What Happens When Surrogacy Agreements Go Wrong?
A recent New York case highlights the importance of getting it right.
For intended parents and gestational surrogates, a surrogacy journey involves countless moving pieces. There are medical appointments, fertility clinics, insurance considerations, matching, legal agreements, and, ultimately, preparations for the arrival of a child. Among all of those steps, the legal agreement may seem like just one part of a much larger process.
A recent New York appellate decision demonstrates why it is much more than that. In May 2026, the Appellate Division, Fourth Department decided Matter of Baby A. (Mary B.L.), a case involving two children conceived through a gestational surrogacy arrangement. The case illustrates the importance of carefully following the requirements of New York’s Child-Parent Security Act when entering into a surrogacy agreement.
The decision does not suggest that surrogacy arrangements in New York are inherently uncertain. To the contrary, New York law provides a detailed statutory framework designed to protect intended parents, surrogates, and children born through assisted reproduction. But Baby A. demonstrates why following that framework is critically important.
New York’s Child-Parent Security Act
Gestational surrogacy became legally recognized in New York when the Child-Parent Security Act (“CPSA”) took effect in 2021. The CPSA established a comprehensive legal framework governing gestational surrogacy arrangements and parentage following assisted reproduction.
Among other things, New York law establishes eligibility requirements for intended parents and gestational surrogates, provides important protections for surrogates, requires independent legal representation, establishes requirements for surrogacy agreements, and creates procedures through which intended parents can obtain judgments of parentage.
When the statutory requirements are satisfied, a surrogacy agreement can be enforceable under New York law. The details, however, matter. That became particularly clear in Matter of Baby A.
What Happened in Matter of Baby A.?
The case involved two intended parents and a gestational surrogate who planned for the surrogate to carry two embryos.
In February 2023, a surrogacy agreement was claimed to be executed. The intended parents later petitioned Family Court for a judgment of parentage under Article 5-C of the Family Court Act. The court initially granted the routine petition, and issued a judgment declaring that the intended parents would be the legal parents of the children upon their birth.
However, a significant problem was subsequently discovered.
One of the intended parents had ultimately not signed the surrogacy agreement and, according to the appellate decision, had been unaware of the agreement and the parentage proceeding. The intended parents and surrogate subsequently executed another surrogacy agreement.
By then, however, the surrogacy process had already progressed beyond another important statutory deadline. The children were born shortly thereafter. But, what followed was extensive litigation concerning the judgment of parentage and the legal effect of the agreements.
New York’s Child-Parent Security Act
Gestational surrogacy became legally recognized in New York when the Child-Parent Security Act (“CPSA”) took effect in 2021. The CPSA established a comprehensive legal framework governing gestational surrogacy arrangements and parentage following assisted reproduction.
Among other things, New York law establishes eligibility requirements for intended parents and gestational surrogates, provides important protections for surrogates, requires independent legal representation, establishes requirements for surrogacy agreements, and creates procedures through which intended parents can obtain judgments of parentage.
When the statutory requirements are satisfied, a surrogacy agreement can be enforceable under New York law. The details, however, matter. That became particularly clear in Matter of Baby A.
What Happened in Matter of Baby A.?
The case involved two intended parents and a gestational surrogate who planned for the surrogate to carry two embryos.
In February 2023, a surrogacy agreement was claimed to be executed. The intended parents later petitioned Family Court for a judgment of parentage under Article 5-C of the Family Court Act. The court initially granted the routine petition, and issued a judgment declaring that the intended parents would be the legal parents of the children upon their birth.
However, a significant problem was subsequently discovered.
One of the intended parents had ultimately not signed the surrogacy agreement and, according to the appellate decision, had been unaware of the agreement and the parentage proceeding. The intended parents and surrogate subsequently executed another surrogacy agreement.
By then, however, the surrogacy process had already progressed beyond another important statutory deadline. The children were born shortly thereafter. But, what followed was extensive litigation concerning the judgment of parentage and the legal effect of the agreements.
What Went Wrong?
New York law establishes specific requirements that must be satisfied for a surrogacy agreement to be enforceable. The Fourth Department concluded that neither agreement in Baby A. met those material statutory requirements.
The problem with the first agreement was straightforward: one of the intended parents had not signed it. Family Court Act §581-403 requires an enforceable surrogacy agreement to be in a record and signed by each intended parent as well as the person acting as surrogate and, in certain circumstances, the surrogate’s spouse.
The second agreement presented a different problem. Although all the relevant parties executed the later agreement, it was not completed before the commencement of medical procedures in furtherance of embryo transfer. Under New York law, the surrogacy agreement must be executed before that point.
The appellate court therefore concluded that neither agreement satisfied the material statutory requirements necessary for making the agreement enforceable. This had major consequences for what happened next.
What Happens When a New York Surrogacy Agreement is Not Enforceable?
The Child-Parent Security Act addresses that possibility. Under Family Court Act §581-407, when a surrogacy agreement does not meet the material requirements of Article 5-C, the agreement may not be enforceable. The court must instead determine parentage based upon the intent of the parties while also considering the best interests of the child.
