The New York State Child-Parent Security Act: Gestational Surrogacy
What is gestational surrogacy?
Gestational surrogacy is a type of surrogacy in which the surrogate does not provide their own egg for fertilization. Gestational surrogacy provides an opportunity for New Yorkers to become parents despite circumstances in which pregnancy is either biologically not possible or medically contraindicated. Although gestational surrogacy increases opportunities for family building, it also involves medical, psychosocial, fiscal and ethical considerations, as well as legal complexities. These must be carefully considered by the surrogate and intended parent(s) in consultation with other professionals, including their healthcare providers and attorneys.
Gestational Surrogacy Fact Sheet
This fact sheet provides basic information about gestational surrogacy including some facts about:
- What is gestational surrogacy?
- Who chooses surrogacy to become a parent?
- Who can be a surrogate?
- What does it take to be a surrogate or an intended parent?
- Who else is involved in the gestational surrogacy process?
- And additional information and resources to learn more.
The Child-Parent Security Act
The Child-Parent Security Act (CPSA) legalized gestational surrogacy in New York State. The CPSA went into effect on February 15, 2021. An important aspect of the CPSA is the required licensure of gestational surrogacy organizations, sometimes referred to as matching programs. In addition, the CPSA establishes protections for gestational surrogates and a simple path to establish legal parental rights for parents who rely on assisted reproductive technology (ART) to have children.
Vital Records may amend the names of the intended parents on birth records for all of New York State except New York City as the State does not have records for the five boroughs contained in the City.
It is important to note that the CPSA protections only apply when the gestational surrogate resides in New York State and/or delivers the child in New York State. Intended parents can reside in or outside of New York State; however, at least one (1) intended parent must be a United States citizen or a lawful permanent resident of New York State for at least six months.
It is imperative that gestational surrogacy organizations follow all New York State licensing requirements. In addition, both the surrogate and intended parent(s) should know their rights, as well as their obligations, and the risks involved with surrogacy prior to arranging for surrogacy, signing any contracts, or administering any medications.
The following contains important information for gestational surrogacy organizations, potential gestational surrogates and intended parents.
Licensure Information for Gestational Surrogacy Organizations
New York State (NYS) is the first state to license gestational surrogacy organizations (otherwise called 'matching programs'). This is an important step in ensuring that gestational surrogacy organizations and the practice of gestational surrogacy safeguards the health and safety of the surrogate, the egg donor and the children born under gestational surrogacy agreements. Licensing gestational surrogacy organizations through the Department of Health and establishing specific legal protections for gestational surrogates will also help ensure that the surrogacy agreement is ethical and fair to all parties involved.
New York State regulates Assisted Reproductive Technology Service Providers (ARTSPs) that perform any medical procedures for a gestational surrogacy agreement such as in vitro fertilization (IVF) or embryo transfer. Additional information and resources regarding how to apply for a license as a NYS gestational surrogacy organization and the regulation of ARTSPs is provided below.
Gestational Surrogacy Program Licensure Process. In order to operate a gestational surrogacy organization in New York State, a person or entity must be licensed by the Department of Health. The links below provide specific information on the requirements for licensure and a list of currently licensed organizations.
Surrogate Registry. Once licensed, gestational surrogacy organizations must enroll in the Department of Health's Gestational Surrogate Registry. Licensed gestational surrogacy organizations will request a unique identifier for each New York State surrogate at the completion of a surrogacy agreement and provide them with a link to participate in a brief questionnaire within the voluntary surrogate registry. Participation by a New York State surrogate is voluntary.
Surrogacy Screening Guidelines. NYS Law requires health care providers who provide care to gestational surrogates to follow the Department of Health's clinical best practices as set by national standards of professional medical organizations such as the American Society of Reproductive Medicine (ASRM) and the American College of Obstetricians and Gynecologists (ACOG).
Gestational Surrogates' Bill of Rights. NYS Law also requires that organizations abide by the New York State Gestational Surrogates' Bill of Rights and ensure that gestational surrogates receive a copy of the New York State Gestational Surrogates' Bill of Rights. This document describes the rights gestational surrogates have as they relate to their health and welfare, right to independent counsel licensed to practice in New York State, health insurance coverage and reimbursement for related medical costs, life insurance and contract termination protections.
Information for Gestational Surrogates and Intended Parents. The New York State Child-Parent Security Act (CPSA) legalizes gestational surrogacy and establishes legal criteria for gestational surrogacy agreements that provide protections for both the surrogates and the intended parents and ensure all parties provide informed consent at every step of the process.
