June 18, 2020
By: Carole M. Bass
The Child-Parent Security Act (“CPSA”), signed into law by Governor Cuomo in April and taking effect on February 15, 2021, eliminates New York’s long-time ban on compensated gestational surrogacy and institutes a simple path to establishing parental rights for the many New Yorkers who rely on donated sperm, eggs or embryos to have children.
Uncertainty about parental rights of intended parents and donors who participate in third party reproduction has ramifications in the context of family law and inheritance rights as well as immediate practical concerns such as hospital access and securing proper consent to medical procedures that a newborn may require.
The CPSA resolves this uncertainty by providing clear procedural requirements for obtaining a pre-birth judgment of parentage when utilizing sperm, egg or embryo donation. This process cements the legal relationship between the intended parents and the child from the moment of birth. Because the CPSA is marriage and gender neutral it closes a number of gaps that existed under prior law. A single intended parent conceiving with donor genetic material can obtain a judgment of parentage under the CPSA declaring him or her to be the only legal parent of the child, a process that was not previously available. Two intended parents, whether married or unmarried, different-sex or same-sex, can obtain a judgment of parentage under the CPSA, thereby eliminating the need for costly adoption proceedings.
Prior to passage of the CPSA, New York was only one of three states criminalizing gestational surrogacy (in which the surrogate has no genetic relationship to the child). Under the CPSA gestational surrogacy is legal in New York provided strict statutory requirements are followed.
In an effort to curb disputes arising around cryopreserved embryos remaining after the dissolution of a marriage or non-marital relationship, the CPSA provides a clear means for a couple to address disposition of embryos and to absolve from parental responsibility a party who does not object to his or her former spouse or partner using such embryos. Under the CPSA the parties have joint dispositional control over the embryos, but are able to enter into a written agreement giving all legal rights and control to just one of the parties. The party who gives up control is absolved of parental responsibility for any resulting child and is not considered a legal parent of such child (unless he or she agrees in writing, prior to the embryo transfer, to be a parent).
New Yorkers using assisted reproductive technology, including third party reproduction and gestational surrogacy, should be aware of the broad changes resulting from passage of the CPSA and should take care to clearly document the intention of all parties involved in the process of third party reproduction.