What to Know About Gestational Surrogacy, Now Legal In New York

gestational surrogacy legalization illo

Alex Dos Diaz / Verywell

Key Takeaways

  • As of February 15, 2021, gestational surrogacy is legal in New York State.
  • Gestational surrogacy is when a surrogate is not biologically related to the baby they are carrying and is an option for parents who are unable to carry the baby to term themselves.
  • The new legislation provides protections for both intended parents and surrogates.

Celebrities such as Anderson Cooper, Kim Kardashian West, and Elizabeth Banks have all spoken openly about their experience using surrogacy to have children. Now, New Yorkers can more easily pursue surrogacy themselves.

After years of work, the Child-Parent Security Act (CPSA) passed on April 2, 2020, legalizing gestational surrogacy in New York State. The law went into effect on February 15, 2021, paving the way for residents to hire and act as surrogates with protections in place.

If you’re unfamiliar with the process, gestational surrogacy is when the surrogate does not provide an egg and has no biological relationship to the child they’re carrying. Genetic surrogacy — when the surrogate provides an egg — does exist, but it is still illegal in New York State.

Understanding Gestational Surrogacy

In the case of gestational surrogacy, the intended parents may provide an embryo made with their sperm and egg or one or both from a donor. The latter may be the case for same-sex couples, people who cannot provide sperm or an egg due to health reasons such as age or past medical history, or single parents.

In any case, the CPSA requires a single pre-birth court visit to legally recognize intended parents on the child’s birth certificate. 

One person who acutely understands the opportunities surrogacy creates is state senator Brad Hoylman, a sponsor of CPSA. “My husband and I had our two daughters through surrogacy—but we had to travel 3,000 miles away to California in order to do it. As a gay dad, I’m thrilled parents like us and people struggling with infertility will finally have the chance to create their own families through surrogacy here in New York,” said Hoylman in a statement when the legislation passed.  

Brad Hoylman, NY State Senator

As a gay dad, I’m thrilled parents like us and people struggling with infertility will finally have the chance to create their own families through surrogacy here in New York.

— Brad Hoylman, NY State Senator

CPSA not only aids intended parents but also protects surrogates in New York State. The act established a Gestational Surrogates’ Bill of Rights, which includes, among other things, that a gestational surrogate has the right to:

  • Make all health and welfare decisions during the pregnancy, such as consenting to a cesarean delivery and deciding to reduce the number of embryos they are carrying.
  • Legal counsel, paid for by the intended parents.
  • Health insurance during the entire period of acting as a surrogate and for 12 months after the birth, paid for by the intended parents.
  • A life insurance policy, paid for by the intended parents.
  • Terminate the agreement before becoming pregnant.

The Surrogacy Process For New York Residents Before CPSA

Before February 15, surrogacy was illegal in New York State, meaning any resident who wanted to have a legally binding surrogacy contract needed to go to another state. Such was the case for Kimberly and her husband, New York residents who had two children via surrogacy.

After being unable to conceive on their own, Kimberly and her husband began to pursue surrogacy about a decade ago. An agency in New Jersey first matched them with a 20-year-old from Texas. After the couple flew the surrogate and her husband out to meet them, the potential surrogate backed out.

Eventually, the agency matched them with a Florida-based woman who carried their first child. Due to the distance, they were only able to attend one doctor’s appointment during the pregnancy, and Kimberly’s husband was unable to arrive in time for the birth of their child.

“You miss out on a lot of stuff because you're not close by,” says Kimberly. 

Another issue for anyone having a baby via surrogacy in another state: Kimberly and her husband couldn’t take their children home to New York without being named parents on the birth certificates.

The couple got a pre-birth order in Florida for the first birth, meaning they were immediately listed as parents on the child’s birth certificate. However, they could not secure a pre-birth order for the second birth in Minnesota and had to appear in court with their baby at two days old to have the birth certificate amended to list them as the parents.

Since the couple used an egg donor, Kimberly recalls added confusion around listing her as the mother. At one point, someone told her she might have to adopt the baby after her husband was put on the birth certificate, even though they had gone to Minnesota specifically so that adoption wouldn’t be necessary. Eventually, the court added both parents to the birth certificate, and the couple took their baby home to New York.

