The Gestational Surrogacy Law is now in effect as of Feb. 15, according to an announcement from Gov. Andrew Cuomo, legalizing the practice after 28 years.
Gestational surrogacy is when an embryo is created by in vitro fertilization, where an egg is fertilized by sperm in a test tube or outside the body, and is implanted in a paid surrogate who will then deliver the baby. According to the press release, the law officially legalizes gestational surrogacy in New York and will offer aid to LGBTQIA+ couples who are looking to start a family.
“For far too long, LGBTQ+ New Yorkers and New Yorkers struggling with fertility were denied the opportunity to start a family because of arbitrary and archaic laws and I couldn’t be prouder of the way New York came together to say we won’t stand for this any longer,” Cuomo said in the press release.
Before the law was passed, gestational surrogacy was legal or not explicitly prohibited in every U.S. state besides New York, Louisiana and Michigan.
According to NBC News, New York’s previous long-standing ban of surrogacy stemmed from a New Jersey Supreme Court case, known as the Baby M case. In the ‘80s a surrogate named Mary Beth Whitehead agreed to carry a child for William and Elizabeth Stern for $10,000. Whitehead was artificially inseminated, making her and William Stern the biological parents.
A week after the child was born, Whitehead expressed to the couple that she wanted the baby back and refused to sign away her parental rights, leading to a long custody battle.
New Jersey ruled that the surrogacy contract was illegal and granted Whitehead custody, allowing her to seek visitation rights with the child.
After the court case was ruled in 1988, New York then banned gestational surrogacy in 1992. However, New Jersey made gestational surrogacy legal once again on May 30, 2018.
This ban on gestational surrogacy created problems for couples who had fertility issues and LGBTQIA+ couples.
New York State Sen. Brad Hoylman told ABC News that he and his husband had to make cross-country trips to California to have their two daughters via surrogacy arrangements.
“My husband and I had our two daughters through surrogacy — but we had to travel 3,000 miles to do it because our home state had banned the practice. Thanks to the Child-Parent Security Act, gestational surrogacy is finally legal in New York State, giving LGBTQ couples and people experiencing infertility the opportunity to build a family through surrogacy here at home,” Hoylman said in the press release. “This legislation sets a new gold standard for surrogacy, providing women acting as surrogates with the strongest legal and health protections in the nation while also protecting intended parents and egg donors.”
The state’s law establishes criteria for surrogacy agreements, creates a Surrogates’ Bill of Rights which grants the surrogate “unfettered” rights to make their own healthcare decisions — including whether to carry the baby to term or to terminate the pregnancy — and creates a streamlined process to establish parenthood for a non-biological parent, which in particular helps LGBTIA+ couples.
All parties will now have informed consent in the surrogacy process and surrogates will have comprehensive health insurance and independent legal counsel, paid for by the intended parents.