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Gestational Surrogacy is Now Legal in New York, but it’s Not a Simple Matter


On April 2, 2020, the New York State Legislature passed the Child Parent Security Act (CPSA). This act was a significant change legalizing compensated gestational surrogacy. Prior to this change, New York was one of only four states where compensated gestational surrogacy was illegal. Prior to this change, any surrogacy parenting agreements were deemed void and unenforceable. Any agreement that involved compensation opened the parties and attorneys up to civil or criminal penalties.

What is Gestational Surrogacy?

Gestational surrogacy, as defined by is when “the child is not biologically related to the surrogate mother, who is often referred to as a gestational carrier. Instead, the embryo is created via in vitro fertilization (IVF), using the eggs and sperm of the intended parents or donors, and is then transferred to the surrogate.”

Many people have benefited from gestational surrogacy. It is most often mentioned as being a common way for same sex couples to have children that have a genetic connection to one of the parents. Gestational surrogacy is also used by couples experiencing infertility or have health concerns where a woman cannot carry a deliver a baby to term without putting herself and the baby at extreme risk.

Gestational surrogacy, as opposed to a traditional surrogacy where the surrogate is the child’s biological relative have fewer legal complications since a gestational surrogacy requires specific planning and arrangements. Before the CPSA was passed, it was illegal for anyone to enter into an agreement regarding gestational surrogacy. The CPSA is specific to gestational surrogacy where the surrogate is not a biological relative of the child. Agreements for traditional, or genetic surrogacy where the surrogate is biologically related to the child are still illegal and unenforceable.

While the CPSA is a significant step forward, the New York State law specifies that to be enforceable, all the statutory requirements must be met. Before entering into a gestational surrogacy agreement, it is vital to ensure that the agreement is legal and complete. You need to meet with an attorney who has a complete understanding of the law and will ensure all the details are properly accounted for. A breached or unenforceable contract can be a legal nightmare. If that unenforceable agreement involves a baby, the consequences can be both financially and emotionally devastating.

If you are considering gestational surrogacy, call the Law Office of Anthony LoPresti for a free initial consultation to go through this complex legal process.