New York State Legalizes Gestational Surrogacy

legal surrogacy in New York

 

New York State Legalizes Gestational Surrogacy

A protracted battle over the future of compensated gestational surrogacy in New York was resolved on April 2 when state lawmakers approved a budget that included legislation proposed by out gay Manhattan State Senator Brad Hoylman and Westchester Assemblymember Amy Paulin that legalizes gestational surrogacy once and for all.legal surrogacy in New York

Although New York was one of just a small handful of states that had yet to legalize the practice, which entails a surrogate carrying a baby who has no biological relation to her, the campaign to pass such legislation in the state was stymied last year by concerns that the surrogates who carry babies — as well as those women donating eggs — were not afforded sufficient protection and rights. The bill put forth by Paulin and Hoylman, who had his two daughters via surrogacy, cleared the upper chamber last year but never reached the Assembly floor following resistance from some women in the lower chamber, including out lesbian Assemblymember Deborah Glick, who told The New York Times that gestational surrogacy was “pregnancy for a fee, and I find that commodification of women troubling.”

Among other issues with last year’s bill, Glick and others expressed uneasinessabout the reality that most working people could not afford to spend tens of thousands of dollars to have children through gestational surrogacy. The bill primarily benefits wealthier individuals in addition to those who are looking for financial compensation by donating eggs or carrying babies.

Hoylman, however, told Gay City News in February that he hopes the push towards universal healthcare means that such reforms could eventually alleviate some of the healthcare costs of surrogacy.

The dispute over the future of surrogacy in the state continued into this year when Manhattan State Senator Liz Krueger and Assemblymember Didi Barrett of Dutchess and Columbia Counties introduced a separate surrogacy bill that would have included, among other provisions, a controversial eight-day window during which the surrogate and intended parents would share legal responsibility for the child — raising questions about whether the surrogate might refuse to turn the child over or seek some ongoing legal relationship with them — something Hoylman described in a February interview with Gay City News as a “non-starter.”

The eight-day window was not included in the final version of Hoylman and Paulin’s bill, but some elements of Krueger’s legislation appear to have been incorporated, such as additional protections for the surrogate and the egg donor. Hoylman and Paulin had long defended their own bill as boasting the “strongest protections in the nation for surrogates” by placing significant responsibility on the intended parents to pay for her healthcare, legal representation, and other costs tied to the pregnancy. Additional protections for egg donors were also included in this year’s bill.

By Matt Tracy, Gay City News, April 2, 2020

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The UK Supreme Court awards damages for commercial surrogacy

UK Supreme Court

A landmark ruling by The UK Supreme Court awards damages to a woman for Californian commercial surrogacy following a delay in detecting cancer in smear tests and biopsies.

Louisa Ghevaert provided expert evidence on surrogacy to the UK Supreme Court, donor conception and fertility law in this case and comments:UK Supreme Court

“This legal ruling from the UK Supreme Court is an important watershed in the development of medical negligence, fertility and surrogacy law in the UK. It enables a ‘surrogacy’ head of claim in cases where a person’s fertility and ability to conceive a child has been lost or impaired through medical negligence, including claims for overseas commercial surrogacy in appropriate cases. It marks a real step forward in recognising the value and importance of individual fertility and surrogacy. However, there is still more that needs to be done to preserve and protect people’s fertility and their ability to have children”.

Background

The Defendant admitted failing to detect signs of cancer from smear tests in 2008 and 2012 and biopsies in 2012 and 2013. As a result, the  Claimant developed invasive cancer of the cervix which required chemo-radiotherapy treatment that rendered her infertile and caused severe radiation damage to her bladder, bowel and vagina.

Due to the late cancer diagnosis and the increased size of the tumour, the Claimant was unable to have fertility sparing surgery and suffered a complete loss of fertility. This was a devastating blow as she had always wanted a large family of her own.  She was so devastated by the diagnosis that she postponed her cancer treatment twice to obtain further medical opinions about the viability of fertility sparing surgery. On learning this was not available to her, she underwent a cycle of ovarian stimulation in June 2013 and harvested and froze 8 mature eggs.  A few days later, she underwent surgery followed by chemo-radiotherapy. This caused irreparable damage to her uterus and ovaries so she could not conceive or carry a pregnancy and it caused her to enter premature menopause.

