Surrogacy has long been a viable option for heterosexual couples who have health conditions or an inability to conceive, but social perceptions and acceptance of what defines a family have more slowly evolved for members of the LGBT community. Although the process of surrogacy for same-sex couples is much the same as for straight couples, there are significant differences in how jurisdictions treat surrogacy, and laws vary between states and even by county.
Among the ethical concerns are if the surrogacy is traditional, in which the surrogate’s eggs are used, making her the biological mother, or gestational, in which either the egg or sperm of the donor is used for in vitro fertilization before transferal to the surrogate. In addition, there are distinctions between surrogacy for profit, which is commercial, and altruistic surrogacy, involving a simple reimbursement of expenses.
Surrogacy laws in New York
Prior to 2021, surrogacy was illegal in New York, with state laws prohibiting gestational surrogacy and imposing fines on practitioners. With the Child-Parent Security Act (CPSA) signed into law in February of this year, however, compensated gestational surrogacy agreements are legal for intended parents who are residents of New York.
The courts may also grant pre-birth parentage orders which become effective at birth. Both intended same-sex or heterosexual parents may become legal parents if at least one is related to the child, and this also applies to married or unmarried couples. In a surrogacy case, both parents may also be declared legal parents if neither is genetically related to the child.
Deciding which challenge is the right one to take on
Surrogacy is the fulfillment of a dream for many same-sex couples, but the process is not without complications. Creating a family with your life partner is meaningful, and even more so if one of the parents has a biological connection to the child.
Surrogacy can be quite expensive, however, and is a legally and medically complex procedure that can take 18 months or longer. In addition, many couples face discrimination within their communities and even from surrogates or the professionals working with them, which can color how they feel about this goal.
For same-sex couples in Westchester County and surrounding areas who are on the path to creating a family, it is helpful to get information on the legal aspects of surrogacy and parental rights as they embark on this journey together.