The CPSA establishes protections for surrogates to help ensure their health and safety and that of the child. Licensed surrogacy organizations are required to provide surrogates with a New York State Gestational Surrogates’ Bill of Rights to notify surrogates that the intended parents are required to afford these rights to the surrogates. In addition, potential gestational surrogates must meet New York State screening requirements to determine if they can serve as surrogates before they enter into surrogacy agreements. The CPSA provides a streamlined process for establishing parenthood when an intended parent is not a biological parent of the child.
Gestational Surrogacy Organizations and attorneys for the surrogate and intended parent(s) must refer to the full legal requirements set forth in New York State law, including, but not limited to, the requirements for a gestational surrogacy agreement, as set forth in Family Court Act Article 5-C, Part 4, and the Surrogates’ Bill of Rights, as set forth in Family Court Act Article 5-C, Part 6. The information above is not intended to be exhaustive or serve as legal guidance. The gestational surrogacy agreement is an a legal contract negotiated between the gestational surrogate and the intended parent(s) with the help of an attorney representing the gestational surrogate and another attorney representing the intended parent(s).
Surrogacy Agreements Without a Gestational Surrogacy Organization. Intended parents and surrogates should be aware that the CPSA also applies when the surrogate and intended parent enter into a surrogacy agreement without using a gestational surrogacy organization (matching program), such as when a surrogate offers to carry a child for an intended parent who is a friend or relative, including arrangements in which a surrogate is not being compensated.
Intended parents and surrogates with such a surrogacy agreement should be aware of their rights, and we encourage their healthcare provider to follow the NYS Department of Health's Surrogacy Screening Guidelines and the Clinical Best Practices as set by national standards of professional medical organizations such as the American Society of Reproductive Medicine (ASRM) and the American College of Obstetricians and Gynecologists (ACOG). The Gestational Surrogates' Bill of Rights is applicable to all gestational surrogacy agreements, even if no matching program is used.
- A surrogacy agreement may not be enforceable under New York State law if it does not comply with the CPSA. For example, if there is no written agreement and the intended parents do not compensate the surrogate, a court may need to determine who the legal parent is and whether the surrogate must be compensated.
- The attorney representing each party should be licensed to practice in New York State and have specific knowledge of the CPSA and the laws that govern surrogacy agreements in New York State.
- When a person acting as surrogate receives no compensation (sometimes referred to as an altruistic surrogacy), the surrogate may waive the right to have certain expenses paid for by the intended parent(s).
Gestational Surrogacy Agreements, Acknowledgment of Parentage and Orders of Parentage
Contact the NYS DOH Gestational Surrogacy Program
Assisted Reproductive Technology Service Provider Registration, Ova Donor Registry, Ova Donor Fact Sheet and Ova Donation Guidelines
Assisted Reproductive Technology Service Provider Registration. New York State regulates Assisted Reproductive Technology Service Providers (ARTSPs) that perform any medical procedures for a gestational surrogacy agreement such as in vitro fertilization (IVF). Oversight includes registration of ARTSPs and requirements to help ensure the health, safety, and informed consent of those who donate their eggs and gestational surrogates. ARTSPs do not need to be licensed as gestational surrogacy programs if they are acting solely as ARTSPs.
The link below will take you to the registration site. Additional documents below provide information about egg donation for those considering donating their eggs and guidelines for ARTSPs.
Ova Donation Registry. Once registered, ARTSPs must enroll in the Department of Health's Ova Donor Registry. The Ova Donor Registry is the central tracking registry of ova donors in New York State. ARTSPs will ask the donor who is not also the intended parent if they would like to participate in the ova donor registry. Participation by a donor is voluntary.
Ova Donation Fact Sheet. Some women choose to donate their own ova (eggs) to help others conceive. Tissue banks involved in the donation process must be licensed by NYS as tissue banks and comply with specific requirements. The document below is intended for those considering donation. It describes the donation process and some of the things a donor can expect. Some of these (for example, HIV testing) are required by law, while others will depend on the specific egg bank's policies.
Ova Donation Guidelines. New York State regulates the process of evaluating and selecting ova (egg) donors to ensure the health and safety of both the donor and any recipient. Tissue banks involved in the donation process must be licensed by NYS as tissue banks and comply with specific requirements. In addition to these requirements, the guidelines below describe other factors that tissue banks should consider.