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Surrogacy Law in New York
Paid gestational surrogacy is prohibited by statute, and if there is a violation, a criminal penalty may be imposed.
N.Y. Dom. Rel. § 121 (2016)
This section provides definitions such as "birth mother", "genetic father", "genetic mother", "surrogate parenting contract", etc.
N.Y. Dom. Rel. § 122 (2016)
This section states that surrogate parenting contracts are contrary to public policy, and are therefore void and unenforceable.
New York Consolidated Laws
The most up-to-date source for New York statutes.
Click on DOM (Domestic Relations), then Article 8 - (121 - 124) SURROGATE PARENTING CONTRACTS .
Additional Laws to Consider
, 132 Misc. 2d 972 (N.Y. Sur. Ct. 1986).
- Although surrogate parenting was not contemplated when legislature enacted N.Y. Soc. Serv. § 374(6), current legislation does not expressly foreclose use of surrogate mothers or paying of compensation to them under parenting agreements and, as with any contractual arrangement, court will determine whether there has been any overreaching, unfair advantage, fraud, undue influence, or excessive payment; it is for legislature to determine whether statutory provisions should be enacted to allow or disallow such payments and practice of surrogate parenting.
, 146 Misc. 2d 379 (N.Y. Fam. Ct. 1990).
- The court held that under the statutes that govern adoption, along with public policy considerations stemming from case law, the contract in question provided for the sale of a child. Therefore, the court found the surrogacy contract to be void.
- The court also held that "Surrogate motherhood" is not analogous to sperm donation since, unlike a sperm donor, the "surrogate" mother is supplying a life-in-being. Accordingly, only if the surrogate mother swears under oath before the court that she will not receive the $ 10,000 promised to her in exchange for surrender of her child can the court accept such surrender and terminate her parental rights.
., 813 N.Y.S.2d 844 (N.Y. App. Term 2006).
- The appellate court held that pursuant to N.Y. Dom. Rel. Law § 122, surrogate parenting agreements were against the public policy of New York. Therefore, the parties' agreement was void and unenforceable.
, 44 Misc. 3d 297 (N.Y. Fam. Ct. 2014).
- The court held that a surrogacy contract alone, however, will not foreclose an adoption of a child born under it from proceeding. Here, there was no conflict over the children's care and custody; the surrogate mother had intended from the outset to relinquish her parental rights; and the adoption did not require the court to enforce the surrogacy contract, as it was unrelated to the surrogacy agreement itself.
, 45 Misc.3d 574 (N.Y. Sup. Ct. 2014).
- The court held that even though the parties consented in writing that a child conceived by either of them through artificial insemination by an anonymous donor would be accepted as the issue of their marriage, the lack of acknowledgment on the consent form meant the form did not create an irrebuttable presumption that the non-biological spouse was a parent of the child.
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