The Claimant therefore sought damages to enable her to enter into a commercial surrogacy arrangement in California to have a much wanted family of her own. In contrast to the informal and legally restricted nature of surrogacy in the UK, commercial surrogacy in California operates through a well established system which offers legally binding surrogacy arrangements and pre-birth orders in the Californian court.

Legal Ruling

The case was first heard in the English High Court in June 2017, where a limited damages award for two altruistic UK surrogacies was made in the sum of £74,000.  

Louisa Ghevaeart Blog, April 1, 2020

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Effect of COVID-19 on LGBTQ Family Planning

Effect of COVID-19 on LGBTQ family planning

The Effect of COVID-19 on LGBTQ Family Planning is evolving and far reaching.  It is also temporary.

Effect of COVID-19 on LGBTQ Family Planning – The COVID-19 pandemic has affected us all in ways more numerous to describe.  Those of us with families have had to learn about home schooling, some the hard way (me).  Everyone has had to adjust to what essentially has become a home quarantine situation and the emotional effects of social isolation.  And we are all witness to the world going through a major change which will create a new reality for everyone when we emerge on the other side.  But we will emerge on the other side. effect of COVID-19 0n LGBTQ family planning

While I myself have experienced the loss of a friend due to the virus, as well as the infection of a family member, I know that we all are doing our best to maintain a sense of normalcy and peace within.  Practicing this type of self-care will help mitigate the effects of COVID-19 on LGBTQ family planning.

The effects of COVID-19 on LGBTQ family planning are very real.  I have said in the past that there are no accidental pregnancies in the LGBTQ community.  Everything is carefully thought out and planned in advance.  However, the COVID-19 virus has created specific and real-world disruptions to our ability to create families.

For example, those were using, or planning to use, an IVF clinic for either surrogacy, artificial insemination (AI), intrauterine insemination (IUI) or in vitro fertilization (IVF) procedures have experienced an actual shut down of normal operations.  The clinic administrators that I have spoken with are optimistic that once the virus is contained, or at least the infection curve has flattened, that they will resume normal operations.  For the time being, they are following ASRM guidelines.  But they will also be dealing with backlogs of patients and procedures that may cause further delay in your family building timeline. 

effect of COVID-19 0n LGBTQ family planningFor lesbian couples who have thoughtfully chosen to use a clinic to assist in insemination, this delay is not only frustrating, it can also change the projected timeline of their families.  Even those couples who choose anonymous sperm donors will most likely have to wait an indefinite period of time to undergo AI or IUI procedures.  For those who choose known sperm donors, the essential DNA testing that is a prerequisite for clinic inseminations will also be on a delayed time schedule.

Gay male couples who are considering surrogacy are facing an even more complicated challenge.  First, there will inevitably be a delay in the embryo creation aspect of the beginning of their journey due to IVF clinic shutdowns.  If an intended parent already has embryos created, perhaps from a previous surrogacy journey, they may be in a better position.  However, they will also experience a delay in embryo transfer until restrictions on IVF clinic activities are lifted.  A silver lining is that they will be able to match with surrogates sooner, thereby shortening the time to pregnancy once those IVF restrictions are lifted.

Lesbian couples who choose a known sperm donor and home insemination may be the only group in our community who might not experience the delays discussed above.  However, these types of inseminations will not have the benefit of genetic testing and, for the safety and security of all parties, must have carefully prepared legal agreements in place and a second or stepparent adoption plan incorporated into that agreement.

For those in the midst of a surrogacy journey, perhaps awaiting their carrier to give birth, the effects of COVID-19 on LGBT family planning can be particularly frustrating due to travel and hospital restrictions.  Many hospitals are restricting the number of people who can be in a delivery room, particularly if they have traveled from an area that has been severely affected by COVID-19, like New York, Washington or California.  Be prepared for snags in the road and lots of patience.  You will go home with your child!  You may have to be flexible in your travel plans, i.e. be prepared for long drives instead of air travel.

For lesbian couples and gay men with surrogates who are pregnant, there is a limited study from Wuhan China showing that babies of mothers with the virus were not effected, meaning that there was no vertical transmission.

