Like countless other New Yorkers, I went to school, found my match, got married and then set down to the task of starting a family. Little did I know how much of a task it would actually turn out to be.
Studies have shown that not only do people within the LGBTQ community have obvious roadblocks to having children, but also up to 1 in 8 couples struggle with infertility in some form or another, and have a harder time having children than expected. I found myself to be one of them, so after the emotional and physical roller coaster of infertility and recurrent pregnancy loss, I found my way to an option that most people rarely think about and, before this year, could rarely take advantage of in New York: Gestational Surrogacy.
With the new law, the "Child Parent Security Act" as codified in the Family Court Act (effective February 15, 2021), all that has changed, and New Yorkers like myself and thousands of others looking to build their families now have a way forward, as paid gestational surrogacy has become a legal option.
In 2017, my husband and I utilized IVF and embarked on our journey to become the very proud parents of a little girl through the wonderful act of altruistic (unpaid) gestational surrogacy, having had the great fortune of having a sister who was both willing and able to carry and give birth to our daughter for us. An extraordinary and compassionate act that I assure you we will never be able to repay! As I’m sure you would guess, while some fortunate folks do, most people don’t have a sister, cousin, co-worker or friend to be their surrogate, and so before now, those people have had little options beyond adoption (with its own difficulties, uncertainties, expense and invasiveness) or the option of seeking a surrogate in another state (making it extremely difficult for them to meaningfully participate in medical appointments and pregnancy milestones, or potentially even missing the birth of their child due to distance). And even if New Yorkers did engage in a surrogacy arrangement—even altruistically as in my case—there was no easy path to parenthood in New York. Rather, as we did, intended parents would need to file a petition in court and ask a judge to decide whether or not they could be declared legal parents.
I can tell you that it took nine months for my daughter to be born, and another nine months for us to be declared her legal parents, after going through a slow court process. All the while, my sister was named as her mother on her birth certificate despite my daughter being the 100% genetic child of myself and my husband. During those months, my daughter had no legal right to inherit from us if we had passed, we had no legal right get her medical treatment or to make medical decisions for her without permission from my sister, her “mother”, and no right to get her a passport to travel with us. It was a deeply emotional time. Not ideal.
However, Intended Parents now have amazing opportunities available to them through paid gestational surrogacy. With this new law, New Yorkers can make use of terrific local licensed IVF clinics and physicians to embark on a gestational surrogacy journey close to home, with a New York surrogate who wants to help in their family formation quest. While this new option will not be inexpensive—as intended parents will need to ensure proper insurance is in place, meet many other statutory requirements, and compensate a surrogate for expenses, time, inconvenience, assumption of medical risks, physical discomfort and the responsibilities the surrogate is undertaking—it nevertheless creates the ability to obtain a Judgment of Parentage prior to a child’s birth, thereby eliminating potentially consequential delays and being clearly confirmed as the child’s legal parent.
The New York law was a long-time in the making and while it wasn't available for me and my family when we embarked on our surrogacy journey, it is truly an exciting time for family creation in New York, and I am thrilled for all the new families who will be created out if it!
Contact the Law Office of Jennifer P. Maas, PLLC to discuss your options with a New York licensed family formation attorney.
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**This is intended for informational purposes only and not intended to be construed as legal advice. Every situation is unique and the laws of every state differ. Contact our office should you wish to discuss the specifics of your situation and to hire our firm to represent you.