For nearly 440,000 infertile New Yorkers and same-sex couples, gestational surrogacy is the only option for starting or growing a family. However, compensating a surrogate is illegal in New York, and there are no established legal grounds for the intended parents to have custody of their child at birth.
A bill introduced by Senator Brad Hoylman, D-Manhattan, and Assemblywoman Amy Paulin, D-Scarsdale, would lift the ban on compensated surrogacy, and provide clear legal procedures to ensure that children born through gestational surrogacy have secure, legally recognized relationships with their intended parents.
New York is one of only five states where compensated surrogacy is illegal. This illegality coupled with a lack of legal recourse for intended parents makes it risky to utilize a surrogate.
Senator Hoylman and his husband had to seek surrogacy options in California in order to start their family.
“It was an amazing experience, but during that whole process, my husband and I were asking each other, ‘why can’t we do it in New York state?’” he said. “We have amazing fertility clinics, many of them in New York City, and we have incredible individuals that want to be parents and experience the joy of parenthood, but for whatever reason have not been able to have children.”
The Child Parent Security Act (S.17/A.6959) would lift the ban on compensated gestational surrogacy, where the surrogate has no genetic link to the child. It also includes provisions for the legal contractual agreement between the intended parents and the gestational carrier.
Heather and Juan Cruz, lifetime residents of New York, spent seven years trying to conceive a child, and went through nine in vitro fertilization cycles to no avail.
“Fortunately, we were approached by Heather’s sister, who carried our child… we didn’t know that compensating a surrogate is actually illegal. And throughout this process there were several times that we felt we should have compensated Heather’s sister,” Juan Cruz said. “For example, she missed work to attend doctor’s appointments, those days she didn’t get paid.”
In addition to potential criminal consequences for compensating their surrogate, the Cruz family faced New York’s legal precedent, which assigns parentage to the surrogate at the time of birth.
“After the child was born, it came to light that the hospital was prepared not to let us leave with the child until there was a final court order and judge approved document that said we were the legal parents,” Cruz said. “It turned a beautiful and celebratory time into a very stressful and anxious time because we couldn’t leave with our own biological child after spending seven years trying to have a child.”
The CPSA would address and correct these issues, as current New York law regarding this issue was passed in 1974, before IVF techniques grew safer and more popular for couples with fertility issues.
According to Denise Seidelman, attorney for the Cruz family, the current statutes in New York are antiquated and need to be updated.
“Women clearly have the ability to make reproductive decisions for themselves,” she said. “The continued existence of New York’s surrogacy agreement ban is unnecessarily paternalistic and out of step with current feminist attitudes.”