Couples considering adoptions are also at a bit of a standstill depending on where they live in the US.  Most state court systems have closed to all but “essential” proceedings.  While I would argue that adoptions are essential, the courts have determined that they are not.  I have several cases now awaiting the scheduling of finalization hearings that are simply on hold until the pandemic subsides.  This includes private placement adoptions and step or second parent adoptions.  This does not mean that making connections with birth parents must be put on hold, but the legal work that is required to effectuate the adoption may be delayed, causing additional anxiety.Effect of COIVD-19 on LGBTQ family planning

You may be asking what you can do to mitigate the effects of COVID-19 on LGBTQ family planning.  I know that I am.  Here are a few options that you can consider now.

  1. Make sure that your Estate Plan is in place and up to date. Ask yourself, “Do I need a Will?”  If you have named guardians for children in your Wills, please review to make sure that they are current and correct.  If you have not created an Estate Plan, now is a good time to do the work to ensure that you have prepared for the unexpected.  Here is a list of the documents you should be considering for your estate plan.  We have also seen a relaxation of Notary laws allowing for online notarizations.  This can make the execution of documents much easier in certain states.
  2. If you have been thinking about creating your family, now is a great time to do more research. Men Having Babies is a great resource for surrogacy.  “If These Ovaries Could Talk” is a wonderful podcast for all LGBTQ family planning.  This should include speaking with your friends who have had children to get their perspectives on the process.  It is also a really good time also to start thinking about the financial implications of having a family.  Many of us will be irreparably financially harmed by the COVID-19 pandemic.  Many of us will have to rethink the timelines we had anticipated would apply to our family planning journeys.  You may want to meet with a financial professional to discuss the best way to get your family plan back on track.
  3. Practice self-care! Whether you have children or not, staying calm and finding peace in your heart will help you get through this.  While you might feel alone, you are not alone.  Reach out and find solace in your friends and family if you can.  Take walks if you can and get outside.  Remind yourself of what will be on the other side of this experience.

If you have specific questions about how to address the effects of COVID-19 on LGBTQ family planning and estate planning, and you think I can be of help, please do not hesitate to reach out to me.  Thank you for taking the time to read this and remember to breathe.

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Richard E. Weber, Beloved Lawyer Dies From Coronavirus Complications

Richard E. Weber

Richard E. Weber will be remembered as having brought ‘joy and exuberance’ to everything he did.

We have some unfortunate news today from New York, where an esteemed member of the legal profession passed away due to complications of coronavirus.Richard E. Weber

Richard E. Weber, 57, was a partner at Gallo Vitucci Klar as well as a board member of the LGBT Bar Association of New York. Big Law Business has some additional details on his death:

“Everyone at Gallo Vitucci Klar LLP is heartbroken and devastated by the loss of Richard,” senior partner Howard P. Klar said in an emailed statement. “He was a wonderful attorney and shining light at our firm. Our thoughts right now are with his family.”

Klar said the firm’s Manhattan office has been closed since Weber disclosed his symptoms on March 10. Attorneys and staff have been working remotely and the office was deep cleaned and disinfected. No one else at that office or the firm has had any Covid-19 symptoms or a positive diagnosis, he said.

According to Eric Lesh, executive director of LeGaL, Weber had been hospitalized and tested positive for COVID-19. Three days before Weber died, he have a conversation with Lesh where he “convey[ed] … that this was the sickest he’d ever been and that he was recovering and on the mend.” From the LGBT Bar’s Facebook 

“It is with heavy hearts that we reach out to LeGaL’s members and friends with news of devastating loss of our longtime board member, Richard Weber, to Coronavirus complications.

We cherish Richard’s memory and hold his partner, Antonio, and family in our hearts. Richard gave generously of his time and talents to improve the lives of LGBTQ New Yorkers.”

