This Current New York Law Is Odd by Ellen Trachman

Posted by yslawgroup on May 30, 2018  /   Posted in News & Events

Media & Events

This Current New York Law Is Odd

A proposed law would overturn the 26-year-old prohibition on compensated surrogacy in New York.

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By Ellen Trachman
May 2018

Last Thursday, two New York Assemblymen — Jeffrey Dinowitz and Richard N. Gottfriend — who are the Chairs of the Judiciary and Health Committees, respectively, held a joint public hearing of their Committees. They invited experts to give testimony on a new bill before the New York Assembly, the proposed Child-Parent Security Act (CPSA). Hoping to catch up to the rest of the country, the CPSA would overturn the 26-year-old prohibition on compensated surrogacy in New York. It would also solidify parent-child relationships for children conceived with assisted reproductive technology. These two reforms would give people who need help growing their families a much-needed victory.

Given the growing number of children conceived with the help of egg donation, sperm donation, and/or surrogacy, as well as the growing number of cases with confusion and dispute in the state, this examination was overdue. So let’s hear it for New York.

Clearing Up The Confusion

One of the experts testifying at the hearing on May 24 was Yifat Shaltiel, Esq. Shaltiel is an attorney who specializes in assisted reproductive technology (ART) law, and is Co-Chair of the Reproductive Health Committee for the Women’s Bar Association of New York. Her testimony before the joint Committee meeting was compelling. She described the current New York law as the most “restrictive and punitive” in the country, since it voids all gestational carrier contracts formed in the state, and makes it per se illegal to compensate a woman who agrees to carry a child for another person or couple.

Shaltiel further described how New Yorkers who turn to gamete (egg or sperm) donors — and then use surrogates in other states — frequently have to adopt their own children. Even where one of the parents is genetically related to the child, in certain cases, New York still demands an adoption procedure. Shaltiel argued that this is out of step with the rest of the country, and described how a single man who turns to surrogacy and egg donation to have a child (his own genetic and intended child), must then go through adoption in New York in order to remove the surrogate from the birth certificate.

Adoption is no simple matter. It involves the onerous and expensive burdens of fingerprinting, paying for and coordinating a full home study, and all of the attendant paperwork and legal fees. But without completing an adoption, an intended parent would risk that the surrogate — even one with no initial intent to parent a child, and no genetic connection to a child — would still be recognized as a legal parent. That risk actually presents two problematic scenarios: one where the surrogate asserts parental rights, and one where the surrogate could be stuck being considered a mother to the child she carried.

Assemblywoman Amy Paulin, who is co-sponsor of the bill, emphasized this point by offering a question to Shaltiel on these scenarios involving a single dad with no spouse. “So if the single dad had been married, he would not have to adopt his own child? That seems odd.” Shaltiel responded, “Yes. It is. That is why we need this new law.” Mic drop!

Shaltiel explained after the hearing that by contrast, “in cases of a married couple, the spouse may either do an adoption proceeding or a parentage proceeding, depending on the circumstances, to remove the surrogate from the birth certificate.”

Does This Mean New York’s #1 Sperm Donor is No Longer a Dad?

One person who might be watching this legislative debate unfold is Ari Nagel. I’ve written about Nagel before, because his story briefly captured the national news media’s attention a few years ago. Nagel is the (in)famous Manhattan math professor who has kindly donated his sperm to just about anyone who wanted it to conceive a child. That includes um, transactions, in Target bathrooms, and even sexual intercourse with some hopeful moms to be.

For Nagel’s purposes, the CPSA presents some partially good news. Unlike some states, the CPSA does not include a provision that only donations involving the use of a licensed physician are covered. Instead, the proposed CPSA provides that a person who turns to an egg or sperm donor to conceive a child will be recognized as the parent of their child, without specifying any need to use a doctor. And, more importantly, that the person who donated their genetic material will not be recognized as a legal parent of the child.

So guess what? Those Target sperm transfers are likely covered. But no dice on the sexual intercourse conceptions. Those are expressly carved out by the draft of the statute.

Everybody’s Doing It

As you loyal readers know, reversing anti-surrogacy laws is so hot right now. Last year, the District of Columbia reversed its prohibition on compensated surrogacy arrangements (which even included criminal penalties!) in favor of a supportive statutory framework for such arrangements. Washington State did the same last month. New Jersey looks poised to follow as well. As I wrote about two weeks ago, it looks like Canada is considering taking a similar step.

Of course, the fact that everyone else is doing it isn’t always the best reason to do something. But the expert testimony overwhelmingly supporting the CPSA in New York provided a wealth of good reasons to open up policy in this area. Chief among the reasons, of course, is that laws act in the best interest of a child when they recognize a legal relationship between children and their parents.

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