Surrogacy Contracts in NY

The couple had their baby in California because if they had her in New York they would be violating New York’s Domestic Relation Laws, which bars commercial surrogacy contracts and equates them with baby-selling. In New York, surrogacy contracts are addressed by Domestic Relations Law, which defines the birth mother as the woman who gives birth to the child, the genetic father as the man who provides sperm for the birth of the child, and genetic mother as the woman who provides an ovum for the birth of a child. Under New York law surrogacy contracts are void and unenforceable.

New York’s law complicates the situation for gay couples, who may not have a family member or close friend willing to be a surrogate. A gay couple would have to work with a surrogate mother from a State that allows surrogacy contracts with compensation. Another problem may also arise if the surrogate lives in a State that does not recognize gay partnerships in any capacity. Because of such laws the birth certificate would only list the biological father. Consequently, the non- biological father would have to sue for adoption if his state allows second-parent adoption. If not then he may have no legal ties to the child.

Fortunately, some New York Courts have recognized parental rights of intended parent in surrogacy situations, regardless of the existence of any surrogacy agreements. For example in McDonald v. McDonald, a woman gave birth to twins after destating an embyo created from her husband’s sperm and a donated egg (608 N.Y.S.2d 477, [App.Div.
1994]). The court still considered the woman, who had no genetic connection to the twins, to be their legal mother. Also,
in Doe v. New York City of Health, the Court did not require the intended mother of triplets to provide DNA evidence in order to gain parental rights after the surrogate mother surrendered her parental rights. (2004 N.Y. Slip Op. 24303 [5 Misc.3d 424]). Although these cases are examples of New York Courts honoring the surrogacy agreement where the surrogate other relinquishes her parental rights over to the couple, there is still the possibility that a surrogate may changer her mind and decide to keep the baby which would pose a real problem for a couple in a New York Court.

The article notes that surrogate baby making has long been a path taken by the affluent and celebrities, because it takes good legal-advise and money to accomplish. However, in recent years it has been growing among gay men, who see having children and building a family as the logical next step after getting married. So, if you are thinking about entering into a surrogacy contract, make sure you know if such contract is legally enforceable in your state, Long Island Attorney Jay D. Raxenberg can provide you with the legal advise you need!