Position Statement – 2015
A.4319 / S.2765
Child Parent Security Act
The New York Child Parent Security Act (The Act) will revolutionize the way legal parentage is determined in New York for children conceived through the medical miracle of Third Party Reproduction.
Advances in reproductive medicine now provide many of those who could not previously conceive a child with the ability to do so. Depending on the cause of infertility, an individual or couple may need the assistance of a surrogate to gestate the child or they may require donated eggs, sperm, or embryos to achieve conception. While the law in most states has evolved to keep pace with these medical advances, that is not the case in New York and the consequences for New Yorkers are profound.
New York State has one of the most restrictive and punitive surrogacy statutes in the country. The New York statute, which was enacted in 1993, renders all surrogacy contracts void and unenforceable. The statute also makes it illegal to pay a surrogate fee. By contrast, the majority of states, by statute or case law, deem surrogacy contracts to be enforceable provided the surrogate does not have a genetic connection to the child. In those states, the Intended Parents (those who are undertaking the medical procedure in order to become parents) are often declared the legal parents of the child before birth and the gestational carrier can be paid for her invaluable contribution.
Gamete and embryo donation are also an important and increasingly common method of conception. The law in most states provides that when someone donates gametes to another for the purpose of conception, the “Donor” should not have the right to later claim a parental interest in the resulting child. The Donor is also protected from any legal obligation to assume parental responsibility for the child. That is not the case in New York. While New York does have an “artificial insemination” statute, that statute cuts off the parental relationship between the Donor and child ONLY when the donation is made to a “husband and wife” under the supervision of a physician. Although the insemination statute can be interpreted in a gender neutral fashion to apply to same sex married couples, the many unmarried couples and single women conceiving through donor insemination are completely overlooked. And while couples conceiving through sperm donation have the ability to sever the legal relationship between the Donor and child through a costly adoption proceeding, a single woman intending to parent alone has no legal mechanism available to do that. Shockingly, there is no statute whatsoever addressing the legal parentage of children conceived through egg or embryo donation. The legal uncertainty which results from the deficiencies in the New York law is clearly a disservice to the many children left unprotected.
While the failure of New York law to keep pace with medical advancements in the arena of gamete donation may result from a lack of awareness as to the need for reform, New York’s anti-surrogacy statute was a direct legislative response to concerns raised by the infamous case of Baby M. which came to the nation’s attention in 1986.
Thirty years later, assisted reproductive technology has evolved and so have the ethical and legal practices surrounding these arrangements. Today, “traditional surrogacy” (where the surrogate provides the egg) is frowned upon in both the legal and medical communities. The case of Baby M. remains an important cautionary tale and professionals involved in surrogacy arrangements impose strict screening procedures to ensure that anyone seeking to act as a gestational carrier has the emotional and financial stability required to ensure success. The American Society for Reproductive Medicine has passed detailed guidelines regulating the surrogacy process which are designed to ensure that the best medical and ethical practices are applied to these arrangements. Today, the typical portrait of a gestational carrier is a woman parenting children of her own, with the intellectual and emotional stability to follow detailed medical instructions and the healthy lifestyle necessary to provide the greatest chance for a successful pregnancy. It is in this context that an ever-growing number of states (either by statute or case law) permit and support surrogacy arrangements.
The proposed Child Parent Security Act would permit enforceable surrogacy contracts provided the carrier is not the genetic mother of the child and provided there is full compliance with all of the safeguards incorporated in the Act. The Act is a comprehensive bill which also addresses the legal status of children conceived through sperm, egg, and embryo donation. Constituency groups, such as the American Fertility Association, Resolve, and the American Society for Reproductive Medicine have been active in their support of the Act.