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This entry was published on 2021-02-19
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SECTION 581-402
Eligibility to enter surrogacy agreement
Family Court Act (FCT) CHAPTER 686, ARTICLE 5-C, PART 4
§ 581-402. Eligibility to enter surrogacy agreement. (a) A person
acting as surrogate shall be eligible to enter into an enforceable
surrogacy agreement under this article if the person acting as surrogate
has met the following requirements at the time the surrogacy agreement
is executed:

(1) the person acting as surrogate is at least twenty-one years of
age;

(2) the person acting as surrogate is a United States citizen or a
lawful permanent resident and, where at least one intended parent is not
a resident of New York state for six months, was a resident of New York
state for at least six months;

(3) the person acting as surrogate has not provided the egg used to
conceive the resulting child;

(4) the person acting as surrogate has completed a medical evaluation
with a health care practitioner relating to the anticipated pregnancy.
Such medical evaluation shall include a screening of the medical history
of the potential surrogate including known health conditions that may
pose risks to the potential surrogate or embryo during pregnancy;

(5) the person acting as surrogate has given informed consent for the
surrogacy after the licensed health care practitioner inform them of the
medical risks of surrogacy including the possibility of multiple births,
risk of medications taken for the surrogacy, risk of pregnancy
complications, psychological and psychosocial risks, and impacts on
their personal lives;

(6) the person acting as surrogate, and the spouse of the person
acting as surrogate, if applicable, have been represented throughout the
contractual process and the duration of the contract and its execution
by independent legal counsel of their own choosing who is licensed to
practice law in the state of New York which shall be paid for by the
intended parent or parents except that a person acting as surrogate who
is receiving no compensation may waive the right to have the intended
parent or parents pay the fee for such legal counsel. Where the intended
parent or parents are paying for the independent legal counsel of the
person acting as surrogate, and the spouse of the person acting as
surrogate, if applicable, a separate retainer agreement shall be
prepared clearly stating that such legal counsel will only represent the
person acting as surrogate and the spouse of the person acting as
surrogate, if applicable, in all matters pertaining to the surrogacy
agreement, that such legal counsel will not offer legal advice to any
other parties to the surrogacy agreement, and that the attorney-client
relationship lies with the person acting as surrogate and the spouse of
the person acting as surrogate, if applicable;

(7) the person acting as surrogate has or the surrogacy agreement
stipulates that the person acting as surrogate will obtain a
comprehensive health insurance policy that takes effect prior to taking
any medication or commencing treatment to further embryo transfer that
covers preconception care, prenatal care, major medical treatments,
hospitalization, and behavioral health care, and the comprehensive
policy has a term that extends throughout the duration of the expected
pregnancy and for twelve months after the birth of the child, a
stillbirth, a miscarriage resulting in termination of pregnancy, or
termination of the pregnancy; the policy shall be paid for, whether
directly or through reimbursement or other means, by the intended parent
or parents on behalf of the person acting as surrogate pursuant to the
surrogacy agreement, except that a person acting as surrogate who is
receiving no compensation may waive the right to have the intended
parent or parents pay for the health insurance policy. The intended
parent or parents shall also pay for or reimburse the person acting as
surrogate for all co-payments, deductibles and any other out-of-pocket
medical costs associated with preconception, pregnancy, childbirth, or
postnatal care, that accrue through twelve months after the birth of the
child, a stillbirth, a miscarriage, or termination of the pregnancy. A
person acting as surrogate who is receiving no compensation may waive
the right to have the intended parent or parents make such payments or
reimbursements;

(8) the surrogacy agreement must provide that the intended parent or
parents shall procure and pay for a life insurance policy for the person
acting as surrogate that takes effect prior to taking any medication or
the commencement of medical procedures to further embryo transfer,
provides a minimum benefit of seven hundred fifty thousand dollars or
the maximum amount the person acting as surrogate qualifies for if less
than seven hundred fifty thousand dollars, and has a term that extends
throughout the duration of the expected pregnancy and for twelve months
after the birth of the child, a stillbirth, a miscarriage resulting in
termination of pregnancy, or termination of the pregnancy, with a
beneficiary or beneficiaries of their choosing. The policy shall be paid
for, whether directly or through reimbursement or other means, by the
intended parent or parents on behalf of the person acting as surrogate
pursuant to the surrogacy agreement, except that a person acting as
surrogate who is receiving no compensation may waive the right to have
the intended parent or parents pay for the life insurance policy; and

(9) the person acting as surrogate meets all other requirements deemed
appropriate by the commissioner of health regarding the health of the
prospective surrogate.

(b) The intended parent or parents shall be eligible to enter into an
enforceable surrogacy agreement under this article if he, she or they
have met the following requirements at the time the surrogacy agreement
was executed:

(1) at least one intended parent is a United States citizen or a
lawful permanent resident and was a resident of New York state for at
least six months;

(2) the intended parent or parents has been represented throughout the
contractual process and the duration of the contract and its execution
by independent legal counsel of his, her or their own choosing who is
licensed to practice law in the state of New York; and

(3) he or she is an adult person who is not in a spousal relationship,
or adult spouses together, or any two adults who are intimate partners
together, except an adult in a spousal relationship is eligible to enter
into an enforceable surrogacy agreement without his or her spouse if:

(i) they are living separate and apart pursuant to a decree or
judgment of separation or pursuant to a written agreement of separation
subscribed by the parties thereto and acknowledged or proved in the form
required to entitle a deed to be recorded; or

(ii) they have been living separate and apart for at least three years
prior to execution of the surrogacy agreement.

(c) where the spouse of an intended parent is not a required party to
the agreement, the spouse is not an intended parent and shall not have
rights or obligations to the child.