Legal Surrogacy in New York

Before the Child-Parent Security Act (CPSA) went into effect in 2021, gestational surrogacy was not legal in New York. Now, the CPSA secures a legal pathway for Intended Parents to establish their parental rights and responsibilities for their child, before or after the birth.

What is Parentage?

Parentage is the legal status of being a parent. Legal parental status grants the full rights and responsibilities of legal parenthood. Many parents need not go to court to file for parentage, i.e. those who conceive without assisted reproduction (AR) and intend to remain the child’s parents. For those who do bear a child through AR—especially surrogacy—the process is more complex.

In New York, legal parentage does not always happen automatically when assisted reproduction (AR) is involved. New York law currently recognizes three primary pathways to establish legal parentage in these cases. How a child is conceived determines the path you should take. The CPSA considers:

• Who carried the pregnancy?
• Who are the Intended Parents?
• Are the Intended Parents genetically related to the child?

Paths to Legal Parenthood for Intended Parents in NY

New York state offers three legal means by which parents having a child via assisted reproduction can claim the legal status of parent; they are:

1. Acknowledgment of Parentage
2. Order of Adoption
3. Order of Parentage

These options are not available in all situations, and each presents its own benefits and pitfalls. The best path forward may differ. For most, but not all, surrogacy journeys in New York, a Parentage Order may be most advantageous.

Acknowledgments of Parentage

Acknowledgments of Parentage (AoP) are an administrative process by which the birth parent and another parent may attest to their parentage. The AoP form is relatively simple and free to file. Often, AoP forms are completed at the hospital, shortly after the birth takes place. An attorney is not required, but it is recommended to consult legal counsel before signing.

An AoP carries the force of a court order—unless and until it is vacated—and enables the non-birth parent to be added to the child’s birth certificate. A birth certificate, however, does not confer legal parentage. AoPs may be challenged in court and vacated, making them less secure.

Acknowledgments of Parentage (AoPs) may be an option in cases where assisted reproduction was utilized, and one of the Intended Parents is the birth parent. AoPs are not available to Intended Parents in surrogacy agreements in New York state.

Orders of Adoption

Orders of Adoption are the result of a judicial review and court order, making them a dependable means of securing parentage. Private Adoptions, those privately negotiated between birth parents and Intended Parents, are heavily regulated in New York state. To qualify for a private adoption, parents are expected to undergo a thorough vetting process, including a home study to assess the suitability of the home, interviews with a social worker, and an audit of financial records and personal character references.

Adoptions can be burdensome: financially and personally. Adoption Orders may take months and cannot be filed for until after the child is born. Unlike Acknowledgments of Parentage, however, Adoption Orders are not as susceptible to challenge and are more likely to be recognized both nationally and internationally.

Orders of Adoption are available to Intended Parents bearing a child via surrogacy in New York.

Orders of Parentage

Parentage Orders, also called Judgments of Parentage, are court-issued orders following a formalized, judicial process. This makes them far more legally secure than Acknowledgments of Parentage, which are easier to overturn in comparison. In this respect, Parentage Orders are similar to Adoption Orders. Both confer legal parental status, though Adoption Orders may be more internationally recognizable.

Under the Child-Parent Security Act (CPSA), Intended Parents in surrogacy cases may file for an Order of Parentage before the child is born. Then, there is no gap in Parentage wherein the Surrogate is presumed to be the parent, and the Intended Parents must wait before assuming the full rights and responsibilities of legal parenthood. Intended Parents in Surrogacy Agreements may also file after the child is born.

In either case, the Parentage Order not only affirms the Intended Parents as the legal parents, but may also stipulate that the Surrogate and/or Donor(s) are not legal parents. For the purposes of the CPSA, egg and sperm donors are not legal parents unless otherwise agreed, and gestational carriers are not presumed parents.

Parentage Orders are available for Intended Parents having children via surrogacy in New York, but only if they meet certain eligibility criteria, including residency requirements.

Is a Parentage Order or Adoption Order Right for You?

Some key differences between Parentage Orders and Adoption Orders include:

Adoption Orders…

• Enjoy Full Faith and Credit, guaranteeing recognition of parentage in any state;
• Add Intended Parents to the child’s birth certificate;
• Have an established history across the world which makes them familiar, and thus likely to be recognized, internationally;
• Create a legal parent – child bond where none existed before;
• Do not address the parental rights and responsibilities of donor(s);
• Can only be filed for after the child is born;
• Involve stringent eligibility criteria, and may involve home inspections, background checks, etc.

Parentage Orders…

• Enjoy Full Faith and Credit, guaranteeing recognition of parentage in any state;
• Legally affirm an already existing parent – child bond;
• Add Intended Parents to the child’s birth certificate;
• Parentage Orders may include a court finding that no gamete donors involved are legal parents of the child;
• May be obtained either before or after the child is born; if obtained prior to birth, parentage is effective upon the moment of birth.
• Eligibility requirements minimal compared to adoption, such as being over 18 years of age and a resident of New York for at least six (6) months.

When to Consider an Adoption Order

Though Pre-Birth Parentage Orders offer both security and peace of mind to Intended Parents, there are some cases where Adoption Orders may be the better option. Intended Parents should consider filing for Adoption when…

• The Intended Parents are not residents of NY state, or have lived in NY fewer than six (6) months;
• The child was conceived via sexual intercourse, not IVF;
• The Intended Parents plan to live overseas;
• One or more Intended Parents hold dual citizenship and wish to confer that foreign citizenship to their child.

Planning Your Surrogacy Journey in New York

The Child-Parent Security Act (CPSA) has expanded the options available to those who wish to expand their family. For those considering Surrogacy in New York state, it is highly advised to speak with an attorney to discuss your best path forward.

Tully Rinckey attorneys understand that the surrogacy journey can be a time of joy, but also a complex and taxing process. They will handle your matter with the attention and care it deserves. If you have additional questions about Parentage Proceedings in New York State, our team of attorneys is available to assist you today. Please call 8885294543 to schedule a consultation, or schedule a consultation online.

Nancy Nissen, Esq. is a Partner at Tully Rinckey, PLLC’s office in White Plains, New York, where she primarily focuses her practice on family and matrimonial law, with an additional concentration on labor and employment law. Nancy is a trained mediator approved by the NYS Unified Courts System Office of ADR, mediating disputes in family and matrimonial law. Nancy also has experience in Education Law, assisting prior family law clients in the areas of IEP’s, 504 plans, and dealing with grievances for college students.