NY’s Gestational Surrogacy Law Comes with Estate Planning Requirements

April 8, 2021 | Wendy Hoey Sheinberg | Cassandra Rivais DiNova | Trusts & Estates

On February 16, 2021, New York state legalized compensated gestational surrogacy. The Child-Parent Security Act (the Act) imposes estate planning requirements on the intended parents.

Required Estate Planning

Prior to implanting the embryo in the surrogate, the intended parent(s) must sign a will. The will must:

  1. designate a guardian for all children born of the implanted embryo(s), and
  2. specifically name and authorize an executor to perform the obligations of the intended parent(s) under the Gestational Surrogacy Agreement (GSA).

Taken together, these two requirements help to avoid foreseeable legal disputes.

The requirement to designate a guardian identifies the person who will take care of the resulting child in the event the intended parent(s) do not survive. While the designation of a guardian for minors is an important consideration for all parents and parents to be, the designation of a guardian is of heightened importance in gestational surrogacy in light of the traditional presumptions of New York law. Traditionally, under New York law the woman who gives birth to the baby is the presumptive parent and natural guardian of the baby. Now, when a baby is born pursuant to a GSA, the intended parents are the baby’s presumptive parents/natural guardians.

The required inclusion of the specific authorization of the executor to satisfy the GSA further protects the resulting child, the gestational surrogate and the executor. This protects the executor from potential claims that specific payments should or should not have been made. Additionally, the authorization protects the gestational surrogate and the resulting child by ensuring that the intended payments and other obligations are satisfied.

Other Important Changes

New York has also amended the Inheritance by non-marital children section of the Estates, Powers and Trust Law to clarify the inheritance rights of a non-marital child born via gestational surrogacy (“non-marital child”). This is very important for anyone contemplating assisted reproductive technology (ART).

Under the statute, the non-marital child may inherit from a non-gestating parent if the non-gestating parent has signed a written acknowledgment of parentage and the acknowledgment was properly and timely filed. In the absence of an acknowledgment of parentage, parentage can also be established through clear and convincing evidence including but not limited to genetic evidence and open and notorious acknowledgment of parentage.

Another important change relates to children conceived after the death of an intended parent. The statute now clarifies the rights of a child later conceived and hopefully helps to avoid painful litigation for families.

What Should You Do?

Because of the required estate planning all intended parents should advise their estate planning attorneys that they plan to utilize gestational surrogacy. Even if a parent has previously executed a will, a new will must be signed to meet the requirements of the Act and the GSA. Further, each GSA may require the execution of a new will to avoid any question of authority and enforceability.

To ensure that you have an enforceable GSA, it is extremely important that both the intended parent(s) and the gestational surrogate have independent legal representation throughout the process. If you are planning to use a gestational surrogate, do not wait until the last minute to seek representation. It is very important that all aspects of the GSA and the Will be carefully considered.

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