Position Statement -2018
Child Parent Security Act
A.6959-A (Paulin) / S.17-A (Hoylman)
The Women’s Bar Association of the State of New York (“WBASNY”) and our 19 chapters across the state strongly support the New York Child Parent Security Act (The Act). Depending on the cause of infertility, an individual or couple may need the assistance of a surrogate to gestate a child or they may require donated eggs, sperm, or embryos to achieve conception. While the law in most states has evolved to keep pace with these medical advances, that is not the case in New York and the consequences for New Yorkers are profound.
The proposed Child Parent Security Act would permit enforceable surrogacy contracts provided the carrier is not the genetic mother of the child and provided there is full compliance with all of the safeguards incorporated in the Act. The Act is a comprehensive bill which also addresses the legal status of children conceived through sperm, egg, and embryo donation. The Act focuses also on intent to parent, as opposed to a biological connection, and allows for non-intimate partners to be recognized as the parents so long as the intent to conceive a child together can be demonstrated.
New York State has one of the most restrictive and punitive surrogacy statutes in the country. The New York statute, which was enacted in 1993, renders all surrogacy contracts void and unenforceable. The statute also makes it illegal to pay a surrogate fee. By contrast, the majority of states, by statute or case law, deem surrogacy contracts to be enforceable provided the surrogate does not have a genetic connection to the child. In those states, the Intended Parents (those who are undertaking the medical procedure in order to become parents) are often declared the legal parents of the child before birth and the gestational carrier can be paid for her invaluable contribution.
Gamete and embryo donation are also an important and increasingly common method of conception. The current New York “artificial insemination” statute is discriminatory. The statute cuts off the parental relationship between the Donor and child ONLY when the donation is made to a “husband and wife” under the supervision of a physician. Although the insemination statute can be interpreted in a gender neutral fashion to apply to same sex married couples, the many unmarried couples and single women conceiving through donor insemination are completely overlooked.
Additionally, while couples conceiving through sperm donation have the ability to sever the legal relationship between the Donor and child through a costly adoption proceeding, a single woman intending to parent does not have any legal recourse to sever the same legal relationship. This creates a clear lack of equality and bias against women who are similarly situated. Shockingly, in New York there is no statute whatsoever addressing the legal parentage of children conceived through egg or embryo donation. The law in most states provides that when someone donates gametes to another for the purpose of conception, the “Donor” does not have the right to later claim a parental interest in the resulting child. In addition, the Donor is also protected from any legal obligation to assume parental responsibility for the child.
Assisted reproductive technology has evolved and so have the ethical and legal practices surrounding these arrangements. Today, “traditional surrogacy” (where the surrogate provides the egg) is frowned upon in both the legal and medical communities. The case of Baby M. remains an important cautionary tale and professionals involved in surrogacy arrangements impose strict screening procedures to ensure that anyone seeking to act as a gestational carrier has the emotional and financial stability required to ensure success. The American Society for Reproductive Medicine has passed detailed guidelines regulating the surrogacy process which are designed to ensure the best medical and ethical practices are applied to these arrangements. Today, the typical portrait of a gestational carrier is a woman parenting children of her own, with the intellectual and emotional stability to follow detailed medical instructions and the healthy lifestyle necessary to provide the greatest chance for a successful pregnancy. It is in this context that an ever-growing number of states (either by statute or case law) permit and support surrogacy arrangements.
As an organization comprised of attorneys and judges across the state in private practice, government, academia and the courts dedicated to the advancement of women in law and society WBASNY supports this bill.