AboveTheLaw.com, March 20, 2020 by Staci Zaretsky

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The Latest Study on Regulation of Compensated Gestational Surrogacy in New York

compensated gestational surrogacy

The Latest Study on Regulation of Compensated Gestational Surrogacy in New York

The Latest Study on Regulation of Compensated Gestational Surrogacy in New York underscores the need to pass this legislation and shows that it would provide the most comprehensive protections for gestational carriers in the US.compensated gestational surrogacy

This report on the regulation of compensated gestational surrogacy in New York, issued in March 2020 to the New York State Legislature by Weill Cornell Medicine and the Cornell Law School is one of the most comprehensive reports of its kind and leads the reader to now other conclusion but that New York’s pending legislation, The Child Parent Security Act, would be the most protective of gestational carriers, or surrogate mothers, of any piece of legislation in existence in the US.  Surrogacy legislation  can be ethical and comprehensive.

To quote from the article, “The trend among state legislatures in the United States is to permit rather than prohibit compensated gestational surrogacy. Since 2000, fifteen states and the District of Columbia have acted to explicitly permit compensated gestational surrogacy. On the other hand, only four states have taken a prohibitive approach since 2000 and two of those states permit uncompensated gestational surrogacy.”

“In forty-four states there is no prohibition on surrogacy by statute or there is explicit or implicit permission. Even in the six states that have statutes that appear to prohibit surrogacy, courts have granted pre-birth orders to intended parents and have issued other pro-surrogacy decisions. Consequently, surrogacy in varying ways, including by approving pre-birth orders.”

“In sum, the health and medical literature does not weigh in favor of continuing to prohibit gestational surrogacy in New York. There are generally no disparate health outcomes for gestational carriers as compared to non-gestational carriers using assisted reproductive technology (ART) nor are their disparate health impacts on children. Additionally, there are no disparate psychological impacts on gestational carriers as compared to women who have had spontaneously conceived pregnancies. States across the country are moving to legalize and regulate gestational surrogacy in the last decade.”

March 20, 2020 by Cornell Weill Medical Center and Law School 

Click here to read the entire article.

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Why a lack of oversight of surrogacy in Canada leaves some parents feeling taken advantage of

surrogacy in Canada

Surrogacy in Canada: Legal experts say Health Canada’s new rules won’t solve industry’s transparency problems of 

Surrogacy in Canada – Cuddling a child of her own was something cancer survivor Anna Camille Tucci feared might never be possible.surrogacy in Canada

In 2017, the Toronto woman had a full hysterectomy as part of treatment for ovarian cancer — but not before doctors harvested her eggs and created embryos with her husband’s sperm.

“Since I can remember, I wanted kids….That’s just something that was in my heart since I was tiny,” she said. “Even the thought of not being able to carry [a baby] — that was really difficult.”

But in December 2019, the 30-year-old’s dream of being a mom came true. A surrogate gave birth to Tucci’s healthy baby boy.

Motherhood has been “bliss,” Tucci says, yet she can’t shake lingering questions she has about the thousands of dollars she and her husband paid through the surrogacy agency they’d hired to help them navigate the delicate process.

With surrogacy in Canada, it is illegal to pay a surrogate, but it is legal to reimburse her for pregnancy-related expenses such as additional food, clothing, vitamins and any transportation costs she incurs traveling to her medical appointments. In some cases, the transactions are handled using a trust that is set up and managed by a surrogacy agency.

Over the course of a three-month investigation, CBC News spoke with dozens of people involved in surrogacy in Canada, including parents, surrogates and lawyers; their experiences reveal a burgeoning industry in which agencies lack oversight and mandatory transparency.

Five different families raised concerns about money that was paid to surrogates through their trust accounts.

Tucci wanted to know how nearly $2,000 a month was being spent, but the agency’s policy was that receipts aren’t released until after the birth.

In another case, an Ontario father demanded his agency send him his surrogate’s receipts. He found many didn’t have dates, some were duplicates, others were from before he’d met his surrogate, and one had a lottery ticket listed.

“I think people have found a way to pull the parents’ heartstrings,” Tucci said. “I think the industry as a whole — everyone that’s involved in it — I think they’re all there to make money in the end.”

Growing demand for surrogates

The most up-to-date data from Statistics Canada shows roughly one in six couples in Canada experience infertility — a figure that has doubled since the 1980s. Infertility combined with an increase in same-sex couples starting families means the demand for surrogates has boomed.

