Looking Back: News in New York: the Child-Parent Security Act

Coming up on the one-year anniversary, the Child-Parent Security Act in the state of New York went into effect on February 15, 2021. Assembly Member Amy Paulin and Senator Brad Hoylman were the lead sponsors of the Child-Parent Security Act in the New York legislature. The act was signed into law by Governor Andrew Cuomo on April 3, 2020 after nearly a decade of advocacy by the surrogacy community. Coalitions of LGBTQ+, women’s rights, and religious advocacy groups successfully overturned the state’s standing on gestational surrogacy.

Prior to the passage of the Child-Parent Security Act, compensated gestational surrogacy was illegal in New York state. The outdated legislation only covered sperm donation and only conferred parental rights on the Intended Parents if they were married when the child was conceived using donated sperm because it was passed before the introduction of in vitro fertilization. The selective application of the 1974 law, Domestic Relations Law Section 73, left Intended Parents and unmarried parents vulnerable to losing parentage over their children. This leaves Michigan and Louisiana to be the only states prohibiting commercial surrogacy; while a few states still do not enforce compensation or contracts for gestational surrogacy.

The Child-Parent Security Act establishes a legal standing for gestational surrogacy contracts that are some of the most stringent in the nation for parents and Surrogates. Through this new act, the state of New York State is the first to have licensed gestational surrogacy programs or matching programs. Matching programs require Surrogates to be licensed by the Department of Health and informed consent by every party at each step of the process. To apply, Surrogates and at least one of the Intended Parents must be US citizens or permanent residents. 

New Documentation

The Child-Parent Security Act introduces new documentation to complete the birth certificates. These documents streamline procedures by allowing establishment of parentage at the hospital at the time of birth. They are managed by the State Health Department to allow future amendments or corrections.

  • Acknowledgement of Parentage (AoP): these may be signed by Intended Parents and Surrogates who conceived a child through assisted reproductive technologies or between Surrogates and genetic parents. Acknowledgement of Parentage agreements can also be voided under certain circumstances when the parentage is legally recognized by a different party than those who entered the agreement. AoP are submitted to the birth registrar at the hospital following the time of birth or to the local registrar which will forward the agreement to the State Health Department.
  • Gestational Surrogacy Agreement: these agreements are signed between Surrogates and Intended Parents once they have been matched. However, an initial screening is required for both parties before parents are matched to a Surrogate. Matching programs and independent legal representation for Surrogates and Intended Parents, ensure that this agreement is legally binding and enforceable. Contingent to the agreement, the Surrogate can begin the in vitro fertilization (IVF) procedure to implant the embryo. Similar to the AoP, gestational surrogacy agreements are submitted at birth and forwarded to the State Health Department for record keeping and possible amendments. 
  • Order of Parentage: a petition by the Family Court to determine parentage. This can be initiated by either a child, parent, participant, a person with a claim to parentage, a social service official or other governmental agency authorized by other law, or a  legal representative.

Registration 

The Surrogacy Registry is the central agency tasked with tracking gestational Surrogates in the state of New York. Upon receiving their license, Surrogates are asked to voluntarily join the registry.

The state of New York regulates any oversight in cases of surrogacy by IVF through the Assisted Reproductive Technology Service Provider Registration. This is to ensure the health and wellbeing of either party. Those registered as an Assisted Reproductive Technology Service Provider, do not necessarily have to have a gestational surrogacy program license; but they must be registered with the New York State Health Department.

Registered Assisted Reproductive Technology Service Providers are enrolled into the Department of Health’s Ova Donor Registry. Donors who are not also the Intended Parents are asked to voluntarily join the Ova Donor Registration. Tissue banks licensed by the state of New York must comply with specific regulations and procedures to collect donated ova (eggs). 

The Surrogates’ Bill of Rights

Nestled under the newly added Article 5-C Part 6 of the Family Court Act, the new act notably also creates the Surrogates’ Bill of Rights (SBR). This amendment details some of the strongest regulations for gestational Surrogates regarding health and welfare, right to independent counsel, health insurance coverage and reimbursement for related medical costs, life insurance and contract termination protections.

  • Health Care Decisions: Surrogates are entitled to make all decisions regarding their health and welfare by choosing whether or not to consent to any medical procedures, reduction or selection in the number of embryos carried, selection of healthcare providers, and even termination. This can get tricky when considering the alignment of Intended Parent’s financial situations and requests by the Surrogate.  
  • Independent Legal Counseling: legal representation for Surrogates must not be affiliated with the surrogacy matching program that paired the parties. In addition, the Intended Parents are required to pay for the Surrogate’s legal fees.  
  • Health Insurance: screenings, such as insurance reviews, are done before negotiations between parties can begin. Surrogates are entitled to comprehensive health coverage for the entirety of the pregnancy and a year following the birth. All health insurance and medical costs are covered by Intended Parents. Some insurances even offer specific surrogacy coverages. The SBR, however, is less clear in regards to covering pre-existing insurance plans for the Surrogates; for instance, if they were enrolled in a family plan and cover other individuals in their household before entering a gestational surrogacy agreement. 
  • Mental Health Counseling: in additional to paying for medical coverage, Surrogates have the right to enlist behavioral and psychological counseling as they see fit.
  • Life Insurance: policies may be taken out on Surrogates prior to treatment or implantation of embryos and continue a year post birth.
  • Termination: this act crucially, allows surrogates to back out of agreements, prior to pregnancy, without penalty or assessments.   

This landmark legislation by the State of New York opens the door of opportunity for Surrogates and parents across the nation as an example of safe and successful gestational surrogacy. The unprecedented protections under this act streamlined and overturned numerous challenges faced by LGBTQ+ families in particular. Previous regulations were especially harsh on LGBTQ+ families who sought contraception through assisted reproductive technology— with more obstacles and financial burdens placed on Intended Parents. The culmination of legal and financial obligations ensures that the entirety of this length process is protected and accountable for all involved parties.

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