NYS Legalizes Gestational Surrogacy: Changes for Health Care Providers

On February 16, 2021, the Governor enacted the Child-Parent Security Act (“the Act”) through emergency regulations, legalizing compensated gestational surrogacy in New York State.

With gestational surrogacy, a surrogate gestates an embryo for the intended parents. The embryo may contain the genetic material of the intended parents or donor gametes. Traditional surrogacy, where the surrogate uses her own egg, remains illegal.

Prior to the Act, gestational surrogacy was illegal in New York State. The Act modifies the Public Health Law and the Family Law.

The Act establishes a comprehensive framework for gestational surrogacy:

1. Legal criteria for gestational surrogacy agreements (GSAs),
2. Surrogates’ Bill of Rights,
3. A process for adoption for non-biological parents, known as second-parent adoption,
4. Licensure for surrogacy programs,
5. Surrogacy, assisted reproductive technology (ART) service provider, and ova donation registries and
6. Surrogacy screening guidelines.

The Act is intended to provide protections for surrogates and intended parents. All parties must give informed consent to participate in the surrogacy program.

Gestational Surrogacy Agreements

The Act sets forth the required elements of a GSA. At least one of the intended parents or the surrogate must be a United States citizen and have lived in New York State for at least six months. Under the Act, the surrogate and the intended parents must have separate lawyers, who are required to be involved starting with the negotiation of the GSA and throughout its duration.

Surrogacy Screening

In addition to the above, a woman may be eligible to act as a surrogate if she:

1. Is at least 21 years of age,
2. Is a United States citizen or lawful permanent resident,
3. Does not provide the egg,
4. Has completed a medical evaluation by a licensed health practitioner,
5. Has given informed consent after being informed of medical risks, and
6. Has or will obtain comprehensive medical insurance and life insurance policies that take effect prior to taking medication or beginning any embryo transfers.

Unlike other reproductive decisions, the surrogate’s spouse must also provide informed consent unless the couple has lived apart for three years or has lived apart pursuant to an order, judgment or separation agreement. Psychosocial evaluation and counseling for the surrogate (and spouse) is also recommended by the New York Department of Health (DOH). The potential surrogate may be disqualified if she has any high-risk contraindications for pregnancy such as HIV, hepatitis or a substance use or psychosocial disorder. Surrogates have the option of being included in an online registry that can be searched by intended parents and providers.

Surrogacy Program Licensure

A provider must apply for a surrogacy program license through the health commerce system (HCS) in order to facilitate surrogacy arrangements. Surrogacy programs are also known as “matching programs.” There is a $1,000 fee for initial licensure and a $200 fee for renewal. The license must be renewed on an annual basis, and any changes in ownership or any other material change must be reported to the DOH within 30 days.

In addition to the application, a provider must submit:

1. A document establishing the owner and all officers of the program,
2. The program’s administrative policies and procedures,
3. A Conflict of Interest Policy,
4. Proof of professional liability insurance,
5. The program’s informed consent form,
6. Information to be provided to surrogates about the optional surrogacy registry,
7. A background investigation report of the provider’s owners,
8. A credit report of the provider’s owners, and
9. Training material for staff regarding how to comply with the Act.

The program’s policies and procedures must also comply with the Act, particularly when it comes to the surrogacy agreements and informed consent process for all parties.

ART Service Provider Registration

In order to provide any medical procedures under a gestational surrogacy agreement, a health care provider must register as an ART service provider with the DOH. ART service providers do not have any additional fees.  For those already providing these services, they have 120 days to comply with the new Act. ART service providers are bound by the same conflict-of-interest regulations as the surrogacy programs listed above.

As part of the application, health care providers need to furnish:

1. Information demonstrating that the ART service provider is licensed to operate as a tissue bank;
2. Information regarding any other health care practitioner or health care facility licenses held by the ART service provider or the health care practitioners who work for the ART service provider;
3. Information regarding the ART service provider’s HCS account; and
4. The types of procedures, and an estimate of the number of each type of procedure that will be performed annually, to effectuate gestational surrogacy agreements.
5. An ART service provider shall maintain and regularly monitor an account on the HCS.
6. ART service providers shall establish policies and procedures relating to the selection and evaluation of prospective surrogates and the evaluation of prospective intended parents.

Overall, the Act has created a legal framework that providers should be aware of before they enter into these types of arrangements.