Gestational Surrogacy can be a wonderful option for those who wish to become parents but cannot become pregnant. A gestational surrogate (called a gestational carrier in New Jersey) is a woman who agrees to assist another to become a parent by gestating and giving birth to their child. The gestational surrogate undergoes an embryo transfer with the embryo provided by the intended parents — often (but not always) created with at least one of the intended parents’ genetic material. Prior to undergoing the embryo transfer, the gestational surrogate and intended parents enter into a surrogacy agreement which sets forth many of the important details surrounding the arrangement. These agreements are legally enforceable in New York and New Jersey provided they comply with the state statutory requirements. It’s essential for you to consult with experienced legal counsel at the start of the process to ensure that your surrogacy agreement is legal complaint. Since Rumbold & Seidelman played a critical role in drafting and advocating for passage of New York’s Surrogacy statute, we are well versed in these statutory requirements and we’d be happy to advise you throughout your surrogacy journey.
In all gestational surrogacy arrangements, the intended parents provide the embryo used in conception. The embryo may be formed from your own gametes, from donated gametes (sperm/eggs) or a donated embryo. Unless you’re going to find a surrogate on your own, you’ll need to retain the services of a surrogacy matching program. Any surrogate you work with will need to be carefully screened and medically cleared by your IVF Clinic. Part of the screening process will entail a review of the potential surrogate’s prior pregnancy records. The doctors will also perform various medical examinations to determine whether the surrogate can gestate a child without a risk of harm to herself or the expected child. She will also be required to undergo a mental health evaluation, often at the IVF clinic, to ensure that she has the mental and emotional capacity to participate in the surrogacy process and to relinquish custody of the child. Finally, if you’re working with a surrogacy matching program, they will likely perform their own assessment of the surrogate which may include criminal background and child abuse screenings as well as an examination of her lifestyle to ensure that it’s conducive to a healthy pregnancy. Many surrogacy matching programs also require the Intended Parents to undergo criminal background screening before being accepted into their program.
Once the surrogate has been medically cleared by the IVF Clinic, you and the surrogate and her spouse or partner should undergo a joint counseling session to make sure you’re comfortable working with one another, that your expectations are aligned and that everyone is prepared for the emotional journey ahead.
Gestational Surrogacy agreements are legally enforceable in New York and New Jersey provided the agreement conforms to the strict statutory requirements. In both states you can petition the court, typically during the second trimester of the pregnancy, for a pre-birth order of parentage. The pre-birth order goes into effect the moment your child is born. Since you’re the child’s legal parent you can rest assured that you will have full parental rights, and decision-making authority during your child’s hospital stay. Given the complexity of the legal process, the parties should work with attorneys licensed in the state where the agreement will be enforced to ensure that the agreement meets those requirements. (We’ve provided a more detailed description of New York and New Jersey Surrogacy law here)
Gestational Surrogacy agreements are legally enforceable in New York and New Jersey provided the agreement conforms to the strict statutory requirements. In both states you can petition the court, typically during the second trimester of the pregnancy, for a pre-birth order of parentage. The pre-birth order goes into effect the moment your child is born. Since you’re the child’s legal parent you can rest assured that you will have full parental rights, and decision-making authority during your child’s hospital stay. Given the complexity of the legal process, the parties should work with attorneys licensed in the state where the agreement will be enforced to ensure that the agreement meets those requirements. (We’ve provided a more detailed description of New York and New Jersey Surrogacy law here)
What are the risks?
Anyone considering a traditional surrogacy arrangement should proceed with caution. In these arrangements, the surrogate provides the egg used in conception and the surrogate is the child’s legal parent until the time her parental rights are terminated by the court. The New York and New Jersey surrogacy statutes, which render gestational surrogacy agreements legally enforceable, do not apply to traditional surrogacy. Consequently, you’ll have none of the protections afforded participants in gestational surrogacy arrangements. In short, any agreement by the surrogate to relinquish her parental rights would be void and unenforceable. New York intended parents are also strictly prohibited from paying any compensation to a traditional surrogate. Payments made in excess of those permitted by law are subject to severe sanctions (including criminal penalties for the professionals assisting in these arrangements). Despite these restrictions, there are heartwarming stories of successful traditional surrogacy arrangements – between close relatives or friends – where the surrogate received no compensation beyond legally permissible expenses. Those permissible expenses include: the cost of the medical procedures, legal fees, mental health counseling fees and the limited living expenses permitted in a New York adoption.
How do you secure your legal relationship to your child?
Where the intended father is genetically connected to the child, he can either acknowledge paternity after the birth or he can institute a court paternity proceeding. The non-genetically connected second parent will be required to adopt the child. As part of the adoption proceeding, the parties will be required to submit an affidavit to the court disclosing all payments (or promises to make future payments) made in connection with the arrangement.
The importance of the Memorandum of Understanding
Although traditional surrogacy agreements are not legally enforceable, it’s a good idea for the parties to enter into a memorandum of understanding. The memorandum of understanding provides a road map to the intended parents and surrogate and therefore helps to avoid confusion and misunderstandings. Some of the issues addressed in the Memorandum of Understanding include:
Guidance from a legal professional experienced in surrogacy and assisted reproduction law is necessary in every surrogacy journey, whether you live in New Jersey or New York. We can help you get started by explaining the legal process, referring you to appropriate and skilled professionals and by drafting the surrogacy agreement. For more information, call us today at (914) 779-1050 or contact us.
