Surrogacy Contracts
Surrogacy is an arrangement where a woman (the surrogate) carries and gives birth to a child for another person or couple, the intended parent(s). It is a complex and highly regulated process that requires careful legal consideration to ensure the rights and responsibilities of all parties involved are respected. In New York, surrogacy laws are structured to protect the intended parents and the surrogate mother, however, it is important to have an attorney experienced in fertility law to help you navigate the laws and regulations, ensuring a smooth process.
There are two primary types of surrogacy: traditional and gestational. In traditional surrogacy, the surrogate uses her own egg and is inseminated with the sperm of the intended father, making her the biological mother. In gestational surrogacy, the surrogate carries an embryo created through in vitro fertilization (IVF) and has no genetic link to the child. Most surrogacies in New York are gestational, as it avoids complications with parental rights that can arise with traditional surrogacy.
The legal framework surrounding surrogacy in New York is robust, particularly after the 2020 legalization of compensated gestational surrogacy. New York now offers legal protections for all parties involved, but a carefully drafted surrogacy remains an essential tool for ensuring that all aspects of the surrogacy process are clear and enforceable.
The Importance of a Surrogacy Contract
In New York, a surrogacy contract is a legally binding document that outlines the terms and conditions under which the surrogate agrees to carry the child for the intended parents. A well-drafted contract is essential for preventing misunderstandings or disputes between the surrogate and the intended parents. The contract covers a wide range of issues, including compensation, medical care, parental rights, and confidentiality.
Why Surrogacy Contracts are Essential
Clarity and Security: A contract sets clear expectations for all parties involved. It specifies the surrogate’s medical care, compensation, and responsibilities, as well as the rights of the intended parents.
Legal Protection: The contract provides a legal framework that ensures all parties understand their rights and obligations. It also helps protect the intended parents’ legal parental rights and minimizes potential legal disputes.
Emotional Clarity: Surrogacy is a highly emotional process. A well-drafted contract can help manage expectations and prevent misunderstandings that could result in conflict.
Common Issues Addressed in a Surrogacy Contract
Medical and Health Care Requirements: The contract outlines who is responsible for the surrogate’s medical care, including prenatal care, medical procedures, and the costs associated with them.
Compensation: The agreement specifies the surrogate’s financial compensation, which can include reimbursement for medical expenses, pregnancy-related costs, and any additional payments for carrying multiples or for health risks.
Legal Considerations of Surrogacy in New York
Prior to drafting and executing a surrogacy contract. It is important that intended parents meet with an attorney to discuss the legal process and considerations involved in a surrogacy journey. In New York, there is a distinct legal framework provided by the passage of the Child-Parent Security Act (CPSA) in 2020, which legalized compensated gestational surrogacy. This law now allows intended parents to enter into enforceable surrogacy contracts and establishes guidelines to protect the rights of both surrogates and intended parents.
In New York, compensated surrogacy is legal, but there are strict requirements that must be met. For example, the surrogate must be at least 21 years old, and she must have previously given birth to a child. She cannot be paid more than a specified amount for her services, and she must undergo medical, psychological, and legal evaluations before entering into a contract. The surrogacy contract must be reviewed by independent legal counsel for both the surrogate and the intended parents. This ensure that both parties understand their legal rights and obligations.
Parental Rights
In New York, the law presumes that the intended parents, not the surrogate, will be the legal parents of the child if the surrogacy agreement complies with the CPSA. This is a significant legal benefit for intended parents, as it minimizes the need for a lengthy adoption proceeding post-birth. Intended parents can instead obtain a pre-birth order from the court, confirming their parental rights before the child is even born.
However, it is important to note that the CPSA does not apply to traditional surrogacy, which can complicate the legal parentage issue if the surrogate is also the genetic mother of the child. In such cases, intended parents may need to pursue adoption after the child is born, depending on the circumstances.
