We helped craft the progressive principles underlying the CPSA so we can protect and advise our clients who have children or who plan to have children through third-party reproduction arrangements, including surrogacy. The CPSA aptly reflects the complexity of legal parentage in this era of modern science. The law is truly game-changing legislation that will allow countless individuals in New York to build families with confidence and legal certainty.
Gamete (egg and sperm) and embryo donation agreements are written contracts between a known donor and intended parents that set forth the rights, obligations, intentions and expectations of the parties about the donation. The agreements address legal issues such as relinquishment of parental rights, confidentiality, compensation and expense reimbursements, future contact, disposition of eggs no longer needed for procreation, responsibility for storage fees and mechanisms for sharing medical information. The donation agreement can be used as proof of donative intent, which New York law requires in order to issue a Judgment of Parentage naming the intended parents as the legal parents of a child conceived using donor gametes (sperm or eggs) or embryos. In general, once a donation agreement is signed, the intended parents have decision-making authority over the donated gametes (sperm or eggs) or embryos.
As of February 15, 2021, both compensated and uncompensated gestational surrogacy arrangements are legal and enforceable in New York state. “Gestational” surrogacy refers to an arrangement whereby a woman carries a pregnancy for an Intended Parent or Intended Parents and has no genetic relationship to the child (i.e., does not use her own egg). This is distinct from “traditional” or “genetic” surrogacy where a woman carries a pregnancy for an individual or couple but also has a genetic relationship to the child - these arrangements are prohibited under New York law.
When we speak of “compensated” gestational surrogacy this refers to a negotiated base compensation amount paid to the surrogate by the intended parents over and above the payment/reimbursement of expenses. The base compensation is based on medical risks, physical discomfort, inconvenience and the responsibilities the surrogate is undertaking. It must be reasonable and negotiated in good faith and cannot exceed the duration of the pregnancy and a recuperative period following birth of up to eight weeks. New York law requires that the base compensation and reasonable anticipated additional expenses are placed in escrow with an independent escrow agent prior to the surrogate commencing medication.
Intended parents should also be aware that the required costs of the surrogacy arrangement extend beyond just the base compensation amount and medical expenses. Intended parents are financially responsible for health insurance, life insurance, and disability insurance benefits for the surrogate’s benefit in amounts that meet statutory requirements, and for her legal fees.
The provisions of the CPSA assure that both parents (where applicable), whether or not married and whether or not they contributed genetic material, are legally and financially responsible for the child, even in the event of the separation or divorce of the parents. The new law also allows for enforceable embryo disposition agreements between former spouses or other individuals with joint dispositional control over frozen embryos. In these agreements, one former intended parent transfers legal rights and dispositional control over frozen embryos to the other. The intended parent who transfers legal rights and disposition control of the embryo to the other is not a parent of any child conceived from the embryo for any purposes including support obligations unless the agreement states that he or she consents to be a parent and such consent is not withdrawn.