CPSA should take this specific headache out of the surrogacy process. “This law brought us up to the current times in terms of the law matching the science, and then provided an incredible opportunity for so many families to be able to use surrogacy to build their family without having to go out of state with the extra cost and uncertainty that adds to the process,” says Casey DiPaola, an attorney and director of intended parent services at New York Surrogacy Center, who joined the fight to pass CPSA a few years ago. She helped with yearly revisions and lobbying for the act.

According to DiPaola, New York’s law took all the best practices from across the country and made them mandatory. 

Ian and his husband, also New York residents, traveled across the country for the births of their two children. “We began our surrogacy journey over eight years ago and went in with eyes wide open, knowing it would be a complicated process to navigate,” says Ian. “As a same-sex couple, we needed to research all steps—finding an egg donor, an IVF doctor, attorney, and surrogate agency.”

With the help of a New Jersey-based attorney, the couple learned how surrogacy laws vary state-to-state and which places are most friendly to same-sex couples. Unlike Kimberly, Ian and his husband were fortunate to have a smooth process of finding a surrogate in one of their preferred states. Their first surrogate lived in Nevada and the second was in Wisconsin.

What To Know And Expect Before Starting The Surrogacy Process

Surrogacy is a complicated and lengthy process to undertake but, when done carefully, can end in bringing home a new baby. After having a problematic surrogacy experience herself, Susan Baldomar started Chelsea Surrogacy Advisors to provide insight and education for people looking into surrogacy.

Advisors such as Baldomar inform clients on everything from how to vet an agency to ensuring your surrogate’s medical papers are authentic. While she believes her role will be more straightforward with the new precautions in New York, she cautions that there is still leeway, and potential parents must do their due diligence.

Here are some points to consider before starting the surrogacy process.

Surrogacy Is Costly

While CPSA means the cost of travel during surrogacy is likely less for potential parents, there are many other pricey aspects to keep in mind.

DiPaola tells her clients to expect to pay anywhere between $85,000 and $150,000 for surrogacy. The total cost depends on factors such as how many embryo transfers are needed, if an egg or sperm donor is used, and the cost of your surrogate’s health insurance.

Find A Surrogate With Similar Ideals

Under the surrogates’ bill of rights, a surrogate controls health and welfare issues, delivery, and whether to terminate the pregnancy. “It's not enough to just match with a gestational carrier that has passed medical and psychological screening," says Andrew Vorzimer, an attorney focused on third-party reproduction, surrogacy, and egg donation at Vorzimer/Masserman - Fertility & Family Law Center.

Andrew Vorzimer, reproduction attorney

It's also critically important that the intended parents have selected a surrogate who has similar values, religious beliefs, and share a vision for what a healthy pregnancy is going to look like.

— Andrew Vorzimer, reproduction attorney

Vorzimer continues, "It's also critically important that the intended parents have selected a surrogate who has similar values, religious beliefs, and share a vision for what a healthy pregnancy is going to look like." He advocates for clients and helps them put together the needed team for pursuing surrogacy.  

On the surrogate’s side, this is equally important to ensure the intended parents don’t pressure you into doing something that makes you uncomfortable.

Carefully Screen Agencies

Unfortunately, an agency may not always have your best interest at heart. If things become difficult between you and your surrogate or it doesn’t work out, they may not assist.

During Kimberly’s first surrogacy experience, she worked with an attorney affiliated with the agency she went through. She says this became a conflict of interest and, when problems arose with her surrogate, both agency and attorney refused to get involved. Baldomar emphasizes the importance of having counsel separate from your agency.

The same precautions are needed for egg donation agencies. The egg donor agency Ian worked with refused to refund their $10,000 after their first donor failed her medical screening and the second failed her psychiatric screening. 

What This Means For You

Surrogacy is complicated and consulting with advocates at the beginning of the process can help you have a positive experience. Understanding the emotional and financial costs can help determine if surrogacy is the right option for you.

New York is the first state to require licenses for gestational surrogacy programs, which may help with some of the issues mentioned above. DiPaola recommends working with attorneys familiar with surrogacy and assisted reproduction versus general family law attorneys.

As for agencies, make sure they’re familiar with CPSA and not trying to use a one-size-fits-all approach across all states where surrogacy is legal, as New York’s rules are unique, she adds.

By Sarah Fielding
Sarah Fielding is a freelance writer covering a range of topics with a focus on mental health and women's issues.