§ 581-403 — Requirements of surrogacy agreement

§ 581-403. Requirements of surrogacy agreement. A surrogacy agreement\nshall be deemed to have satisfied the requirements of this article and\nbe enforceable if it meets the following requirements:\n (a) it shall be in a record with each signature either notarized or\nwitnessed by two non-parties and signed by:\n (1) each intended parent, and\n (2) the person acting as surrogate, and the spouse of the person\nacting as surrogate, if applicable, unless:\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 (b) it shall be executed prior to the person acting as surrogate\ntaking any medication or the commencement of medical procedures in the\nfurtherance of embryo transfer, provided the person acting as surrogate\nshall have provided informed consent to undergo such medical treatment\nor medical procedures prior to executing the agreement;\n (c) it shall be executed by a person acting as surrogate meeting the\neligibility requirements of subdivision (a) of section 581-402 of this\npart and by the spouse of the person acting as surrogate, if applicable,\nunless the signature of the spouse of the person acting as surrogate is\nnot required as set forth in this section;\n (d) it shall be executed by intended parent or parents who met the\neligibility requirements of subdivision (b) of section 581-402 of this\npart;\n (e) the person acting as surrogate and the spouse of the person acting\nas surrogate, if applicable, and the intended parent or parents shall\nhave been represented from the initiation of the contractual process and\nthe surrogacy agreement states that they shall be represented throughout\nthe duration of the surrogacy agreement by separate, independent legal\ncounsel of their own choosing, who is licensed to practice law in the\nstate of New York;\n (f) if the surrogacy agreement provides for the payment of\ncompensation to the person acting as surrogate, the funds for base\ncompensation and reasonable anticipated additional expenses shall have\nbeen placed in escrow with an independent escrow agent, who consents to\nthe jurisdiction of New York courts for all proceedings related to the\nenforcement of the escrow agreement, prior to the person acting as\nsurrogate commencing any medical procedure other than medical\nevaluations necessary to determine the person acting as surrogate's\neligibility;\n (g) the surrogacy agreement must include information disclosing how\nthe intended parent or parents will cover the medical expenses of the\nperson acting as surrogate and the child. If comprehensive health care\ncoverage is used to cover the medical expenses, the disclosure shall\ninclude a review and summary of the health care policy provisions\nrelated to coverage and exclusions for the person acting as surrogate's\npregnancy; and\n (h) the surrogacy agreement shall include the following information:\n (1) the date, city and state where the surrogacy agreement was\nexecuted;\n (2) the first and last names of and contact information for the\nintended parent or parents and of the person acting as surrogate;\n (3) the first and last names of and contact information for the\npersons from which the gametes originated, if known. The agreement shall\nspecify whether the gametes provided were eggs, sperm, or embryos;\n (4) the name of and contact information for the licensed and\nregistered surrogacy program arranging or facilitating the transactions\ncontemplated by the surrogacy agreement, if any; and\n (5) the name of and contact information for the attorney representing\nthe person acting as surrogate, and the spouse of the person acting as\nsurrogate, if applicable, and the attorney representing the intended\nparent or parents; and\n (i) the surrogacy agreement must comply with all of the following\nterms:\n (1) As to the person acting as surrogate and the spouse of the person\nacting as surrogate, if applicable:\n (i) the person acting as surrogate agrees to undergo embryo transfer\nand attempt to carry and give birth to the child;\n (ii) the person acting as surrogate and the spouse of the person\nacting as surrogate, if applicable, agree to surrender custody of all\nresulting children to the intended parent or parents immediately upon\nbirth;\n (iii) the surrogacy agreement shall include the name of the attorney\nrepresenting the person acting as surrogate and, if applicable, the\nspouse of the person acting as surrogate;\n (iv) the surrogacy agreement must include an acknowledgement by the\nperson acting as surrogate and the spouse of the person acting as\nsurrogate, if applicable, that they have received a copy of the\nSurrogate's Bill of Rights from their legal counsel;\n (v) the surrogacy agreement must permit the person acting as surrogate\nto make all health and welfare decisions regarding themselves and their\npregnancy including but not limited to, whether to consent to a cesarean\nsection or multiple embryo transfer, and notwithstanding any other\nprovisions in this chapter, provisions in the agreement to the contrary\nare void and unenforceable. This article does not diminish the right of\nthe person acting as surrogate to terminate or continue a pregnancy;\n (vi) the surrogacy agreement shall permit the person acting as a\nsurrogate to utilize the services of a health care practitioner of the\nperson's choosing;\n (vii) the surrogacy agreement shall not limit the right of the person\nacting as surrogate to terminate or continue the pregnancy or reduce or\nretain the number of fetuses or embryos the person is carrying;\n (viii) the surrogacy agreement shall provide for the right of the\nperson acting as surrogate, upon request, to obtain counseling to\naddress issues resulting from the person's participation in the\nsurrogacy agreement, including, but not limited to, counseling following\ndelivery. The cost of that counseling shall be paid by the intended\nparent or parents;\n (ix) the surrogacy agreement must include a notice that any\ncompensation received pursuant to the agreement may affect the\neligibility of the person acting as surrogate and the person acting as\nsurrogate's spouse, if applicable, for public benefits or the amount of\nsuch benefits; and\n (x) the surrogacy agreement shall provide that, upon the person acting\nas surrogate's request, the intended parent or parents have or will\nprocure and pay for a disability insurance policy for the person acting\nas surrogate; the person acting as surrogate may designate the\nbeneficiary of the person's choosing.\n (2) As to the intended parent or parents:\n (i) the intended parent or parents shall accept custody of all\nresulting children immediately upon birth regardless of number, gender,\nor mental or physical condition and regardless of whether the embryo or\nembryos was or were transferred due to a laboratory error without\ndiminishing the rights, if any, of anyone claiming to have a superior\nparental interest in the child; and\n (ii) the intended parent or parents shall assume responsibility for\nthe support of all resulting children immediately upon birth; and\n (iii) the surrogacy agreement shall include the name of the attorney\nrepresenting the intended parent or parents; and\n (iv) the surrogacy agreement shall provide that the rights and\nobligations of the intended parent or parents under the surrogacy\nagreement are not assignable; and\n (v) the intended parent or parents shall execute a will, prior to the\nembryo transfer, designating a guardian for all resulting children and\nauthorizing their executor to perform the obligations of the intended\nparent or parents pursuant to the surrogacy agreement, including filing\na proceeding for a judgment of parentage for a child conceived pursuant\nto a surrogacy agreement pursuant to section 581-203 of this article if\nthere is no intended parent living.\n