Governor Andrew Cuomo aims to make gestational surrogacy a legal option in New York

by Jennifer “Jay” Palumbo

On January 22nd, 2020 in Albany, New York, Governor Andrew Cuomo unveiled a budget proposal that included legalising gestational surrogacy, which is when a woman who is not genetically related to a child carries the baby for another person or couple who is otherwise unable to

In the United States, New York is one of only three that has a ban on any form of compensated gestational surrogacy. The other two states are Louisiana and Michigan and in all three, this ban prevents those dealing with infertility issues as well as gay couples from entering into a contract with someone to carry a child to full term. Governor Cuomo and advocates of making surrogacy a legal and viable option in New York are in support of the “Child Protection Security Act” (CPSA), which aims to provide protection for surrogates, intended parents and the children created from this life-changing alliance.

There was an effort by Cuomo and many advocates in support of CPSA to repeal the ban in 2019

However, in addition to protests from religious organisations as well as women’s groups concerned about the possibility of exploitation of surrogates (particularly those from low-income backgrounds), it failed to get enough support in the Assembly and was removed from the final state budget.

The Child-Parent Security Act was reintroduced by Governor Cuomo in his 2020 State Address in the hopes that this is the year it will pass. For those who have dealt with fertility issues first-hand or who have built their families through third-party reproduction, they can empathise with the struggles of the LGBTQ community, any person who has been diagnosed with infertility or those, who due to a medical issue like cancer, may want to explore surrogacy to expand their family.

One of the top missions of the CPSA is to create “best practice” laws legalising and regulating compensated gestational surrogacy. This includes an in-depth process that takes many months to thoroughly ensure that the surrogate is medically, psychologically, and financially stable.

Just a few highlights of the CPSA include:

  • Legalize surrogacy and ensure “best practices” in the field so that the interests of the surrogate, intended parents, and child are protected.
  • Solidify a solid and legal relationship exists between intended parents and a gestational carrier
  • Relationship with their child from the moment of birth.
  • Streamline the process for non-biological parents including gay couples.
  • Remove any legal ambiguity for single women who rely on a sperm donor to build a family.
  • Confirms that the gestational carrier and her spouse (or partner) are protected and represented throughout the legal process by independent legal counsel of their own choosing that would be paid for by the intended parents.
  • Provides a health insurance policy for the surrogate that covers the entire pregnancy as well as eight weeks after the birth of the child.
  • Requires that the surrogate be at least 21 years old
  • Makes certain that the surrogate can use the services of a health care practitioner of her choosing and receives a thorough medical evaluation prior to entering the agreement, paid for by the intended parents.
  • Spells out in the agreement that the surrogate has a right to terminate the pregnancy.
  • Safeguards that for compensated surrogacy, intended parents place funds in escrow with an independent escrow agent upfront, prior to the gestational carrier beginning the process.
  • Makes certain that upon request, the intended parents must ascertain and pay for a life insurance policy for the gestational carrier that enables the surrogate to designate a beneficiary of her choice.
  • That intended parents make counselling available for the gestational carrier to address any concerns resulting from the surrogate’s participation in the agreement.

On February 11th, a team of advocates that include Resolve: The National Infertility Association, the Protecting Modern Families Coalition and Bravo’s Andy Cohen will all be in Albany in support of passing the Child-Parent Security Act.

Stay tuned as these efforts are being made to reverse the ban on compensated gestational surrogacy in New York and those in support aim to make it easier for patients and the LGBTQ community to build families.

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