That provision became central in Baby A. The intended parents and the surrogate agreed about their original intent: the intended parents were to be the children’s parents. There was no dispute among them that this had been the purpose of the surrogacy arrangement. Family Court relied heavily on that shared intent and issued another judgment declaring the intended parents to be the children’s legal parents.
The Appellate Division concluded that this was not enough. Because the agreements were unenforceable, the statute required the court not only to consider the parties’ intent but also to take the children’s best interests into account. The appellate court therefore reversed the judgment and sent the matter back to Family Court for an immediate hearing at which both considerations would have to be addressed.
Why Timing Matters in a New York Surrogacy Journey
One of the most important lessons from Baby A. is that the timing of the legal process mattesr. Under New York law, the surrogacy agreement must be completed before the commencement of medical procedures in furtherance of embryo transfer.
This means that the legal process should not be treated as something that can simply be completed after the medical process is already underway. New York’s Department of Health similarly describes the process as one in which the intended parents and surrogate work with their separate attorneys to prepare, review, revise, and execute the agreement before medical procedures begin, other than permitted screening procedures.
For intended parents and surrogates, coordinating the legal and medical timelines is therefore an important component of the overall journey.
Why Does New York Require Separate Attorneys?
The CPSA also requires independent legal representation. A gestational surrogate must be represented by independent legal counsel of the surrogate’s own choosing throughout the contractual process and the duration of the surrogacy agreement. The intended parent or parents must likewise have independent legal representation.
These requirements recognize that intended parents and surrogates are entering into an arrangement involving significant and distinct legal rights and responsibilities. Separate representation ensures that each party has an attorney whose responsibility is to advise and advocate for that client’s interests. The surrogate’s attorney is not the attorney for the intended parents, even when the intended parents are responsible for the surrogate’s legal fees.
Likewise, counsel for the intended parents represents the intended parents, not the surrogate. Independent legal representation is therefore not merely a formality. It is an important part of the legal protections built into New York’s surrogacy framework.
What Else Does a New York Surrogacy Agreement Address?
A properly prepared a surrogacy agreement addresses considerably more than the parties’ intention to have a child through gestational surrogacy. New York law imposes detailed requirements concerning the contents of the agreement and the rights and obligations of the parties.
Among other matters, the statutory framework addresses the surrogate’s rights concerning health and welfare decisions during the pregnancy, insurance, legal representation, compensation where applicable, escrow requirements, and the intended parents’ responsibilities toward any resulting child.
New York also provides a Surrogate’s Bill of Rights, which protects important rights of individuals acting as gestational surrogates. These protections are a central part of New York’s approach to compensated gestational surrogacy. Because the statutory requirements are extensive, surrogacy agreements should be prepared specifically for the arrangement and in compliance with applicable New York law.
The Surrogacy Agreement and the Judgment of Parentage Serve Different Roles
Another important aspect of the New York process is establishing the intended parents’ legal parentage. The surrogacy agreement establishes the contractual rights and responsibilities of the parties, while Article 5-C also provides a legal procedure for obtaining a judgment of parentage.
A judgment of parentage provides legal recognition of the intended parent or parents as the child’s parents. The CPSA allows parentage proceedings involving a child conceived pursuant to a surrogacy agreement to begin before the child’s birth when statutory requirements are met.
For intended parents, coordinating the agreement and parentage process can help ensure that the legal framework is in place as the pregnancy progresses and the child’s birth approaches.
What Does Baby A. Mean for Intended Parents and Surrogates?
Baby A. involved highly unusual circumstances, and it should not be read to suggest that properly structured New York surrogacy arrangements routinely result in disputes over parentage. Instead, the decision illustrates why New York created detailed statutory requirements in the first place.
When the requirements of the CPSA are properly satisfied, Article 5-C provides a legal framework through which parties can establish their respective rights and intended parentage. When material requirements are not satisfied, however, the legal analysis can become substantially more complicated.
The fact that everyone involved intended the same people to become the children’s parents did not, by itself, cure the statutory defects in the agreements in Baby A. that is perhaps the most significant takeaway from the decision. Intent matters, but so does compliance with the legal process designed to give effect to that intent.
Legal Guidance Should Begin Early in the Surrogacy Process
Surrogacy is a deeply personal journey, but it is also a highly structured legal process in New York. For intended parents and gestational surrogates, legal counsel should be involved early enough to coordinate with the medical process and ensure that the required agreements are completed before applicable statutory deadlines.
The goal of careful legal planning is not to make the surrogacy journey more complicated. It is to provide clarity about the parties’ rights and responsibilities and establish the legal framework necessary to recognize the intended family. Matter of Baby A. offers a powerful reminder of why those details matter.
At Douglas Fertility & Surrogacy Law Group, PLLC, our attorneys assist intended parents and gestational surrogates with New York surrogacy agreements, parentage proceedings, assisted reproduction matters, and other fertility-law issues.
If you are considering gestational surrogacy in New York, or are preparing to begin a surrogacy journey, contact us today to discuss the legal process and the next steps in protecting the family you are building.
This article is provided for general informational purposes concerning New York fertility and surrogacy law only and does not constitute legal, medical, insurance, tax, or other professional advice. Surrogacy and parentage matters are fact-specific, and individuals should obtain advice concerning their unique circumstances.