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With the passage of the Child-Parent Security Act (“the Act”) on February 16, 2021, New York became the latest state to legalize compensated surrogacy arrangements. However, the Act comes with some stipulations for intended parents, requiring them to put estate planning documents in place specifically naming people to serve in key roles. Those documents must be executed prior to implanting the embryo in the gestational carrier. The new requirements are designed to avoid potential future legal challenges that could arise if an intended parent was to die prematurely.

Specifically, the Act requires intended parents to create a valid Will naming a Guardian who would care for and have physical and legal custody of the child, if the intended parent(s) died while the child was a minor. This provision helps ensure the intended parents’ wishes are honored, rather than the child’s gestational carrier potentially being the presumptive guardian in that situation simply because she gave birth to the child.

The Act also specifies that intended parents’ Wills must name an executor. While this is a standard provision in anyone’s Will, intended parents in NY will need to ensure their Wills specifically authorize their named executors to perform any remaining obligations the intended parents agreed to perform in their Gestational Surrogacy Agreement. This provision protects the child, the gestational carrier, and the executor from legal challenges that could arise if the intended parents were to die before completing their contractual obligations.

Individuals and couples planning on using assisted reproduction in any state or country should work with an experienced surrogacy attorney who can help them ensure agreements and estate documents comply with all applicable laws and regulations, protecting the rights and interests of both the intended parent(s) and their future children born through surrogacy. To learn more, contact The Surrogacy Law Center today.