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New York legalises commercial surrogacy

22 February 2021
Appeared in BioNews 1084

New York's new surrogacy law has come into effect, ending a ban on commercial surrogacy in the state.  

The Child Parent Security Act establishes legal criteria for gestational surrogacy agreements that provide protections for parents and surrogates and ensure parties provide informed consent throughout the process.

'For far too long, LGBTQ+ New Yorkers and New Yorkers struggling with fertility were denied the opportunity to start a family because of arbitrary and archaic laws' said New York governor Andrew Cuomo. 'With this law now in effect, no longer will anyone will be blocked from the joys of starting a family and raising children simply because of who they are.'

Commercial surrogacy was previously illegal in New York state, and non-paid 'altruistic' surrogacy agreements were deemed unenforceable and not legally binding. The first bill seeking to repeal the ban was introduced in 2012 but was opposed by both the Roman Catholic Church and some feminists, who argued that paid surrogacy led to the exploitation of women. Another bill with a greater focus on LGBTQ+ rights was passed by the New York Senate in 2019 but met with similar objections.

Addressing these concerns, the recent legislation includes stricter protection through a 'Surrogates' Bill of Rights', to ensure the unfettered right of surrogates to make their own healthcare decisions, including whether to terminate or continue a pregnancy, and that surrogates have access to comprehensive health insurance and independent legal counsel of their choosing, all paid for by the intended parents. 

Lawyer Vicki Ferrara, founder and legal director of Worldwide Surrogacy in Fairfield, Connecticut said the new law 'brings surrogacy into a new realm of ethics that we haven't seen in other states.'

'Ethical surrogacy practices that are optional in some states will now be statutorily required in New York. And no out-of-state surrogacy agency can operate in New York without obtaining a state licence, thereby becoming obligated to follow the new regulations' she told ABC News.

The act also addresses other issues that can be faced by couples creating their families using surrogacy or gamete donation, by creating a streamlined process for establishing parenthood when one of the individuals is a non-biological parent. Known as 'second parent adoption' the process that allows same-sex partners to be recognised as legal parents to their partner's biological child, now only requires a single visit to court during the pregnancy.

Governor Cuomo announces gestational surrogacy now legal in New York State
NY Gov |  16 February 2021
No longer an outlier: New York ends commercial surrogacy ban
ABC News |  14 February 2021
28 June 2021 - by Zaina Mahmoud 
The long process of reforming surrogacy laws in the UK continues, with legislation expected from the Law Commission of England and Wales and Scottish Law Commission early next year...
15 March 2021 - by Dr Christina Weis 
If accepted, the new bill would prohibit foreigners and unmarried couples from seeking surrogacy in Russia...
17 June 2019 - by Suzi Denton 
A bill that proposes to lift the ban on commercial surrogacy in New York State was passed by the State Senate last week...
6 November 2017 - by Antony Starza-Allen 
A US surrogate has been united with her genetic child who she carried alongside the intended parents' embryo in an apparent case of superfetation... 
6 May 2014 - by Andrew Powell 
I've always been interested in the law related to surrogacy. Through the Pegasus Scholarship Scheme founded by the Inner Temple, I obtained a placement at a law firm in Los Angeles that specialised in surrogacy and fertility law. I was keen to see how commercial surrogacy operates within a regulated paradigm...
Comment ( - 23/02/2021)
And nowhere are the rights of the person created even considered. The right to an authentic identity for a start. Why are the rights of those who commission children gained at the expense of the person created? If you have a birth certificate with the names of your biological parents, why would you deny that to another person - who will stay a child for a very short time. Not a mention of the disenfranchised grief and genetic bewilderment suffered by so many donor-conceived people.
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