New York’s New Law on Gestational Surrogacy and Legal Recognition for Nonbiological Parents Goes Into Effect

New York's New Law on Gestational Surrogacy and Legal Recognition
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A new law is now in effect in the state of New York that not only legalizes gestational surrogacy but also simplifies and strengthens the legal recognition of nonbiological parents and single parents in families formed through assisted reproduction. Easy forms? No home study? Yes, please!

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The Child-Parent Security Act, which was sponsored by New York State Senator Brad Hoylman (D) and Assemblymember Amy Paulin (D), was signed into law last year and is now in effect, as Governor Andrew Cuomo (D) announced yesterday.

The new law:

  • Legalizes gestational surrogacy (where the surrogate is not genetically connected to the child because she did not contribute her egg), provided that the arrangement follows “best practices” that protect the interests of the surrogate, intended parents, and child. Gov. Cuomo’s office called these “the strongest protections in the nation for parents and surrogates, ensuring all parties provide informed consent at every step of the process.” The legislation is also notable for using gender-inclusive language to refer to surrogates.
  • Establishes a Surrogate’s Bill of Rights, “to ensure the unfettered right of surrogates to make their own healthcare decisions, including whether to terminate or continue a pregnancy, and that surrogates have access to comprehensive health insurance and independent legal counsel of their choosing, all paid for by the intended parents,” as Gov. Cuomo’s office describes it.
  • Streamlines the process for legally recognizing a nonbiological parent, allowing intended parents who use a sperm or egg donor to have a secure legal relationship with the child from the moment of birth. The new law will also help end legal uncertainty for single parents who use a sperm donor.

Let’s dig into that last point a little more. In cases where there are two intended same-sex parents, as I hope you all know by now, having both parents’ names on the birth certificate is not enough. That’s why LGBTQ legal experts still recommend that non-gestational parents do second-parent adoptions. Such adoptions, however, are often expensive, take several months to happen after the child’s birth (leaving the child legally vulnerable, should something happen to the gestational parent), and involve lots of paperwork and an intrusive home study.

The new law, however, offers nonbiological parents two new options:

  1. A free Acknowledgment of Parentage (AoP) form that may be filed at the hospital right after the child’s birth, with no home study needed. This is “a voluntary document to add parental rights to the non-birthing parent,” per the state Department of Health.
  2. A court-issued Order of Parentage that requires a single court visit, which can be completed before the child is born, and no home study.

As I’ve explained before, AoPs (or VAPs, Voluntary Acknowledgements of Parentage, as they are called in some states), are an exciting new option in a few states that offer an exceptionally easy way to legal parenthood for nonbiological parents. The New York form (PDF) states specifically that it “will establish parentage of our child with the same force and effect as an Order of Parentage entered after a court hearing.” At the same time, however, as GLAD Senior Staff Attorney Patience Crozier told me last year, while AoPs/VAPs should be equivalent to a court decree of parentage, they are as yet untested in courts and not broadly available in many states. Court decrees of parentage, like New York’s Order of Parentage (or second-parent adoptions) may therefore still be the more secure option for the time being. Nevertheless, as she said, “I think it’s really important for people to be able to have access to both. Every family situation is different. You want everybody to feel that they have the level of protection appropriate for them.”

Outside of New York, coalitions in both Massachusetts and Connecticut are pushing for similar updates to those states’ parentage laws that would also offer simpler and more secure paths to legal parenthood for nonbiological parents. Follow those links to learn more and see how you can get involved.

Have questions? The New York Department of Health has posted guidelines about Gestational Surrogacy Agreements, Acknowledgments of Parentage, and Orders of Parentage, and has more on gestational surrogacy here. Beyond that, I recommend talking with a lawyer (I’m not one) to see how the law might apply to your situation and what your personal best path forward is.

Need a lawyer? The LGBT Bar Association of Greater New York (LeGaL) has an online platform where you can have their team connect you with attorneys in their Lawyer Referral Network, and the LGBT Family Law Institute offers a Family Law Attorney Directory. Or try the brand-new “connecting rainbows” service to find a lawyer in their directory.

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