No public health agency tracks surrogate pregnancies, but data voluntarily provided by Canadian fertility clinics shows at least 816 surrogate births were reported between 2013 and 2017.

Once couples factor in fees for agencies, lawyers and fertility clinics, the cost can quickly reach $100,000 per pregnancy.

Introduced in 2004, Canada’s reproductive legislation was meant to prevent the exploitation of women and the commercialization of surrogacy.

The maximum penalty for paying a surrogate for things that aren’t pregnancy-related is a $500,000 fine and up to 10 years in prison.

Parents shocked by cost of reimbursements

Tucci and her husband selected a surrogate through an agency and paid the company nearly $10,000 in fees for consultation and to manage their surrogate’s monthly reimbursements through a trust fund. They negotiated a legal contract with their surrogate that allowed her to claim expenses up to a maximum of nearly $2,000 a month during the pregnancy.

“We thought she would never actually meet that max that we had in the contract. But we found out that that’s not true,” Tucci said.

The surrogate would submit her receipts to the agency every month. The agency would then review them and reimburse her through the trust fund.

Agency says it is ‘extremely diligent’

The five families who shared their stories with CBC News were clients of the same agency — Canadian Fertility Consulting (CFC).

CFC says it is the largest agency in the country. It has roughly 400 ongoing surrogate-couple relationships and oversees some 300 surrogacy births every year.

Owner Leia Swanberg is the only person who’s ever been charged for paying surrogates in Canada.

RCMP raided Swanberg’s Cobourg, Ont., offices and she was charged in February 2013. Later that year, she pleaded guilty to regulatory offences for paying surrogates without receipts and was fined $60,000.

by CBC.ca, Chris Glover, Chelsea Gomez, Laura Clementson March 2, 2019

Click here to read the entire article.

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Supreme Court to Hear Case on Foster Care and Gay Rights

Foster Care Gay

The justices will consider whether a city may exclude a Catholic adoption agency from its foster care system because it refuses to work with gay couples.

The Supreme Court on Monday agreed to decide whether Philadelphia may exclude a Catholic agency that does not work with same-sex couples from the city’s foster-care system.Foster Care Gay

The city stopped placements with the agency, Catholic Social Services, after a 2018 article in The Philadelphia Inquirer described its policy against placing children with same-sex couples. The agency and several foster parents sued the city, saying the decision violated their First Amendment rights to religious freedom and free speech.

A unanimous three-judge panel of the United States Court of Appeals for the Third Circuit, in Philadelphia, ruled against the agency. The city was entitled to require compliance with its nondiscrimination policies, the count said.

Leslie Cooper, a lawyer with the American Civil Liberties Union, said the Supreme Court’s decision in the case would affect many families.

“This case could have profound consequences for the more than 400,000 children in foster care across the country,” she said. “We already have a severe shortage of foster families willing and able to open their hearts and homes to these children. Allowing foster care agencies to exclude qualified families based on religious requirements that have nothing to do with the ability to care for a child such as their sexual orientation or faith would make it even worse.”

In a Supreme Court brief, the agency agreed that the legal questions before the justices were enormously consequential.

“Here and in cities across the country, religious foster and adoption agencies have repeatedly been forced to close their doors, and many more are under threat,” the brief said. “These questions are unavoidable, they raise issues of great consequence for children and families nationwide, and the problem will only continue to grow until these questions are resolved by this court.”

The case, Fulton v. City of Philadelphia, No. 19-123, is the latest clash between anti-discrimination principles and claims of conscience. It is broadly similar to that of a Colorado baker who refused to create a wedding cake for a same-sex couple.

In 2018, the Supreme Court refused to decide the central issue in that case: whether businesses may claim exemptions from anti-discrimination laws on religious grounds. It ruled instead that the baker had been mistreated by members of the state’s civil rights commission who had expressed hostility toward religion.

The foster care agency relied on the decision, Masterpiece Cakeshop v. Colorado Civil Rights Commission, in arguing that it too had been subjected to hostility based on anti-religious prejudice. It added that its free-speech rights would be violated were it forced to certify that same-sex couples are fit to be foster parents.

The city responded that the agency was not entitled to rewrite government contracts to eliminate anti-discrimination clauses.

