Answers to Frequently Asked Questions about the New York Surrogacy Reform - The Child Parent Security Act (CPSA)


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On April 2, 2020, New York State passed a comprehensive surrogacy reform. With that, the state was removed from the shrinking list of the few states that still prohibited compensated surrogacy in the USA, and leapfrogged to have the most thoughtful surrogacy legislation ever drafted, with extensive protections to parents, babies, surrogates and donors, legal clarity and streamlines process for parentage rights, and attention to long term physical and mental health outcomes.

Please read below about some of the most important aspects of the reform, and how it may impact your parenting journey. You may see the most recent version of the bill at this link.

New York's Surrogacy Reform (The Child Parent Security Act / CPSA)
What are the general provisions of the law?

The most salient change in the CPSA is the reversal of the ban on compensated surrogacy in New York State. The bill limits surrogacy in NY to gestational surrogacy, and outlaws genetic (or “traditional”) surrogacy. Therefore the eggs much be provided by either the prospective mother of an egg donor, and an IVF process is necessary. Reasonable compensation is allowed above reimbursement of expenses, as "negotiated in good  faith  between the parties." The bill also provides clarity regarding  the establishment of parentage for intended parents of surrogacy from the moment of birth. A wide range of rules exist to regulate many aspects of the process, which in many other states are left to the discretion of  various practitioners and case law (see more below).

When will the reform take effect?

The bill is scheduled to take effect February 15, 2021.

Would surrogacy in NY be open to all prospective parents?

The NY surrogacy bill is the first in the United States to exclude  prospective parents from outside the state. The bill states that at least one intended parent needs to be "a United States citizen or a lawful permanent resident and was a resident of New York state for at  least six months."

How will surrogacy in NY be different from surrogacy elsewhere in the United States?

This legislation is unique in several ways.  First, it contains a Surrogates Bill of Rights, which is the first of its kind in the country.  It provides specifically for independent counsel, health and welfare decision making authority during the pregnancy and full medical and legal informed consent of all New York women acting as surrogate mothers for intended parents.  It also provides for psychological counseling, life insurance and the ability of the surrogate to terminate the agreement prior to embryo transfer.

The Child Parent Security Act also creates two formal, but voluntary, registries, one for egg donors and the other for surrogate mothers, which tracks information on the number of times someone has served as a donor or surrogate, their health information and any other information that the Health Commissioner deems appropriate.  The legislation also allows for consultation with The American Society of Reproductive Medicine (ASRM) to develop the best medical screening guidelines for potential surrogates.

How does this bill provide legal clarity on parentage of the prospective children?

The Child Parent Security Act, while creating legal surrogacy in New York, also provides for the establishment of parentage for intended parents of surrogacy, as well as lesbian couples who use a known sperm donor to assist them in having their families.  The process is known as a Pre-Birth Order and allows a court to issue a court order which terminates the rights of the surrogate and her spouse, or the known sperm donor, and affirms the legal parentage of the intended parents in a fully recognized court order which goes into effect at the moment of birth of the child.  The law also officially recognizes parentage orders from other states, ensuring that NY parents who have previously had children with surrogates in other states and obtained birth orders in those states to establish parentage, can rest assured that the other state’s order will be recognized by statute in New York.
Before this law’s passage, intended parents who resided in New York had few options to establish parentage.  Second or step parent adoption, a time consuming and somewhat invasive process, was the only way of establishing parental rights in New York

How are surrogates protected under the NY surrogacy reform?

Surrogates Bill of Rights, which is the first of its kind in the country.  It provides specifically for independent counsel, health and welfare decision making authority during the pregnancy and full medical and legal informed consent of all New York women acting as surrogate mothers for intended parents. It also provides for psychological counseling, life insurance and the ability of the surrogate to terminate the agreement prior to embryo transfer.

The Child Parent Security Act also creates two formal, but voluntary, registries, one for egg donors and the other for surrogate mothers, which tracks information on the number of times someone has served as a donor or surrogate, their health information and any other information that the Health Commissioner deems appropriate.  The legislation also allows for consultation with The American Society of Reproductive Medicine (ASRM) to develop the best medical screening guidelines for potential surrogates.

Is the NY surrogacy reform in line with the Men Having Babies Framework for Ethical Surrogacy?

Over the years this legislation has beed delibarated, MHB had the opportunity  to share our Ethical Framework with Senator Hoylman and others who worked on this legislation, and we're thrilled to see that the Child Parent Security Act is in very close alignments with our ethical position. 

Consistent with our framework, this bill is the first in the country (possibly worldwide) to include explicit language on why should surrogates and donors be compensated, and for what: "Compensation may be paid to a donor or person acting as surrogate based on medical risks, physical discomfort, inconvenience and the responsibilities they are undertaking in connection with their participation in the assisted reproduction. Under no circumstances may compensation be paid to purchase gametes or embryos or for the release of a parental interest in a child."

Most importantly, the CPSA provides for more than just baseline protections and suggested protocols for an ethical journey. The Surrogates Bill of Rights is a huge step toward ensuring that the process is balanced and that the woman acting as a surrogate mother has agency and support throughout the process. The law also provides for the security of parentage, which assures that all parties are working toward a single goal of creating a family for the intended parent or parents.

In another example, the legislation explicitly sets $750,000 as the amount for the surrogate's mandated life insurance benefits. This is in line with MHB's call to go above the current prevailing some of $250,000 across the United States. 

Contributors: Anthony Brown, Esq., MHB's former board chairman