§ 581-402 — Eligibility to enter surrogacy agreement

§ 581-402. Eligibility to enter surrogacy agreement. (a) A person\nacting as surrogate shall be eligible to enter into an enforceable\nsurrogacy agreement under this article if the person acting as surrogate\nhas met the following requirements at the time the surrogacy agreement\nis executed:\n (1) the person acting as surrogate is at least twenty-one years of\nage;\n (2) the person acting as surrogate: (i) is a United States citizen or\na lawful permanent resident, and (ii) has been a resident of New York\nstate for at least six months if neither intended parent has been a\nresident of New York state for at least six months;\n (3) the person acting as surrogate has not provided the egg used to\nconceive the resulting child;\n (4) the person acting as surrogate has completed a medical evaluation\nwith a health care practitioner relating to the anticipated pregnancy.\nSuch medical evaluation shall include a screening of the medical history\nof the potential surrogate including known health conditions that may\npose risks to the potential surrogate or embryo during pregnancy;\n (5) the person acting as surrogate has given informed consent to\nundergo the medical procedures after the licensed health care\npractitioner has informed them of the medical risks of surrogacy\nincluding the possibility of multiple births, risk of medications taken\nfor the surrogacy, risk of pregnancy complications, psychological and\npsychosocial risks, and impacts on their personal lives;\n (6) the person acting as surrogate, and the spouse of the person\nacting as surrogate, if applicable, have been represented from the\ninitiation of the contractual process and throughout the duration of the\nsurrogacy agreement by independent legal counsel of their own choosing\nwho is licensed to practice law in the state of New York which shall be\npaid for by the intended parent or parents, except that a person acting\nas surrogate who is receiving no compensation may waive the right to\nhave the intended parent or parents pay the fee for such legal counsel.\nWhere the independent legal counsel of the person acting as surrogate,\nand the spouse of the person acting as surrogate, if applicable, is paid\nby the intended parent or parents, a separate retainer agreement shall\nbe prepared clearly stating that such legal counsel will only represent\nthe person acting as surrogate and the spouse of the person acting as\nsurrogate, if applicable, in all matters pertaining to the surrogacy\nagreement, that such legal counsel will not offer legal advice to any\nother parties to the surrogacy agreement, and that the attorney-client\nrelationship lies with the person acting as surrogate and the spouse of\nthe person acting as surrogate, if applicable;\n (7) the person acting as surrogate has or the surrogacy agreement\nstipulates that the person acting as surrogate will obtain a\ncomprehensive health insurance policy that takes effect prior to taking\nany medication or commencing treatment to further embryo transfer that\ncovers preconception care, prenatal care, major medical treatments,\nhospitalization, and behavioral health care, and the comprehensive\npolicy has a term that extends throughout the duration of the expected\npregnancy and for twelve months after the birth of the child, a\nstillbirth, a miscarriage resulting in termination of pregnancy, or\ntermination of the pregnancy; the policy shall be paid for, whether\ndirectly or through reimbursement or other means, by the intended parent\nor parents on behalf of the person acting as surrogate pursuant to the\nsurrogacy agreement, except that a person acting as surrogate who is\nreceiving no compensation may waive the right to have the intended\nparent or parents pay for the health insurance policy. The intended\nparent or parents shall also pay for or reimburse the person acting as\nsurrogate for all co-payments, deductibles and any other out-of-pocket\nmedical costs associated with preconception, pregnancy, childbirth, or\npostnatal care, that accrue through twelve months after the birth of the\nchild, a stillbirth, a miscarriage, or termination of the pregnancy. A\nperson acting as surrogate who is receiving no compensation may waive\nthe right to have the intended parent or parents make such payments or\nreimbursements;\n (8) the surrogacy agreement must provide that the intended parent or\nparents shall procure and pay for a life insurance policy for the person\nacting as surrogate that takes effect prior to taking any medication or\nthe commencement of medical procedures to further embryo transfer,\nprovides a minimum benefit of seven hundred fifty thousand dollars or\nthe maximum amount the person acting as surrogate qualifies for if less\nthan seven hundred fifty thousand dollars, and has a term that extends\nthroughout the duration of the expected pregnancy and for twelve months\nafter the birth of the child, a stillbirth, a miscarriage resulting in\ntermination of pregnancy, or termination of the pregnancy, with a\nbeneficiary or beneficiaries of their choosing. The policy shall be paid\nfor, whether directly or through reimbursement or other means, by the\nintended parent or parents on behalf of the person acting as surrogate\npursuant to the surrogacy agreement, except that a person acting as\nsurrogate who is receiving no compensation may waive the right to have\nthe intended parent or parents pay for the life insurance policy; and\n (9) the person acting as surrogate meets all other requirements deemed\nappropriate by the commissioner of health regarding the health of the\nprospective surrogate.\n (b) The intended parent or parents shall be eligible to enter into an\nenforceable surrogacy agreement under this article if he, she or they\nhave met the following requirements at the time the surrogacy agreement\nwas executed:\n (1) at least one intended parent is:\n (i) a United States citizen or a lawful permanent resident; and\n (ii) has been a resident of New York state for at least six months if\nthe person acting as surrogate has not been a resident of the state of\nNew York for at least six months;\n (2) they have been represented from the initiation of the contractual\nprocess and throughout the duration of the surrogacy agreement by\nindependent legal counsel of his, her or their own choosing who is\nlicensed to practice law in the state of New York; and\n (3) they are an adult person who is not in a spousal relationship, or\nany adults who are spouses together, or any adults who are intimate\npartners together, except an adult in a spousal relationship is eligible\nto enter into an enforceable surrogacy agreement without their spouse\nif:\n (i) they are living separate and apart pursuant to a decree or\njudgment of separation or pursuant to a written agreement of separation\nsubscribed by the parties thereto and acknowledged or proved in the form\nrequired to entitle a deed to be recorded; or\n (ii) they have been living separate and apart for at least three years\nprior to execution of the surrogacy agreement.\n (c) where the spouse of an intended parent is not a required party to\nthe agreement, the spouse is not an intended parent and shall not have\nrights or obligations to the child.\n