The push to legalize surrogacy in New York was successful this year (photo: governor's office)

The New York Legislature passed its own economic stimulus package when it legalized paid gestational surrogacy in the new state budget. Beginning February 2021, legal professionals will have a new income source by helping couples participate in paid gestational surrogacy. In addition, New Yorkers who qualify as surrogates will be able to receive compensation for carrying a child; in California, qualified surrogates with a successful history of taking a child to term can earn $80,000. 

New York went from criminalizing paid gestational surrogacy to enacting the most progressive and comprehensive surrogacy law in the United States. New York is now the only state in the country to have a Surrogate’s Bill of Rights. These are statutory benefits to surrogates that must be provided by the intended parents. For instance, the intended parents are responsible for the cost of the surrogate having her own attorney. The intended parents will be financially responsible for the surrogate’s health insurance premiums during the pregnancy. The surrogate’s health insurance must extend 12 weeks after birth; if there were complications during the pregnancy, the extension of health insurance may be up to 18 weeks. The surrogate would also receive a life insurance policy during the pregnancy paid for by the intended parents and the beneficiary is designated by the surrogate.  

By criminalizing paid gestational surrogacy previously, New York made the choice for all women in the state that they could not participate in this type of surrogacy. However, the legalization of paid gestational surrogacy returned to women in New York the right to make choices regarding their own bodies. As part of the Surrogate’s Bill of Rights, the surrogate maintains control of her own health and body: the surrogate can limit the number of embryos transferred into her body; the surrogate selects her own doctor; and, the surrogate is not required to agree to a cesarean section. Most importantly, the surrogate can terminate the pregnancy at any time and for any reason.    

The financial implications for women who qualify as a surrogate are monumental. In speaking to a legislative aide to an Assembly member, the aide did not believe that legalizing paid gestational surrogacy would be of interest to his boss’ constituents. In the aide’s mind, such a law was really targeted to help couples who could not procreate on their own but who had the financial means to proceed with paid gestational surrogacy. However, paid gestational surrogacy in New York now permits a surrogate to be paid legally for her services. Thus, a healthy woman with limited financial means who meets the health requirements set forth in the statute now has the ability to change her and her family’s financial circumstances. Paid gestational surrogacy can help a woman help herself and her family out of a bad financial predicament and into a better one. This law is a game-changer for many women in New York.  

The legalization of paid gestational surrogacy has provided couples with critical rights as well. Most importantly, upon the birth of the child, the intended parents are immediately recognized as the child’s legal parents. This is critical to same-sex couples utilizing paid gestational surrogacy. The new law further provides that a judgment of parentage may even be issued prior to birth of the child (but only become operative upon the child’s birth). The intended parents become immediately financially responsible for the child. Importantly, the surrogate would have no legal rights to the child. Defining the parties’ roles following the birth of the child is important – especially if emergency medical decisions need to be made regarding the child.   

Those who opposed legalization of paid gestational surrogacy claimed surrogates became “Handmaids,” surrogacy enslaved women, and that surrogacy dehumanized women. However, women have not suffered such fates in the 47 other states where paid gestational surrogacy has been legal. Women in New York will now be fortunate to provide a child to parents who cannot bear their own. It is hard to argue with a law that brings the gift of life.

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Eric Wrubel, Esq., is Chair of the Matrimonial Department of Warshaw Burstein, LLP.