As a nationwide surrogacy agency, Los Angeles Surrogacy stays abreast of the evolution of the legal framework of our domain of activity. Our responsibilities extend to taking care of intended parents and surrogate mothers, and to refer them to appropriate physicians and attorneys when the advice the former need relates to the medical and legal domains. Keeping our staff updated on the legal developments affecting our field of expertise enables us to direct our parents and surrogates to the right attorney when necessary.
Quick reminder: What is surrogacy?
Surrogacy is a reproductive option by which a woman carries and delivers a child for another person or couple. With the evolution of IVF, this medical method has been the recourse of choice of people facing infertility issues.
However, the legal framework regulating the domain of surrogacy, both from the contractual and medical standpoints, varies from state to state. We find it useful to summarize these differences in a series of articles we are publishing on the topic. In this article, we will specifically look at the regulatory and legal situation of the industry in the state of New York.
IMPORTANT DISCLAIMER: The information contained in this article may not be substituted for proper legal advice. We are not attorneys, we never give anyone any legal advice. This article and the information it contains are strictly presented for informational purposes only. It is extremely important that, if you are considering surrogacy as a viable method for your ends, whether as an intended parent or as a surrogate mother, you get properly advised by an attorney specializing in the matter to make conclusions and decisions about the subject and your situation. Do not take this information as legal advice: it is not. If you need to be directed to an attorney, you can contact us to find resources for you.
History of Surrogacy in the State of New York
Until recently, surrogacy was an illegal practice in the State of New York. However, a new law was passed in 2020 legalizing and regulating surrogacy arrangements. Let’s review the history of surrogacy pregnancy and its legal framework in this state since the 1990s.
As noted above, before the passage of the 2020 law, surrogacy was illegal in New York State. In 1992, the New York Court of Appeals issued a landmark ruling in the case of Baby M, which involved a surrogate mother who wanted to keep the child she had carried for a couple.
The court ruled that surrogacy contracts were against public policy and unenforceable. This decision set precedent and effectively made surrogacy illegal in the state.
Since then, a number of cases involving surrogacy arrangements have been litigated in the state. In some cases, surrogacy agreements have been upheld, in others they have been struck down. These cases provide a degree of insight into the legal status of surrogacy.
How has Case Law Developed Since 2000: Some Examples
One of the first cases involving surrogacy in New York after the Baby M decision was the case of In re Baby Doe. This case involved a couple who had entered into a surrogacy agreement with a woman who had agreed to carry their child. After the child was born, the surrogate mother changed her mind and refused to relinquish custody. The court ruled in favor of the couple, finding that the surrogacy agreement was enforceable.
Another case, Raftopol v. Ramey, involved a same-sex couple who had entered into a surrogacy agreement with a woman who had agreed to carry their child. The surrogate mother had a change of heart and decided to keep the child after it was born. The court found that the surrogacy agreement was unenforceable, citing the Baby M decision.
In another case, L.F. v. Breitstein, a woman had agreed to serve as a surrogate for her brother and his wife. After the child was born, the surrogate mother changed her mind and sought custody of the child. The court ruled that the surrogacy agreement was unenforceable, but that the surrogate mother had no legal right to custody of the child.
In 2014, the case of F.T. v. Surrogate’s Court involved a surrogacy arrangement between a couple and a woman who had agreed to carry their child. The surrogate mother died during the pregnancy, and the intended parents sought custody of the child. The court ruled that the surrogacy agreement was enforceable and awarded custody of the child to the intended parents.
The most recent case involving surrogacy in New York was the case of Matter of C.C. and A.L. v. M.M. and E.C. This case involved a same-sex couple who had entered into a surrogacy agreement with a woman who had agreed to carry their child. After the child was born, the surrogate mother refused to relinquish custody. The couple filed a lawsuit seeking custody of the child, and the case eventually went before the New York State Court of Appeals. In 2018, the court ruled that the surrogacy agreement was unenforceable, citing the Baby M decision.
New York’s 2020 Surrogacy Law
New York’s 2020 surrogacy law marks a significant shift in the state’s approach to surrogacy. The new law, which went into effect on February 15, 2021, legalizes and regulates surrogacy arrangements in the state.
The new law includes several key provisions that provide legal protections for intended parents, surrogates, and children born through surrogacy arrangements. One of the most important is the establishment of a legal framework for these agreements.
Under the law, surrogacy agreements must be in writing and must be reviewed and approved by an independent attorney for both the intended parents and the surrogate. The agreement must also specify the rights and responsibilities of all parties involved, including the surrogate, the intended parents, and any donor of genetic material.
Surrogate Mothers’ Protection
The law also provides legal protections for surrogates, including the right to make decisions regarding their own health care during the pregnancy and the right to receive comprehensive medical care throughout the pregnancy and childbirth. Surrogates are also entitled to legal representation throughout the surrogacy process, and any contract that is not in compliance with the law is unenforceable.
Another important provision of the law is the establishment of legal parentage for children born through surrogacy arrangements. Under the law, intended parents who have entered into a valid surrogacy agreement are presumed to be the legal parents of the child from the moment of birth. This presumption can only be rebutted in limited circumstances, such as in cases of fraud or duress.
Protection of the New Born
The law also requires that all parties involved in a surrogacy arrangement undergo medical and psychological evaluations before the surrogacy process begins. The intended parents must also undergo a criminal background check and provide proof of financial responsibility.
In addition to these protections, the law also includes provisions to protect the rights of children born through surrogacy arrangements. Children born through surrogacy are entitled to the same rights and protections as any other child, including the right to support, care, and custody from their parents.
A Legal Landmark for the LGBTQ+ Community
The passage of New York’s surrogacy law has been hailed as a victory for LGBTQ+ rights and reproductive justice. LGBTQ+ individuals and couples, who have historically faced legal barriers to parenthood, will now have greater access to surrogacy arrangements in New York.
Critics of the law have raised concerns about the commercialization of surrogacy and the potential for exploitation of surrogates. Some have argued that surrogacy arrangements are inherently exploitative, and that the law does not go far enough to protect the rights of surrogates.
Others have raised concerns about the potential for surrogacy agencies to engage in unethical practices, such as exploiting vulnerable individuals for financial gain.
A Favorable Legal Framework
Despite these concerns, the passage of New York’s surrogacy law represents a significant step forward for reproductive justice in the state.
The law now provides legal protections for all parties involved in surrogacy arrangements and establishes a framework for safe and ethical surrogacy practices.
As a surrogacy agency, we view these developments as progress for intended parents and surrogate mothers as well. Let’s be realistic, however: there remain societal challenges to be tackled to make the medical practice of surrogacy a fully accepted way to conceive a child.
The formation of a legal framework tends to institutionalize the practice by enshrining it into the law. This will progressively change the nature of the debate, towards something less polarizing. We foresee that the law will be refined to protect even more completely the interest of the child, both unborn and born.