“It has never been the case that religious entities, or entities with deeply held secular views, are constitutionally entitled to enter into government contracts and then defy any terms to which they object,” the city’s brief said. If the agency’s “sweeping constitutional claims were accepted,” the brief said, “they would cause mayhem in government contracting.”

NYTimes.com, By Adam Liptak, February 24, 2020

Click here to read the entire article.

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Israeli Supreme Court rules same-sex couples be given access to surrogacy

Israel Supreme Court

In an apparent rebuke to government, the Israeli Supreme Court justices say current law that excludes LGBT couples, harms ‘right to equality’ and gives the state one year to amend the existing legislation; LGBT organizations laud ‘historic decision’

In a unanimous verdict, the Israeli Supreme Court on Thursday ruled that same-sex couples and single men be given access to domestic surrogacy services.Israel Supreme Court

The five-justice panel declared that the current arrangements within the Embryo Carrying Agreements Law disproportionately “harms the right to equality” and the right of parenthood of these groups, and are therefore illegal.
Following a 4 to 1 vote, the court gave the state a maximum of 12 months to amend the current legislation.
Justice Uzi Vogelman wrote in his verdict the current Surrogacy Law inherently discriminates not only against LGBT community but against the concept of fatherhood as well.
“The current arrangement echoes the deep social construct that motherhood is preferable to fatherhood, and that a family made up of a male and female or only a female is much more ‘preferred,’ ‘deserving’ and ‘accepted’ than the more complicated forms [of family],” he wrote.
“This is a harmful message on the part of the administration, disregarding the basic duty of the state to respect all forms of life and all family units.”
 
ynetnews.com, by Yael Friedson, Amir Alon February 27, 2020
 
Click here to read the entire article.

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South Dakota Senate panel narrowly defeats commercial surrogacy ban

South Dakota surrogacy ban

A South Dakota Senate committee on Wednesday narrowly rejected a measure that would have criminalized commercial surrogate pregnancy agents, making it unlikely for such a ban to win approval this year.

The South Dakota Senate Health and Human Services voted down the surrogacy ban bill 4-3 after a debate pitting some families who have used surrogates for pregnancy against critics who argue the practice exploits and endangers women and babies.South Dakota

Sen. Arthur Rusch, a Republican from Vermillion, cast the deciding vote against the legislation after initially moving to approve it and send it on to the full Senate. He called it “one of the most difficult decisions that I’ve made.”

The House had previously passed the bill, which deals with the practice of having a woman being impregnated with an embryo from another couple.

The proposal would have made acting as a surrogacy agent a misdemeanor punishable by up to a year in jail. It would have made South Dakota one of a handful of states to criminalize the practice. Lawmakers said they would be more open to regulating surrogacy rather than passing an outright ban.

Rep. Jon Hansen, the Dell Rapids Republican who introduced the bill, argued that commercial surrogacy makes women and babies vulnerable to commercial contracts.

“Human beings are not property to be bartered for,” he said.

During testimony Wednesday, supporters of the commercial ban pointed to situations in other states where commercial surrogates have had to go to court over disputes arising from the contracts. They argued that commercial surrogacy targets women who are poor and from vulnerable communities.

Jennifer Lahl, an activist against commercial surrogacy from California, said surrogate pregnancies have higher health risks than normal pregnancies and pointed to the deaths of several women who died from complications during a surrogate pregnancy.

The bill also had the support of anti-abortion groups, an influential force in the conservative state. Many surrogacy contracts address “fetal reduction,” in which one fetus may be aborted if a woman has twins or triplets. They argued that the contracts could be used to pressure women into getting an abortion.

Women from a group of families that have had children through surrogacy opposed the bill. They have been frequent visitors to the Capitol as the bill progressed through the Legislature, making their case to lawmakers.

They argued that the bill is based on worst-case scenarios, mostly from other states, and that the commercial contracts protect both the women acting as surrogates and the intended parents.

TheHour.com by Stephen Groves, February 26, 2020

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War Of The New York Surrogacy Bills Erupts

New York surrogacy

New York is lagging behind the rest of the country as one of the few remaining jurisdictions in the United States that does not permit compensated surrogacy.

