Why Isn’t Surrogacy in New York Legal Yet?

Surrogacy in New York

New York is one of three states that currently prohibit surrogacy directly by statute. You may have heard that the law in New York which criminalizes compensated surrogacy is changing. Perhaps you also heard that there is a new law trying to address this law about surrogacy in New York. The New York surrogacy law is called The Child Parent Security Act (CPSA). This law would not only legalize and regulate compensated surrogacy in New York, but it would provide for New York Courts to issue parentage orders that are often a part of the surrogacy process. What is holding up this law from being passed? 

There was much talk in early 2019 about legalizing surrogacy in New York. So you may be wondering: hasn’t the New York Legislature already voted on the CPSA? In short, no. While the CPSA has broad support in the Governor’s office and in the New York Senate, the Assembly did not bring the Bill up for a vote in June of 2019 when they had the opportunity. Certain Assembly members voiced concerns and asked questions about the legislation, and about surrogacy in general. 

As a reputable and established surrogacy and egg donation agency, we at Circle Surrogacy thought it would be helpful to review the questions around the CPSA, and offer some answers about surrogacy in New York based on our 25-year history of helping people grow their families through surrogacy.

How can you make sure that the women who want to be surrogates really understand the process? How does Circle handle this?

When a woman is interested in applying to be a surrogate in New York (also called a gestational carrier), there are multiple levels of surrogate screenings and support given to surrogate applicants prior to them becoming a surrogate as well as on their journeys.

surrogacy in new yorkPsychological screenings. Prior to being accepted in the surrogate program, surrogates have access to dedicated psychological counselors who not only interview them to ensure they understand the process, but also interview their families to make sure that they understand it as well and can support the surrogate during the process. Every surrogate and her primary support person are screened to ensure they are mentally, physically and emotionally ready for a surrogacy journey.

Medical screenings and evaluations. Every surrogate mother is medically screened by her intended parents’ fertility clinic by an IVF doctor to ensure she is a good candidate physically. The fertility clinic will explain the medical process to her in detail. She also will have her own chosen physician who will monitor her locally to ensure her health and safety during the pregnancy.

Independent legal counsel. At Circle Surrogacy, every surrogate has her own independent legal counsel to explain the surrogacy process to her and to negotiate surrogate contracts on her behalf.  A surrogate’s lawyer must have experience in Assisted Reproductive Law, and be affiliated with one of the few certifying organizations that govern Assisted Reproductive Law.

How can you ensure the safety of women who want to be surrogate mothers?  How does Circle Surrogacy handle this?

Potential surrogates are not only psychologically screened before the process begins, but are provided with mental health professionals to support them during their pregnancies. Circle Surrogacy ensures that both the intended parents and the surrogate have their own independent clinical social worker so that all parties have a dedicated psychological counselor; this enables each party to feel comfortable sharing their feelings about the process.

Circle surrogates have their own physicians, chosen by them, to care for them during the pregnancy and birth. While the IVF clinic will coordinate and perform the egg retrieval and embryo transfer processes, the surrogate’s own doctor monitors the pregnancy throughout its duration.

How can you ensure the safety of women who want to be egg donors? How does Circle Surrogacy address this?

Circle Egg donors must meet egg donor requirements before applying to be an egg donor, and then must go through a psychological screening before donating their eggs; this egg donor protocol helps to educate them on process itself, the medications involved and the emotional aspects of egg donation.

Egg donors are also medically screened prior to the beginning of the process or the administration of any medication so that they understand the possible complications of taking the medications, and of the egg retrieval process as well. By the time egg retrieval takes place, there have been several instances of egg donors’ informed consent.

The CPSA provides for an Egg Donor registry to begin to track data on the well-being and health of egg donors. Circle supports ongoing research into any health risks associated with egg donation.

What kind of relationship do intended parents have with their surrogates?

surrogacy in new yorkWhen we match surrogate mothers and intended parents, one of the matching criteria is the level of communication desired by all parties. The most successful surrogacy journeys are the most supportive and collaborative. The relationship between a surrogate mother and her intended parents is unique to journey, but at Circle Surrogacy, we follow a “relationship-based” model. This means that Circle Surrogacy encourages regular communication and support between the intended parents and the surrogate as a vital part of the process. Weekly video calls, phone calls or texts and in-person visits ensure that each party feels supported and understands the true intention of the process: to help the intended parents have a child.  Most intended parents maintain a relationship with their surrogate after the children are born. 

Does the surrogacy industry have any role in the regulation of compensated surrogacy?

Surrogacy agencies like Circle Surrogacy maintain the highest standards when screening egg donors and surrogates. Those standards are often more stringent than state-based regulations. While the very notion that a for-profit industry is regulating itself may instill doubt in some people’s minds about how successfully they can protect the participants in the process, it must be acknowledged that without the high standards held by agencies such as Circle Surrogacy, agencies would find themselves liable to law suits and penalties due to violation of existing regulations.

Circle Surrogacy’s screening process for surrogates begins with a detailed questionnaire which screens out potential surrogates who do not meet qualifying criteria, such as age, family status, as well as physical and mental health.

Once a surrogate successfully completes the application and initial conversation with Circle Surrogacy, her medical records are reviewed carefully by doctors who focus on their medical history as it pertains to childbirth and general health.

If they pass the medical screening, the surrogate undergoes a rigorous psychological screening which involves all members of her household in order to ensure that everyone understands the process and, particularly, that the surrogate will have the support she needs at home to go through the surrogate pregnancy.

Criminal and financial background checks are also performed on both surrogates and intended parents in order to protect both parties from anyone who may misrepresent themselves.

Is surrogacy really just trafficking children?

While this question may seem outrageous to many, there are some who hold the belief that the children of surrogacy are victims somehow. To them I can only say that families created through surrogacy are vibrant, loving and valid families, just like the majority of families in this world. The children of surrogacy are not victims. They were loved and wanted from even before their conception and, while it may sound cliché, there are no accidental surrogacies. 

What may be more harmful is the stigma to the children and parents of surrogacy that these misconceptions convey. Parents who turn to surrogacy to have their families are not traffickers of women or of children. More importantly, their children through surrogacy are not items to be purchased. Inflammatory responses to reproductive technology suggest an unfamiliarity with the process. Meet a family though surrogacy and there is no way to logically believe this misconception. 

How can I learn more about the surrogacy process? 

While online research will get you started on learning about the surrogacy process, remember that all online sources are not experience or fact-based. And while the media will also portray stories of surrogacy, it’s certainly not an accurate conveyor of true information about surrogacy. You can start by conducting research on a reputable website to access basic and specific information about the surrogacy process, and learn more about how Circle Surrogacy approaches family building through surrogacy.


surrogacy in new yorkAnthony M. Brown is a Parent Outreach Consultant with Circle Surrogacy, dad through gestational surrogacy, and an attorney in New York City with a unique perspective on surrogacy in New York .

Anthony is the founder of Time For Families Law, PLLC and was also the Emeritus Chairman of Men Having Babies, a non-profit organization assisting gay men looking to create families through surrogacy. Anthony enjoys meeting with intended parents and sharing his personal experience with surrogacy.