Insurance and Medical Expenses
The surrogacy contract in New York should clearly define who is responsible for the surrogate’s medical expenses, including insurance coverage. Surrogates must carry their own health insurance, which may be either covered or reimbursed by the intended parents.
In some cases, surrogates may need to purchase additional insurance to cover potential pregnancy complications. The contract should stipulate whether the intended parents or the surrogate will cover any additional costs.
Confidentiality and Privacy Concerns
Given the sensitive nature of surrogacy, confidentiality is often a key consideration. The surrogacy contract should include provisions to protect the privacy of the surrogate and the intended parents. This can include ensuring that medical records and personal information are kept confidential and that no details about the surrogacy process are disclosed without consent.
How a Fertility Lawyer Can Help
A fertility lawyer is essential to navigating the complex legal landscape of surrogacy in New York. Fertility lawyers specialize in reproductive law and are knowledgeable about state and federal laws concerning surrogacy, parental rights, and assisted reproduction.
Fertility lawyers must be well-versed in family law, reproductive law, and the specifics of New York’s surrogacy regulations. They assist intended parents and surrogates in understanding their legal rights and responsibilities and ensure that the surrogacy agreement is legally binding and enforceable.
A fertility lawyer’s role begins with drafting a surrogacy agreement that complies with New York’s laws. This includes ensuring that the contract contains all necessary provisions regarding medical care, compensation, parental rights, and dispute resolution. The lawyer will also help ensure that both the surrogate and the intended parents have legal representation, as required by law.
As your fertility lawyer, your attorney has the responsibility to protect your interests. For intended parents, this means ensuring your legal rights are secured and that you have full parental rights over the child. For the surrogate, this means ensuring fair compensation, medical protection, and legal support.
Although surrogacy contracts are designed to prevent conflicts, disputes can still arise. A fertility lawyer is responsible for resolving any disagreements that may come up, such as changes to the terms of the agreement, medical complications, or unforeseen circumstances. This may involve negotiation, mediation, or litigation, if necessary.
The Surrogacy Contract: Key Clauses
Given everything we have outlined above, a well-drafted surrogacy contract should address several key clauses, such as:
Parental Rights and Responsibilities: The contract should clearly outline the legal rights of the intended parents, ensuring that they will be recognized as the child’s legal parents. This can include a pre-birth order to establish parental rights prior to the child’s birth.
Compensation and Financial Terms: The surrogacy contract must specify the compensation for the surrogate, including base pay, reimbursement terms for medical expenses, and any additional compensation for multiple pregnancies or risks associated with the pregnancy.
Medical Procedures and Health Care: The contract should detail the medical procedures required for the surrogacy, including IVF and prenatal care. It should also outline who will be responsible for covering the medical expenses and whether additional insurance will be required.
Termination Clauses: The contract must include provisions for termination in case of medical complications, miscarriage, or other unforeseen circumstances. It should also specify how compensation and medical care will be handled in these situations.
Confidentiality and Privacy: The contract should include confidentiality clauses to protect the privacy of both the surrogate and the intended parents, if desired. This ensures that the personal information and details of the surrogacy process are not disclosed without consent.
Dispute Resolution: The contract should also outline how disputes will be resolved, such as through mediation, arbitration, or litigation. This ensure that any conflicts can be handled swiftly and fairly.
Risks and Challenges in Surrogacy Contracts in New York
While New York offers significant legal protections for surrogacy, there are still potential risks. Intended parents must ensure that their legal rights are fully recognized, particularly if there are complications with the surrogacy. Surrogates must also protect their rights and ensure fair compensation, emotional support, and medical care.
We're Here For You
If you are considering a surrogacy journey, have already embarked on your journey, or are a surrogate helping an individual/couple grow their family, our office is here for you. As experienced surrogacy and fertility lawyers, our team is ready to advocate for your interests by carefully drafting and negotiating your surrogacy agreement. Call us today at 212.378.3840 to schedule your initial 45-minute consultation with one of our fertility law experts, or, complete our form to have our team reach out to you.