What is the latest on change to New York surrogacy laws?

By Melissa Brisman, reproductive and surrogacy lawyer

For decades, compensated surrogacy has been illegal in many states within the United States, making it difficult for intended parents to find a state (let alone a woman) that would allow them to legally create their families

Many intended parents hope to find a gestational carrier as close to their residence as possible, giving them the opportunity to be involved in the pregnancy, visit the gestational carrier and accompany her to appointments. It also provides comfort knowing that when delivery day comes, the parents are only a short distance away.

New York State had been considering a bill that would allow for compensated surrogacy in New York, known as the Child and Parent Security Act. The proposed bill had support in New York’s Senate, but stalled in New York’s Assembly.

The proposed bill provided for many appropriate protections for both intended parents and gestational carriers. Among them, a written contract was required, legal representation on both sides, psychological counselling for everyone and a requirement that the gestational carrier be over 21 years of age.

All written contracts that conformed to the terms as set forth in the proposed bill would have been enforceable by either the gestational carrier or the intended parents. This means that intended parents would be viewed as the legal parents of the child delivered by the gestational carrier from the moment of birth, with all attendant rights and responsibilities, thus providing certainty and comfort for both the intended parents and the gestational carrier.

‘New York needs to come into the 21st century’

New York physicians and clinics offer patients some of the most advanced Assisted Reproductive Technology (ART) treatments and services in the country, yet New York’s legal system lags far behind these advancements. New York is one of the few states in our country that explicitly bans paid gestational carrier arrangements. It is about time New York caught up with the 21st century and while it had an opportunity to do so, the opportunity has passed, at least for the time being.

Despite the hard work and strong support of so many within New York State, Carl E Heastie, the assembly speaker, indicated in a statement that the proposed bill would not be brought to a vote during the session that ended this past June. He reasoned that ‘we must ensure that the health and welfare of women who enter into these arrangements are protected, and that reproductive surrogacy does not become commercialised’. He said he ‘looked forward to continuing this conversation in the coming months with our members and interested parties to develop a solution that works for everyone’.

In response, New York Governor Cuomo criticised lawmakers for failing to pass the bill comparing the issue to New York’s recently enacted measure that enshrined the same protections from Roe versus Wade into state law, which was a landmark ruling in the 1970s that offered pregnant women the right to have an abortion. He said: “I say, how about a woman’s right to choose? But in this state we say the woman must have an attorney, the woman must have a health counsellor, the transaction will be supervised under the Department of Health, the woman can’t be in dire economic conditions, but you still believe the woman is not competent to make that decision.”

It is our hope that with continued efforts, meaningful discussions will resume early on in the upcoming legislative session to address and respond to the concerns raised by Mr Beastie and others. We hope to successfully prove that this type of legislation is necessary and welcomed by New Yorkers.

Who is Melissa Brisman?

Melissa Brisman graduated from Hard Law School with honours and has a practice that covers Massachusetts, New Jersey, New York, and Pennsylvania, and is a licensed certified public accountant.

Melissa first started helping couples become parents in 1996.  She was her own first client, guiding and directing the process in which she and her husband, Dan, became parents of twin boys carried by a gestational carrier. A few years later, they had a daughter carried by another gestational carrier.

Melissa’s excellent reputation is based on her compassion and empathy for each intended parent.  Her expansive knowledge and experience has allowed her to create a staff that is prepared to successfully help parents build their family.  Melissa is considered a true pioneer in this field who advocates for changes in the law in this area and lectures to physicians, potential parents, universities, and lawyers around the world.

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