Media & Events

Are You My Mother?

By Yifat Shaltiel, Esq.
August 2, 2013

http://cnyfertility.com/2013/08/02/are-you-my-mother-by-yifat-shaltiel/

Choosing to pursue your dream of building a family through surrogacy can be a long journey.  To ensure a successful journey you will need to seek both good medical care and the assistance of a qualified attorney who specializes in reproductive law.

The first step is to find the right surrogate to build your family. In this regard, the residence of your potential surrogate is crucial.  Surrogacy laws vary greatly from state to state. The differences in these laws affect whether you will be considered the legal parent when your child is born through a surrogacy arrangement. Depending on the applicable state law, you may not always be considered the legal mother of your child, if your child is born from a gestational surrogate, even though you are genetically related to your child. In fact, in some states the law will recognize the surrogate to be the legal mother.

For example, New York State courts will not recognize the intended mother as the legal mother.  This is true even when her own eggs are used and the child born is genetically related to her.  What does this mean?  Well, the gestational surrogate, who is not genetically related to the child, is considered the legal mother. Therefore the biological/intended mother must take legal steps to be recognized as the legal mother, and can only do so with the consent of the gestational surrogate.

What about the father? This can be complicated too.  If your surrogate is in New York and is married, then New York State will recognize the surrogate’s husband as the legal father, leaving the biological/intended father with additional legal steps to ensure that he is recognized as the legal father.

To further complicate matters, New York State has declared that compensating a gestational surrogate is illegal.  So, if your gestational surrogate resides in New York State, you will need to take some precautions and make sure that you do not compensate her for any portion of the surrogacy arrangement. She can only serve as a “compassionate surrogate” who cannot be paid for her services.

The good news is that you can still have a gestational surrogate that resides in New York, but should only proceed with the assistance of legal experts, in order to ensure that your rights will be protected.  More good news is that in many states compensated surrogacy is allowed, and in many of these states the biological parents will be legally recognized.   What does this mean for intended parents who reside in New York? Intended parents may continue to reside in New York, and still proceed with a surrogate who resides outside the state of New York, in a more surrogate friendly state. Of course such arrangements can be best handled in consultation with an attorney who specializes in reproductive law.