Effective February 15, 2021, the Child-Parent Security Act (CPSA) has legalized gestational surrogacy in New York. In addition to key legal protections, the CPSA also secures a pathway to Parentage for those who conceive via Assisted Reproduction: Orders of Parentage.

What Parentage Means for Surrogacy Journeys

Parentage is the legal status of being a child’s parent with full parental rights and responsibilities, like making medical decisions or taking the child home from the hospital. When gestational surrogacy is utilized, the Intended Parent(s) must take particular measures to ensure that they—not the Surrogate or any Donor(s)—are exclusively recognized as the child’s legal parent(s). Before the CPSA, Intended Parents often had to rely upon a burdensome, protracted legal adoption process, adding considerable expense to an already costly surrogacy journey.

The Child-Parent Security Act (CPSA) requires that both Intended Parents and Surrogates be represented by independent legal counsel (at the Intended Parents’ expense). All Intended Parents in New York should have an attorney versed in the Child-Parent Security Act (CPSA) to ensure Parentage Proceedings move smoothly. Even so, everyone involved should learn all they can about the legal requirements and process of the CPSA, as well as its benefits. Chief among the CSPA’s benefits is the ability of Intended Parents to petition for Parentage before the child is born.

Legal Requirements for a Successful Petition for Parentage

CPSA requirements are extensive and may appear overwhelming, but it is the task of the attorney(s) to ensure that all requisite materials are timely and complete before filing a petition for Parentage, as well as to certify that all requirements have been met. Principle among these requirements for a Judgment of Parentage include:

• Confirming residency: Either the Surrogate or at least one Intended Parent must have resided in the state for a minimum of six months prior to signing the Surrogacy Agreement.
• Surrogacy Agreement: The petition must provide a copy of the Surrogacy Agreement as well as statements from all parties involved affirming that they knowingly and voluntarily entered into the agreement. This includes not only the Surrogate and the Intended Parent(s), but also the Surrogate’s spouse in some circumstances.
• Attorney Certification: Under the CPSA, both the Intended Parent(s) and the Surrogate (and spouse, if applicable) must be represented by their own legal counsel. Both of these attorneys must certify that the Surrogacy Agreement is fully compliant with the law (i.e., FCT Article 5-C, Part 4).

What Is the Legal Process of Obtaining a Pre-Birth Judgment of Parentage?

In broad strokes, the legal process of obtaining a Pre-birth Parentage Order involves:

1. Drafting, Signing, and Certifying the Compliance of the Surrogacy Agreement

The attorney(s) representing the Surrogate (and spouse, if applicable) and the attorney(s) representing the Intended Parent(s) must ensure that the Surrogacy Agreement complies with the CPSA and certify that fact. Surrogacy agreements are only enforceable if they are fully compliant with NY law.

2. Filing for Parentage

The attorney(s) representing the Intended Parents electronically file a petition for Parentage. This can be done once pregnancy is established, but proceedings usually commence during the second trimester.

3. Order of Parentage Granted

Unlike an Adoption Order, the granting of a Judgment of Parentage is not as discretionary. The CPSA stipulates that “the court shall issue a judgment of parentage” if all requirements are met and adequately documented or certified, without requiring further hearings, forms, or evidence (FCT § 581-203(d)).

4. Notify the Birthing Hospital

After the court issues the Order of Parentage, it must be provided to the hospital where the child will be born. This ensures no gap in Parentage wherein the Surrogate, rather than the Intended Parents, is presumed to hold parental rights and responsibilities.

5. Parental Rights and Responsibilities Assumed

When the Pre-Birth Parentage Order has been issued, and the birthing hospital has been notified ahead of time, the Intended Parents will assume full parental responsibility for their child from the moment of birth.

6. Birth Certificate

After the child is born, the court must be notified. Then, the court will issue the final Parentage Order with the child’s name as it appears on the birth certificate, and the name(s) of the Intended Parent(s) will appear on the birth certificate.

Before Beginning Your Surrogacy Journey in New York

The Child-Parent Security Act (CPSA) has established the country’s first Surrogates’ Bill of Rights, providing key protections not only to surrogates, but also intended parents, donors, and children. While surrogacy is far safer for all involved, it has also become a highly complex legal process. It is critical that all parties involved familiarize themselves with the many legal, financial, and medical steps the CPSA requires, and assemble a knowledgeable and attentive support team.

Learn more about the three pathways to legal parentage available to New York parents in our article here.

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.

As a Partner with Tully Rinckey’s Albany, NY office, Michael Belksy provides representation in matters relating to divorce, parental alienation, separation agreements, annulments, child custody, child support, modifications to child support and child custody, enforcement of divorce decrees, spousal maintenance, pre- and post-nuptial agreements, orders of protection, and family offenses.