- Protections for Surrogates: the “Surrogate Bill of Rights”
- Protections for Intended Parents
- Protections for Children Born of Assisted Reproduction
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What is the Child-Parent Security Act?
The Child-Parent Security Act is a law in New York state that legalizes gestational surrogacy and provides a simple path to establish legal parental rights for parents who rely on assisted reproductive technology (ART) to have children.
The Child-Parent Security Act was signed into law by Governor Andrew Cuomo on April 3, 2020, and will take effect on February 15, 2021.
Advocates had been campaigning to reform New York parentage law and legalize gestational surrogacy since 2012. In 2018, Family Equality formed the Protecting Modern Families Coalition to help advance the Child-Parent Security Act. The coalition brought together advocates from LGBTQ+, women’s, religious, and infertility organizations to work alongside champions in the Senate, the Assembly and the Governor’s office to overhaul New York’s outdated parentage laws. In the New York legislature, the lead sponsors of the Child-Parent Security Act were Assembly Member Amy Paulin and Senator Brad Hoylman.
Parentage Law and Surrogacy in New York State
Before passage of the Child-Parent Security Act in 2020, gestational surrogacy was illegal in New York state. Alongside Louisiana and Michigan, New York was one of only three states in which gestational surrogacy was illegal (and one of two that provided criminal sanctions for violations).
New York law also posed significant challenges for some parents in establishing legal parental rights with their children. In particular, establishing parental rights was difficult for same-sex families and for families that were formed utilizing assisted reproductive technology (ART). LGBTQ+ couples had to endure an invasive, expensive and time-consuming process often including home studies and court-ordered adoptions to ensure that both parents and children were protected by a legal relationship.
The Child-Parent Security Act not only expands protections for LGBTQ+ families in New York state, but it establishes a model for the rest of the country to follow. Most states still do not have affirmative legislation regarding gestational surrogacy contracts or laws which streamline the process of creating binding legal relationships between children born with assisted reproduction and their parents.
How Does the Child-Parent Security Act change New York Law?
The Child-Parent Security Act modernizes New York law by adopting best practice recommendations of the American Bar Association and the NY Health Department’s Task Force on Life and Law. This new law:
- Ensures that intended parents who enlist the help of a third-party to conceive their child have a secure legal relationship with their child from the moment of birth.
- Legalizes gestational surrogacy (where the surrogate’s egg is not used and the surrogate has no genetic connection to the child), provided that the arrangement follows best practices in the field that protect the interests of the surrogate, intended parents, and child (see below).
- Eliminates demeaning and expensive requirements for securing legally enforceable parenthood for lesbian couples and others. For example, the partner of a person giving birth can now be named as a legal parent of their newborn child immediately after birth whether or not they are married, creating a legally-binding parent-child relationship as soon as the child is born.
- Ends uncertainty for securing legal parenthood for single women who rely on a sperm donor to build a family.
Protections for Surrogates: the “Surrogate Bill of Rights”
The Child-Parent Security Act creates “best practice” protections specifically crafted to protect gestational surrogates. The new law creates a “Surrogate Bill of Rights” that:
- Gives the surrogate the sole right to make all health and welfare decisions regarding themselves or their pregnancy (including, but not limited to, whether to consent to a cesarean section or multiple embryo transfer, utilize the services of a health care practitioner of their choosing, terminate or continue the pregnancy, and/or reduce or retain the number of fetuses or embryos they are carrying).
- Gives the surrogate the right to independent legal counsel, of their own choosing, paid for by the intended parent(s).
- Gives the surrogate the right to have a comprehensive health insurance policy that covers preconception care, prenatal care, major medical treatments, hospitalization and behavioral health care that extend throughout the pregnancy and for 12 months after all paid for by the intended parent(s).
- Gives the surrogate the right to psychological counseling to address any issues arising as a result of their participation in the surrogacy arrangement, to be paid for by the intended parent(s).
- Gives the surrogate the right to a life insurance policy that takes effect prior to any treatment up to the maximum amount they would qualify for or $750,000 whichever is lower, extending for 12 months after the end of the pregnancy, to be paid for by the intended parent(s).
- Gives the surrogate the right to walk away from an agreement prior to pregnancy without penalty.
Protections for Intended Parents
The Child-Parent Security Act provides the following legal protections for intended parents:
- Assures the legal relationship between intended parents and their child(ren), from the moment of birth.
- Creates a simple, no-cost pathway to legal parentage for the partner (whether or not married) of the gestating parent, where both agree they are parents.
- Assures that the person acting as the surrogate for the intended parents is healthy and capable, emotionally and physically, of carrying a pregnancy to term.
- Assures that an egg or sperm donor is not a parent, where there is proof of donative intent.
Protections for Children Born of Assisted Reproduction
The Child-Parent Security Act provides the following legal protections for children born using assisted reproductive technology:
- Provides for clarity as to who the child’s parents are, from the moment of birth.
- Establishes legally-binding financial and parental responsibility for the health and welfare of the child.
- Assures that both parents (where applicable), whether or not married and whether or not they contributed genetic material, are legally and financially responsible for the child, even in the event of the death of one parent or the separation of the parents.
