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Student Project: Surrogacy Research Guide: New York

This research guide explores surrogacy laws in the United States, specifically New York, New Jersey, Florida and California.

Surrogacy Law in New York

Paid gestational surrogacy is prohibited by statute, and if there is a violation, a criminal penalty may be imposed.

Additional Laws to Consider

New York Research Guides

Case Law

In re Baby Girl L.J., 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.

In re Adoption of Paul, 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.

Itskov v. NY Fertility Inst., 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.

Matter of J.J., 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.

Wendy G-M. v. Erin G-M., 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.

Treatises & Practice Guides

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Legislative History