State Laws and Legislation

New York Surrogacy Law

Summary: All surrogacy agreements, regardless of the sexual orientation of the individuals involved, are void and unenforceable under New York law.

Explanation: New York case law indicates that surrogacy contracts are contrary to the state’s public policy. In one 1990 case, decided before the statutory ban on surrogacy agreements was passed, a married couple had entered into an extensive contract with a surrogate, including a $10,000.00 “surrogate fee.” A New York Family Court found the surrogate’s commitment to relinquish the child she carried could not be truly voluntary because of the financial inducement. Although the Court went on to find that its conclusion might be altered by a sworn statement by the surrogate that the child’s best interests lie with the contracting couple, this option is probably foreclosed by the subsequent passage of the law voiding surrogacy agreements.

Surrogacy agreements may be void and unenforceable, but that has not prevented New York courts from recognizing the parental rights of intended parents in a surrogacy situation. In a 1994 custody dispute, a New York Appellate Court found that a woman with no genetic connection to her children could still be their legal mother. In that case ( McDonald v. McDonald), a woman gave birth to twins after gestating an embryo that was created from her husband’s sperm and a donated egg. The Court relied heavily on the famous California case of Johnson v. Calvert (see the information on California) to reach their conclusion that the intended mother was the legal mother.

In the 2004 case of Doe v. New York City Bd. of Health, the intended mother of triplets was not required to provide DNA evidence to be granted parental rights after the gestational surrogate (someone who is not genetically related to the child she is carrying) relinquished her parental rights.

Citations: N.Y. DOM. REL. LAW § 122 (2009); In the Matter of the Adoption of Paul, 550 N.Y.S.2d 815 (N.Y. Fam. Ct. 1990); Doe v. New York City Bd. of Health, 782 N.Y.S.2d 180 (N.Y. Sup Ct. 2004); McDonald v. McDonald, 608 N.Y.S.2d 477 (N.Y. App. Div. 1994).

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Updated: Tue, September 08, 2009 - 11:00:33