N.Y. Family Court Act § 581-402: Eligibility to enter surrogacy agreement

§ 581-402. Eligibility to enter surrogacy agreement. (a) A person

acting as surrogate shall be eligible to enter into an enforceable

surrogacy agreement under this article if the person acting as surrogate

has met the following requirements at the time the surrogacy agreement

is executed:

(1) the person acting as surrogate is at least twenty-one years of

age;

(2) the person acting as surrogate: (i) is a United States citizen or

a lawful permanent resident, and (ii) has been a resident of New York

state for at least six months if neither intended parent has been a

resident of New York state for at least six months;

(3) the person acting as surrogate has not provided the egg used to

conceive the resulting child;

(4) the person acting as surrogate has completed a medical evaluation

with a health care practitioner relating to the anticipated pregnancy.

Such medical evaluation shall include a screening of the medical history

of the potential surrogate including known health conditions that may

pose risks to the potential surrogate or embryo during pregnancy;

(5) the person acting as surrogate has given informed consent to

undergo the medical procedures after the licensed health care

practitioner has informed them of the medical risks of surrogacy

including the possibility of multiple births, risk of medications taken

for the surrogacy, risk of pregnancy complications, psychological and

psychosocial risks, and impacts on their personal lives;

(6) the person acting as surrogate, and the spouse of the person

acting as surrogate, if applicable, have been represented from the

initiation of the contractual process and throughout the duration of the

surrogacy agreement by independent legal counsel of their own choosing

who is licensed to practice law in the state of New York which shall be

paid for by the intended parent or parents, except that a person acting

as surrogate who is receiving no compensation may waive the right to

have the intended parent or parents pay the fee for such legal counsel.

Where the independent legal counsel of the person acting as surrogate,

and the spouse of the person acting as surrogate, if applicable, is paid

by the intended parent or parents, a separate retainer agreement shall

be prepared clearly stating that such legal counsel will only represent

the person acting as surrogate and the spouse of the person acting as

surrogate, if applicable, in all matters pertaining to the surrogacy

agreement, that such legal counsel will not offer legal advice to any

other parties to the surrogacy agreement, and that the attorney-client

relationship lies with the person acting as surrogate and the spouse of

the person acting as surrogate, if applicable;

(7) the person acting as surrogate has or the surrogacy agreement

stipulates that the person acting as surrogate will obtain a

comprehensive health insurance policy that takes effect prior to taking

any medication or commencing treatment to further embryo transfer that

covers preconception care, prenatal care, major medical treatments,

hospitalization, and behavioral health care, and the comprehensive

policy has a term that extends throughout the duration of the expected

pregnancy and for twelve months after the birth of the child, a

stillbirth, a miscarriage resulting in termination of pregnancy, or

termination of the pregnancy; the policy shall be paid for, whether

directly or through reimbursement or other means, by the intended parent

or parents on behalf of the person acting as surrogate pursuant to the

surrogacy agreement, except that a person acting as surrogate who is

receiving no compensation may waive the right to have the intended

parent or parents pay for the health insurance policy. The intended

parent or parents shall also pay for or reimburse the person acting as

surrogate for all co-payments, deductibles and any other out-of-pocket

medical costs associated with preconception, pregnancy, childbirth, or

postnatal care, that accrue through twelve months after the birth of the

child, a stillbirth, a miscarriage, or termination of the pregnancy. A

person acting as surrogate who is receiving no compensation may waive

the right to have the intended parent or parents make such payments or

reimbursements;

(8) the surrogacy agreement must provide that the intended parent or

parents shall procure and pay for a life insurance policy for the person

acting as surrogate that takes effect prior to taking any medication or

the commencement of medical procedures to further embryo transfer,

provides a minimum benefit of seven hundred fifty thousand dollars or

the maximum amount the person acting as surrogate qualifies for if less

than seven hundred fifty thousand dollars, and has a term that extends

throughout the duration of the expected pregnancy and for twelve months

after the birth of the child, a stillbirth, a miscarriage resulting in

termination of pregnancy, or termination of the pregnancy, with a

beneficiary or beneficiaries of their choosing. The policy shall be paid

for, whether directly or through reimbursement or other means, by the

intended parent or parents on behalf of the person acting as surrogate

pursuant to the surrogacy agreement, except that a person acting as

surrogate who is receiving no compensation may waive the right to have

the intended parent or parents pay for the life insurance policy; and

(9) the person acting as surrogate meets all other requirements deemed

appropriate by the commissioner of health regarding the health of the

prospective surrogate.

(b) The intended parent or parents shall be eligible to enter into an

enforceable surrogacy agreement under this article if he, she or they

have met the following requirements at the time the surrogacy agreement

was executed:

(1) at least one intended parent is:

(i) a United States citizen or a lawful permanent resident; and

(ii) has been a resident of New York state for at least six months if

the person acting as surrogate has not been a resident of the state of

New York for at least six months;

(2) they have been represented from the initiation of the contractual

process and throughout the duration of the surrogacy agreement by

independent legal counsel of his, her or their own choosing who is

licensed to practice law in the state of New York; and

(3) they are an adult person who is not in a spousal relationship, or

any adults who are spouses together, or any adults who are intimate

partners together, except an adult in a spousal relationship is eligible

to enter into an enforceable surrogacy agreement without their spouse

if:

(i) they are living separate and apart pursuant to a decree or

judgment of separation or pursuant to a written agreement of separation

subscribed by the parties thereto and acknowledged or proved in the form

required to entitle a deed to be recorded; or

(ii) they have been living separate and apart for at least three years

prior to execution of the surrogacy agreement.

(c) where the spouse of an intended parent is not a required party to

the agreement, the spouse is not an intended parent and shall not have

rights or obligations to the child.