New York is on the verge of radically changing the way it regulates assisted reproduction and surrogacy. Currently, it is illegal in New York for parents to pay a surrogate to carry a child for them. The Child-Parent Security Act (CPSA), now under consideration by the Legislature and Governor Andrew Cuomo’s Task Force on Life and the Law, would legalize such payments and make surrogacy agreements judicially enforceable. S.2765, 2015-16 Reg. Sess. (N.Y. 2015); A.4319, 2015-16 Reg. Sess. (N.Y. 2015). The CPSA would replace New York’s ban on compensated surrogacy with a regulatory regime more detailed than those of the great majority of states. It would also augment the process for establishing parental rights in New York, especially when assisted reproductive technology is involved.

New York’s Surrogacy Ban

In 1992, then New York Governor Mario Cuomo signed a bill outlawing compensated surrogacy agreements, after the famous New Jersey case In re Baby M, 537 A.2d 1227 (N.J. 1988). There, the birth mother, Mary Beth Whitehead, entered into a “traditional” surrogacy agreement with William and Elizabeth Stern. William provided the sperm and Whitehead provided the egg and womb. In exchange for a payment of $10,000, both agreed that the Sterns would be the child’s parents. After the birth, however, Whitehead refused to surrender the child. The dispute quickly made its way to the New Jersey Supreme Court, which determined that compensated surrogacy agreements were unenforceable as against public policy. The court granted the Sterns legal and physical custody and Whitehead visitation rights.

Changing Views on Surrogacy

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