With the news today terribly focused on death, it is refreshing to focus on life, if just for a minute. The State of New York, which has been plagued by the horror that is COVID-19, has given us a brief respite from darkness as it has just legalized paid gestational surrogacy. As a result, individuals and couples can enter into agreements with surrogates who will become pregnant and birth babies on their behalf. Commercial gestational surrogacy is when a woman is paid to become pregnant and birth a child to whom she is not biologically related.
This legislation is significant because, prior to its passing, hopeful New York parents were compelled to retain surrogates in other states or countries. This resulted in tremendous cost and difficulty for individuals who would often have to fly to doctor appointments and rely on video conferencing to interface with surrogates, lawyers, and doctors. Considering New York’s general political and legal progressiveness, the ban on surrogacy was confusing, if not disappointing.
The bill, known as the Child-Parent Security Act, was passed as part of the New York State 2020-21 budget. The legislation was proposed years ago by Manhattan State Senator Brad Holyman and Westchester Assembly Member Amy Paulin. New York residents can enter into paid surrogacy contracts beginning February 15, 2021. The new legislation ended a 28-year ban on commercial surrogacy whose law forbade New York state residents from entering into paid surrogacy contracts. Punishments included a fine of up to $10,000 and even felony charges against any individual or agency involved in the surrogacy.
There was opposition to the instant bill as some felt that the surrogates and egg donors were not sufficiently protected. The passed bill does include certain protections for the surrogate, including detailing the surrogate’s right to make her health decisions throughout the pregnancy. The parents in the surrogacy arrangement must pay for the surrogate’s legal counsel and health and life insurance during the pregnancy and for one year following the birth of the child.
The LGBTQ community celebrated the news along with individuals and families who suffer from infertility, including many cancer survivors. Arizona and Michigan remain the two states where surrogacy arrangements are not permitted. In passing the budget, the New York State Assembly also banned hydrofracking, plastic foam containers, and flavored vaping, in addition to enacting other legislation. Also significant during the COVID-19 crisis is the Emergency Disaster Treatment Protection Act, which provides limited immunity for healthcare facilities, administrators, and workers from civil or criminal liability during the COVID-19 epidemic.
Gov. Andrew Cuomo supported the bill, and he was praised for his efforts by many, including several celebrities, including Bravo Network’s Andy Cohen, who fathered a child via a California surrogate and who is currently recovering from COVID-19. Cuomo and the State of New York have given us a glimmer of hope as we continue to pray for and think of those suffering from COVID-19. The late and great Nobel laureate and Holocaust survivor, Elie Weisel, who himself lived unimaginable darkness stated: “Just as despair can come to one only from other human beings, hope, too, can be given to one only by other human beings.” During this epidemic and with the passage of the Child-Parent Security Act, those words eerily ring true. As we physically detach from one another, we also understand that to get through these troubling times and proceed into the future, we need our friends, families, and, for many, our surrogates.
Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.