Things just took a bizarre turn in the New York legislature when it comes to surrogacy. Last week, New York State Senator Liz Kruger (SD-28) introduced S7717. That’s a new bill to legalize compensated surrogacy in New York. Great, right? Well, there’s already a different bill that’s both much further along and also, like, way better than S7717. So what gives?New York surrogacy

As astute readers know, New York is lagging behind the rest of the country as one of the few remaining jurisdictions in the United States that does not permit compensated surrogacy. And while a handful of jurisdictions once also had this legal prohibition, most have reversed course. Fortunately, New York has been looking poised to do the same with the smart, well-drafted Child-Parent Security Act. However, that’s a separate bill — and quite different from S7717.

What’s going on?

Last year, the Child Parent Security Act (CPSA) came very close to passing. But then it didn’t. Instead, it fell victim to the legislative sausage-making process.

After passing the Senate, and having the full and vocal support of Gov. Andrew Cuomo, it was never brought up for a vote on the Assembly floor. So eventually, it died at the end of the 2019 legislative session. It didn’t help that at the last minute, noted feminist icon Gloria Steinem, published an incendiary op-ed against surrogacy.

 

gestational carriersSo incendiary that some people had to do some real soul searching as to whether we were still, in fact, feminists, while Steinem argued that permitting compensated surrogacy was exploitative of women. It was sort of surreal to hear Steinem on the side of having the government tell women what they can and can’t do with their bodies.

However, after all that, this should be the CPSA’s year. Except now comes along S7717, which looks like an attempt to muddy the waters.

The CPSA takes the approach of following the generally accepted standards and best practices concerning surrogacy arrangements, including those recommended by the American Society for Reproductive Medicine (ASRM); S7717, in contrast, takes a very different approach.

To give it some credit, it does seem to provide a clearer path for compensation for “genetic surrogacy” –- where the surrogate is genetically related to the child. However, most surrogacy in the United States is “gestational surrogacy” –- where the surrogate is not genetically related to the child. She is, instead, providing a way to help intended parents, who could not have a genetic child otherwise, bring their child to birth. Here especially, S7717 takes a new and strange direction.

  • Everyone Must Live In New York. S7717 requires all parties to be either a United States citizen or a legal permanent resident and to be residents of New York for the past 12 months. There is an exception if the parties are “immediate” family and there is no compensation. But that’s a very narrow band. Penalizing and disqualifying someone for living across state lines or being a second cousin versus an “immediate” family member is a harsh line to draw. 
  • Random Restrictive Medical Requirements. If that weren’t enough, S7717 requires that a woman wishing to be a surrogate under the proposed law *must* be under 35 years old, and cannot have more than three births. It’s not exactly clear where these numbers came from though, since the ASRM guidelines provide that a woman can be a surrogate up to the age of 45 (ten more years!) and can have five prior births.
  • Impossible(?) Financial Requirements. The bill also requires what would often be impossible requirements. The intended parents would be required to have a life insurance policy in place for the surrogate for a minimum of $750,000, as well as a short-term and long-term disability policy. While maybe obtainable in some cases, and definitely good things to have in place in a perfect world, sometimes it can be very difficult to find such policies. For instance, some disability policies are not readily available to anyone if not provided by an employer, or require at least a year of being in place prior to eligibility for the benefits. So if no policy is available, it’s another no go.
  • Surrogate Can Keep The Child?! OK, the restrictions described above aren’t great. But probably way worse is the bill language providing that the surrogate is permitted to terminate the agreement at *any* time. And that specifically includes any time during the pregnancy. Even though the intended parents would be required to be financially responsible for the child at all times, a surrogate could decide to be a parent to the child.

Consistent with that madness, S7717 provides that hopeful intended parents can only be judicially recognized as the sole legal parents of the child after the surrogate submits a written declaration — no sooner than eight days following the birth of the child — stating that she is voluntarily consenting to disclaim and renounce her parental rights. But until such a waiver is submitted, the surrogate retains decision-making responsibility for the child (but still not financial responsibility). Whoa. That does not sound right.

AboveTheLaw.com by Ellen Trachman, February 19, 2020

Click here to read the entire article.

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Source: Time for Families