There are many ways to start a family. On February 16, 2021, New York State made it easier for New Yorkers to utilize the option of gestational surrogacy to conceive a child by legalizing compensated gestational surrogacy within the Child-Parent Security Act (the “CPSA”). The CPSA gives New York one of the most comprehensive sets of surrogacy laws in the country.
The CPSA provides many advantages to parents seeking to work with a surrogate and for a would-be surrogate:
- It establishes a Surrogate’s Bill of Rights;
- Expedites the process of establishing parental rights after birth; and
- Mandates a Gestational Carrier Agreement (“GCA”) that is at the heart of the law and codifies the rights and responsibilities of the intended parents and of the surrogate.
To summarize the process under the CPSA, the intended parents are matched with a would-be surrogate, typically through a professional agency. After the surrogate is medically cleared, both parties can enter into the GCA. The GCA sets out various terms and typically includes responsibilities and sets the time requirements to obtain an Order of Parentage which is filed at or before the birth of the child. The birth certificate is amended to include the GCA and the Order of Parentage and thereby obviates the need for onerous and more costly adoption proceedings.
For any GCA to be considered valid, the intended parents must execute a last will and testament that contemplates support for the child as well as identifying a guardian for the child should the intended parents become deceased or incapacitated. The will must also name an Executor to carry out the obligations of the intended parents under the GCA. This is an important consideration for any parents, but not a consideration that most would-be parents have before conceiving a child.
The requirement to name a guardian for the child ensures that the child born via surrogacy and under a GCA will be raised by someone selected by their presumptive/natural parents. Further, the Executor of the deceased intended parents is protected because there can be no question that payments made to or on behalf of the surrogate were appropriate. Further, the estate planning requirement protects the gestational surrogate and the resulting child by ensuring that the surrogate is paid and that the obligations of the parent/child relationship are met.
It's important to consult an experienced estate planning attorney when drafting any will, but a will as complex as this should not be written by just any attorney. This article provides some basic information about the NYS gestational surrogacy process. If you are contemplating the use of a gestational carrier, call The Law Offices of Roman Aminov, P.C. at 347-766-2685 to discuss the estate planning requirements imposed on intended parents.
This article is for educational purposes only – to provide you with general information, not to provide specific legal advice. Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed attorney in your state.
