N.Y. Family Court Act § 581-403: Requirements of surrogacy agreement

§ 581-403. Requirements of surrogacy agreement. A surrogacy agreement

shall be deemed to have satisfied the requirements of this article and

be enforceable if it meets the following requirements:

(a) it shall be in a record with each signature either notarized or

witnessed by two non-parties and signed by:

(1) each intended parent, and

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

acting as surrogate, if applicable, unless:

(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;

(b) it shall be executed prior to the person acting as surrogate

taking any medication or the commencement of medical procedures in the

furtherance of embryo transfer, provided the person acting as surrogate

shall have provided informed consent to undergo such medical treatment

or medical procedures prior to executing the agreement;

(c) it shall be executed by a person acting as surrogate meeting the

eligibility requirements of subdivision (a) of section 581-402 of this

part and by the spouse of the person acting as surrogate, if applicable,

unless the signature of the spouse of the person acting as surrogate is

not required as set forth in this section;

(d) it shall be executed by intended parent or parents who met the

eligibility requirements of subdivision (b) of section 581-402 of this

part;

(e) the person acting as surrogate and the spouse of the person acting

as surrogate, if applicable, and the intended parent or parents shall

have been represented from the initiation of the contractual process and

the surrogacy agreement states that they shall be represented throughout

the duration of the surrogacy agreement by separate, independent legal

counsel of their own choosing, who is licensed to practice law in the

state of New York;

(f) if the surrogacy agreement provides for the payment of

compensation to the person acting as surrogate, the funds for base

compensation and reasonable anticipated additional expenses shall have

been placed in escrow with an independent escrow agent, who consents to

the jurisdiction of New York courts for all proceedings related to the

enforcement of the escrow agreement, prior to the person acting as

surrogate commencing any medical procedure other than medical

evaluations necessary to determine the person acting as surrogate's

eligibility;

(g) the surrogacy agreement must include information disclosing how

the intended parent or parents will cover the medical expenses of the

person acting as surrogate and the child. If comprehensive health care

coverage is used to cover the medical expenses, the disclosure shall

include a review and summary of the health care policy provisions

related to coverage and exclusions for the person acting as surrogate's

pregnancy; and

(h) the surrogacy agreement shall include the following information:

(1) the date, city and state where the surrogacy agreement was

executed;

(2) the first and last names of and contact information for the

intended parent or parents and of the person acting as surrogate;

(3) the first and last names of and contact information for the

persons from which the gametes originated, if known. The agreement shall

specify whether the gametes provided were eggs, sperm, or embryos;

(4) the name of and contact information for the licensed and

registered surrogacy program arranging or facilitating the transactions

contemplated by the surrogacy agreement, if any; and

(5) the name of and contact information for the attorney representing

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

surrogate, if applicable, and the attorney representing the intended

parent or parents; and

(i) the surrogacy agreement must comply with all of the following

terms:

(1) As to the person acting as surrogate and the spouse of the person

acting as surrogate, if applicable:

(i) the person acting as surrogate agrees to undergo embryo transfer

and attempt to carry and give birth to the child;

(ii) the person acting as surrogate and the spouse of the person

acting as surrogate, if applicable, agree to surrender custody of all

resulting children to the intended parent or parents immediately upon

birth;

(iii) the surrogacy agreement shall include the name of the attorney

representing the person acting as surrogate and, if applicable, the

spouse of the person acting as surrogate;

(iv) the surrogacy agreement must include an acknowledgement by the

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

surrogate, if applicable, that they have received a copy of the

Surrogate's Bill of Rights from their legal counsel;

(v) the surrogacy agreement must permit the person acting as surrogate

to make all health and welfare decisions regarding themselves and their

pregnancy including but not limited to, whether to consent to a cesarean

section or multiple embryo transfer, and notwithstanding any other

provisions in this chapter, provisions in the agreement to the contrary

are void and unenforceable. This article does not diminish the right of

the person acting as surrogate to terminate or continue a pregnancy;

(vi) the surrogacy agreement shall permit the person acting as a

surrogate to utilize the services of a health care practitioner of the

person's choosing;

(vii) the surrogacy agreement shall not limit the right of the person

acting as surrogate to terminate or continue the pregnancy or reduce or

retain the number of fetuses or embryos the person is carrying;

(viii) the surrogacy agreement shall provide for the right of the

person acting as surrogate, upon request, to obtain counseling to

address issues resulting from the person's participation in the

surrogacy agreement, including, but not limited to, counseling following

delivery. The cost of that counseling shall be paid by the intended

parent or parents;

(ix) the surrogacy agreement must include a notice that any

compensation received pursuant to the agreement may affect the

eligibility of the person acting as surrogate and the person acting as

surrogate's spouse, if applicable, for public benefits or the amount of

such benefits; and

(x) the surrogacy agreement shall provide that, upon the person acting

as surrogate's request, the intended parent or parents have or will

procure and pay for a disability insurance policy for the person acting

as surrogate; the person acting as surrogate may designate the

beneficiary of the person's choosing.

(2) As to the intended parent or parents:

(i) the intended parent or parents shall accept custody of all

resulting children immediately upon birth regardless of number, gender,

or mental or physical condition and regardless of whether the embryo or

embryos was or were transferred due to a laboratory error without

diminishing the rights, if any, of anyone claiming to have a superior

parental interest in the child; and

(ii) the intended parent or parents shall assume responsibility for

the support of all resulting children immediately upon birth; and

(iii) the surrogacy agreement shall include the name of the attorney

representing the intended parent or parents; and

(iv) the surrogacy agreement shall provide that the rights and

obligations of the intended parent or parents under the surrogacy

agreement are not assignable; and

(v) the intended parent or parents shall execute a will, prior to the

embryo transfer, designating a guardian for all resulting children and

authorizing their executor to perform the obligations of the intended

parent or parents pursuant to the surrogacy agreement, including filing

a proceeding for a judgment of parentage for a child conceived pursuant

to a surrogacy agreement pursuant to section 581-203 of this article if

there is no intended parent living.