After a long effort by LGBTQ parents, prospective parents, and other advocates, the State of New York will finally legalize gestational surrogacy—and simplify and strengthen the laws around recognizing nonbiological parents and single parents in all families formed through reproductive technologies.
The Child-Parent Security Act, which was sponsored by New York State Senator Brad Hoylman (D) and Assemblymember Amy Paulin (D), will be passed as part of the 2020 New York State Budget. The new law will legalize gestational surrogacy (where the surrogate is not genetically connected to the child because she did not contribute her egg), provided that the arrangement follows “best practices” that protect the interests of the surrogate, intended parents, and child. Under the law, compensation would be allowed for medical and insurance expenses related to gamete retrieval and storage, the pregnancy, and up to eight weeks of recovery, but not for purchase of gametes or embryos or to pay for relinquishing a parental interest in a child, and may not be conditioned upon the purported quality or genetic traits of the gametes or embryos. The law will also establish a Surrogate’s Bill of Rights. The Protecting Modern Families Coalition, which helped fight for the law, says this will be “the nation’s strongest protections” for surrogates, guaranteeing them:
The right to make all health and welfare decisions regarding themselves and their pregnancy, including whether to terminate or continue the pregnancy;
Independent legal counsel of their choosing, paid for by the intended parents;
Access to a comprehensive health insurance policy paid for by the intended parents;
Access to counseling and life insurance.
An earlier version of the legislation failed last June, in part from opposition by those who worried that surrogates would become wombs for rent. To my mind, while that is not an unreasonable concern, the protections for surrogates in the New York legislation are specifically designed to counter them.
The new legislation will also update state law to allow intended parents who use a sperm or egg donor to have a secure legal relationship with the child from the moment of birth. In cases where there are two intended same-sex parents, as I hope you all know by now, having both parents’ names on the birth certificate is not enough. That’s why LGBTQ legal experts still recommend that non-gestational parents do second-parent adoptions. Such adoptions, however, are often expensive, take several months to happen after the child’s birth (leaving the child legally vulnerable, should something happen to the gestational parent), and involve lots of paperwork and an intrusive home study. The new law will allow a nonbiological parent to instead file a free Acknowledgment of Parentage form or to seek an Order of Parentage, involving a much cheaper, simpler process (a single court visit), which could be completed before the child is born, and no home study. As a court judgment, this would be as legally binding as a second-parent adoption. It will also help end legal uncertainty for single parents who use a sperm donor.
(For those paying extra-close attention: An Order of Parentage is somewhat different from an Acknowledgement of Parentage. Speak with a lawyer if you are considering either; my non-lawyerly understanding is that the AoP forms are even simpler and easier than an Order of Parentage, since you don’t have to go to court, but they are not yet as legally tested in many states.)
The legislation is also notable for using gender-inclusive language to refer to surrogates: “‘Genetic surrogate’ shall mean a person who gives birth to a child,” it says, in only one of many examples.
For Hoylman and Paulin, the legislation was personal: Hoylman has two children via surrogacy, but he and his husband had to work with a surrogate in California; Paulin has experienced fertility challenges and has said she is “well aware of the pain and suffering that is attached to wanting a child”—suffering made worse by outdated laws that add extra layers of complexity. Governor Andrew Cuomo (D) has been a strong supporter of the bill.
The Rev. Stan J. Sloan, CEO of Family Equality, which spearheaded the Protecting Modern Families Coalition, said in a statement, “The Child-Parent Security Act will serve as a national model for forming and protecting families as well as the surrogates who want to help them. New York has a proud tradition of progressive leadership, and today we add to the legacy of Seneca Falls and Stonewall by saying loudly and clearly that love makes a family.”
More work remains to be done in other states to update parentage laws to fit the needs and realities of families today. Rhode Island advocates are working to pass a bill that would update outdated laws and make it easier for parents of any gender, married or not, to establish legal parentage of a child born through assisted reproduction. The bill failed last year. And in Massachusetts, the Supreme Judicial Court ruled just yesterday in the case of a two-dad family that the state Probate and Family Court has jurisdiction to establish the parentage of a child born through gestational surrogacy in Massachusetts to an intended parent living outside the United States. Advocates in Massachusetts are also trying to pass the Massachusetts Parentage Act, which would clarify laws around surrogacy and establish a Voluntary Acknowledgement of Parentage to simplify the processes of parental recognition even further.
The New York win is a big one, though, in a city that could use some good news right about now. Congratulations to those who made it happen and to all those whom it will benefit.
