Khan & Yau, PC Reliable & Responsive New York City Attorneys

How can surrogate mothers in New York protect their legal rights?

Surrogacy is a selfless act around which the laws are still evolving. If you are the answer to an LGBT couple's wishes to have a child, you may want to learn about some of your legal rights as a surrogate mother. The most critical of the New York laws is the one that prohibits compensated surrogacy contracts, declaring them not legal in this state. Uncompensated agreements are legal in New York but not enforceable. 

If you are a New York resident and are considering becoming a surrogate, here is how the state laws apply to several important issues:

  1. Birth Mother and Gestational Carrier Arrangement: In New York, the person who carries and gives birth to a child will remain the birth mother. So, even though the child has no genetic connection with you as the surrogate mother, you will have preferred status as the parent of the child -- even if the child is genetically related to one of the intended parents. You and the LGBT couple for whom you carry the baby might want to have some documentation to clarify the arrangement even though it will not be enforceable. You may draft a compassionate Gestational Carrier arrangement, but both you and the intended parents must be clear that it is not a contract but purely a statement of intent. You may not take any steps to give up custody of the child or to relinquish your parental rights prior to the birth of the baby.
  2. Abortion: You may be surprised to learn that intended parents have asked surrogate mothers to abort the babies they carried. Even if there is a clause in the compassionate Gestational Carrier arrangement to abort the fetus under certain circumstances, it will not be enforceable. On the other hand, you will have a legal right to choose to terminate the pregnancy if you experience a medical emergency.
  3. Payment for Surrogacy: In New York, the law states that, as a surrogate, you may only receive reimbursements and payments as allowed under the state's adoption laws. These include payments related to the pregnancy, such as medical and hospital expenses along with coverage of living expenses for the period starting 60 days before the birth until 30 days after the placement of the child. New York laws prohibit all other payments between the surrogate mother and intended parents.
  4. Divorce of Intended Parents: Circumstances change and the LGBT couple for whom you are carrying the child may decide to file for divorce. The question is who will have rights to the child? Laws are still being developed about child custody issues in LGBT divorces. It may depend on whether they divorce before the child is born, or, if not, did both parents legally adopt the child after placement? There may even be a chance that you have some rights to the child if the parents get divorced.

Because New York laws related to surrogacy, LGBT couples, adoption and child custody are ever changing, you may want to have an experienced family law attorney on your side. A lawyer can scrutinize any documents before you sign them, and, because only uncompensated arrangements are legal, your attorney may structure your compassionate Gestational Carrier arrangement carefully to ensure it qualifies as an uncompensated arrangement. Your lawyer can provide support and guidance throughout the pregnancy and beyond to protect your legal rights at all times.

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