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New York Surrogacy Law
Author: Terri James
Paul, Weiss, Rifkind, Wharton & Garrison
The following summary of New York law regarding artificial insemination and surrogate parenting contracts does not constitute legal advice and should not be used as a substitute for consultation with a duly-licensed attorney.
Reproductive technologies, such as artificial insemination and in vitro fertilization, have assisted infertile couples in forming the loving bonds associated with children and family. While such couples are now medically capable of having offspring who are biologically related to at least one member of the couple, their attempts to do so may be legally complicated.
New York laws governing the status, rights and obligations of those who conceive children with the assistance of reproductive technologies have not kept pace with medical advances. But, there have been some developments. For example, the legislature has enacted a statute that clarifies the rights of married couples who use artificial insemination procedures. Because these surrogate parenting contracts have been declared void and unenforceable by a recently-enacted New York statute, individuals who enter into such contracts, however, do so at their own risk.
Artificial Insemination
In New York, a child "born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine" is the legal child of both spouses for all purposes -- inheritance, custody, financial support -- provided the couple complies with statutory requirements. First, both spouses must give written consent to the artificial insemination of the wife. This document must then be signed and notarized by the couple. Finally, the physician performing the insemination must provide a certification affirming the physician's performance of the service. Compliance with these requirements establishes the husband as the legal father of the child and terminates the sperm donor's right to claim paternity.
Yet, the statute fails to address the entire range of legal issues that can arise among those who conceive with the assistance of artificial insemination. Reportedly, at least some of the couples who undergo artificial insemination procedures are unaware of the statute and there is no requirement that physicians performing the procedure inform them. The statute is also silent regarding situations where there is only oral, not written, consent, the spouses did not obtain a physician's certification, a physician did not perform the procedure, or the woman is single. In these instances, New York case law governs.
For those married couples who fail to satisfy one or more of the statutory requirements, all is not lost. Over the years, New York courts have adopted a rebuttable presumption that children born to married women are the children of the women's husbands. In addition, a common-sense doctrine known as equitable estoppel may prevent one member of a couple who has agreed to bring a child into the world through artificial insemination and agreed to share the rights and responsibilities of parenthood from later reneging on those promises.
The artificial insemination statute offers no explicit protection for single women. But, a New York court recently ruled that an anonymous sperm donor who has waived his rights to the offspring has forfeited his parental rights, regardless of the inseminated woman's marital status. When single women receive sperm from donors who are not anonymous, the legal implications are numerous and the protections few, as was demonstrated in a case that sparked heated debate. This case involved a lesbian couple that enlisted the assistance of a sperm donor when they decided to start a family. The donor agreed that while he would have no parental rights or obligations, he would meet the child if she ever became curious about her biological origins. The donor met the child on several occasions under terms strictly dictated by the couple. When the couple refused one of the donor's visitation requests, the donor instituted a paternity proceeding. The trial court refused the donor's request based on the equitable estoppel doctrine and the best interests of the child. The sperm donor prevailed, however, on appeal. The appellate court ruled that the donor was the child's biological father and as such he had parental rights that could not be terminated without a formal proceeding.
Surrogate Parenting Contracts
In 1992, New York's legislature declared surrogate parenting contracts void, unenforceable and contrary to public policy. This statute was not passed because of legislative animus against reproductive technology, but because surrogacy contracts have been interpreted to involve, in the words of one New York court, the "trafficking in children." The statute defines surrogate parenting contracts as agreements in which a surrogate agrees to be either impregnated with the fertilized ovum of another woman or artificially inseminated; and further agrees to consent to the adoption of the child born as a result of the impregnation or insemination. Parties to surrogate parenting contracts involving compensation are subject to civil penalties of up to $500. The stiffest penalties -- fines of up to $10,000 and forfeiture of fees received in connection with such contracts -- are leveled against those who arrange compensated surrogacy contracts for profit. Repeat violators of the statute may be charged with a felony. Parties to uncompensated surrogacy contracts are not subject to civil or criminal penalties.
Parties to uncompensated surrogacy contracts, however, cannot have their contracts enforced by New York courts if a dispute arises. Moreover, judicial determinations regarding custody and parental status will be guided by family law, not contract, principles, which are guided by the best interests of the child. This leaves the parties to such contracts with little certainty, which, according to a written statement of former New York governor Mario Cuomo, was the deliberate goal of the New York legislature. Despite the official disdain for surrogacy arrangements, courts have been expressly prohibited from holding a surrogate's participation in a surrogacy arrangement against her in a custody or visitation dispute. The statute does not address the legal thicket presented by in vitro fertilizations involving the implantation of a woman's fertilized ovum in a surrogate. The woman supplying the ovum is the genetic mother and the surrogate is the birth mother; but, which woman is the legal mother? One New York court refused to answer this question when asked to do so by a genetic mother seeking to establish her rights in a "maternity" proceeding. Instead the court stated that this determination was best left to the New York legislature. However, the court's inaction had the effect of making birth mothers, who typically will be listed on the child's birth certificate, legal mothers by default. In 1994 an appellate court, refusing to wait for the legislature, adopted the rationale articulated in a California case and ruled that the legal mother in these situations is the woman "who intended to bring about the birth of a child that she intended to raise as her own." Thus, if the genetic mother is an egg donor with no intention of raising the child, the birth mother is the legal mother. But, if the birth mother is a surrogate whose uterus is implanted with the fertilized ovum of another woman, the genetic mother is the legal mother. To date, the New York Court of Appeals and the legislature have not provided further clarification of this issue.
Copyright 1996. The American Surrogacy Center, Inc.(TASC), Marietta, GA
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