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A look across the pond to surrogacy developments in New York

Posted on 09 April 2021

Surrogacy is increasingly becoming a popular option for the creation of families. However, the laws regulating such arrangements in many countries have struggled to keep up with societal changes, science and fertility treatment.

New York has recently introduced new surrogacy laws, which legalise commercial gestational surrogacy, provide for pre-birth orders whilst seeking to protect the welfare of surrogates. Prior to the law's enactment, the practice was illegal in New York and gestational surrogacy agreements were not considered legally binding.

Following the Law Commission's Consultation Paper (Surrogacy | Law Commission) published in 2019, which made initial proposals regarding surrogacy reform in the UK, and in anticipation of the Law Commission's final proposals in 2022, we look to the recently introduced changes in New York.

What has happened in New York?

On 15 February 2021, the Child-Parent Security Act took effect and legalised commercial gestational surrogacy (meaning that the surrogate's eggs are not used for conception) in New York State.  However, traditional surrogacy (meaning that the surrogate's eggs are used for conception) continues to be prohibited. The law provides safeguards for both surrogates and intended parents. 

For intended parents, increased reassurance is now possible as result of the recognition of pre-birth orders. If a valid surrogacy arrangement is entered into between the surrogate and intended parents (meeting the strict statutory criteria), the intended parents will be legally recognised as the child's parents from birth rather than the surrogate. For a surrogacy arrangement to be valid in New York, it must:-

  • Be signed by all participants before the surrogate takes any medication or commences any medical procedures in advance of the embryo transfer;
  • Ensure the surrogate has the right to make all health and welfare decisions regarding herself and her pregnancy;
  • Ensure the surrogate has the right to utilise the services of a healthcare practitioner of her own choosing;
  • Ensure the surrogate has the right to terminate, reduce or continue the pregnancy; and
  • Ensure the surrogate has the right to request counseling to be paid for by the intended parents.

In addition:

  • The parties have the right to terminate the agreement any time before the surrogate achieves a pregnancy;
  • The surrogate must give fully informed consent;
  • All parties must have independent legal representation in negotiating the contract; and
  • A comprehensive health insurance policy must be in place prior to any treatment commencing.

Unfortunately, there are still some limitations. At present at least one intended parent must:-

  • Be a United States citizen or a lawful permanent resident; and
  • Have been a New York State resident for at least six months.

By contrast, California, widely known as the USA's leading state for surrogacy, permits intended parents from around the globe to benefit from its advanced surrogacy laws, including the possibility of obtaining pre-birth orders. However, importantly from an English perspective, even if those intended parents secure a Californian pre-birth order for them to obtain recognition as legal parents in England, the intended parents must still apply for a parental order from the English Courts.

How is this relevant to England and Wales?

Whilst the new laws in New York are of little direct benefit to those seeking surrogacy in England and Wales (other than those that have a connection with New York as detailed above), they represent a shift in attitudes and an interesting comparison in light of the Law Commission's proposals for surrogacy reform in the UK. The Law Commission's final report will provide recommendations to the UK Government on how to update existing surrogacy legislation, in respect to which there have been consistent calls for reform.

One key proposal outlined in the Consultation Paper relates to establishing a clear legal pathway to legal parenthood to reflect all parties' shared intentions and expectations.

As English law currently stands, the surrogate will always be the legal mother. The identity of the second legal parent will depend upon whether the surrogate is married and where conception takes place. If the surrogate is married, her spouse / civil partner is the second legal parent, unless they did not consent to the surrogate's treatment. If the surrogate is unmarried and conception took place at a licenced fertility clinic, then one of the intended parents can be the other legal parent at birth. 

Surrogacy agreements are unenforceable in the UK. As such, those entering into such agreements rely on one another to honour the terms of the agreement. It is also illegal for a third party (including a solicitor) to negotiate a surrogacy agreement for any remuneration. The Consultation Paper notes that a written agreement between the surrogate and the intended parents should be a key element of the new proposal (subject to safeguarding criteria) however, the agreement itself would not confer legal parenthood.   

The Law Commission has initially proposed that intended parents should obtain legal parenthood and in turn, parental responsibility, automatically upon the child's birth, subject to the surrogate's right to object during a defined period. However, the Law Commission does not consider the new pathway should apply to international surrogacy arrangements. In comparison to New York, the provisional proposals would apply to gestational and traditional surrogacy arrangements however, the regulation of traditional surrogacy arrangements outside a UK licensed clinic are subject to further consideration.

The New York legislation has introduced pre-birth orders to streamline the process and increase certainty.  The granting of a pre-birth order means the intended parents are recognised as the child's legal parents at birth. The success of the system in New York will be a useful comparator for the Law Commission in advance of its final report.

A further area outlined in the Consultation Paper is the need to introduce specific regulatory safeguards for surrogates. The proposals include pre-conception safeguards to protect the interests of all parties to a surrogacy arrangement, including matching them through a regulated surrogacy organisation or licensed clinic, medical checks and enhanced criminal records checks. This is similar to the provisions introduced in New York; surrogacy experts around the globe will be assessing whether New York's safeguards go far enough.

Surrogacy in the United States

As above, California is one of the leading jurisdictions for international commercial surrogacy arrangements. California makes use of pre-birth orders to secure the intended parents' legal status in relation to the child prior to the birth. Further, due to advanced establishment and regulation of clinics and agencies, many intended parents find it easier to locate a surrogate in California compared to other jurisdictions. 

Conversely, states such as Michigan prohibit surrogacy arrangements entirely and, there is a criminal penalty for compensated surrogacy.  Further, Louisiana only permits altruistic surrogacy.

Surrogacy laws and welfare protections differ enormously between countries. Whilst the Law Commission's new pathway is not intended to apply in international arrangements, it has provisionally proposed that parental status or orders resulting from surrogacy arrangements overseas should be capable of automatic recognition in the UK. This is provided that the jurisdiction in which the arrangements have taken place is officially recognised by the UK Government as a jurisdiction for which such recognition is afforded.

Conclusion

Given the restrictive nature of surrogacy laws previously in New York, the recent changes are a significant step forward for New York. There will now be much focus on New York to consider how the new legislation is being implemented and what this could mean for law reform in the UK.

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