Protecting All Parties in Compensated Gestational Surrogacy Agreements: Adopting The New York State (of Mind) Approach

53 Pages Posted: 6 Oct 2022

See all articles by Kiara Butler

Kiara Butler

Wisconsin Law Review; University of Wisconsin Law School; Cornell University

Date Written: April 6, 2021

Abstract

At least several thousand children are born annually as a result of surrogacy arrangements. In theory, the intended parents and the surrogate negotiate contractual terms and subsequently execute an agreement outlining the respective rights and duties of each party. Ultimately, the intended parents receive the joy of having a child and the surrogate receives monetary compensation for carrying the child. In practice, however, disputes between parties inevitably arise regarding the expected child’s medical care, legal parentage, and surrogate compensation.

For the past thirty years, New York State statutorily banned all surrogacy agreements. Not only were surrogacy agreements void and unenforceable as contrary to public policy, but parties to these agreements faced civil and criminal penalties, including imprisonment. But New York’s law recently—and radically—changed. On February 15, 2021, New York State enacted the Child-Parent Security Act (CPSA), lifting the ban on compensated gestational surrogacy agreements. The CPSA transformed New York into one of the most—if not the most—surrogacy-friendly states. The CPSA codifies novel provisions unlike any other state’s laws: it creates an unalterable Surrogates’ Bill of Rights, it requires licensure for surrogacy agencies, it enumerates eligibility requirements for intended parents and surrogates, and it implements a consent-based standard to establish legal parenthood of surrogacy-born children.

A comprehensive analysis of state surrogacy legislation—namely New York, Michigan, and Wisconsin laws—underscores this Comment’s assertion that the CPSA creates the gold standard approach to protect all parties in compensated gestational surrogacy agreements. Though Michigan and Wisconsin each have distinct surrogacy laws, the legislative effect is the same: both states’ laws exacerbate surrogate exploitation and preclude clear paths to establish legal parentage of surrogacy-born children. By contrast, the CPSA eliminates exploitation by codifying surrogates’ rights and streamlines the process to establish parentage by expanding the traditional definition of “parent.” The CPSA exemplifies model legislation for regulating and enforcing gestational surrogacy agreements; this New York State of mind approach should be adopted nationwide.

Keywords: surrogacy, surrogate, Child-Parent Security Act, CPSA, Wisconsin, New York, Michigan, surrogacy agreement, surrogacy contract, surrogacy arrangement, gestational surrogacy, traditional surrogacy, family law, law, adoption, parenthood, legal parentage, parentage, IVF

JEL Classification: K12, K36, I1, I20, I3, I31, J12, J13, J16, J18, K32, K23

Suggested Citation

Butler, Kiara, Protecting All Parties in Compensated Gestational Surrogacy Agreements: Adopting The New York State (of Mind) Approach (April 6, 2021). 2023 Wis. L. Rev. ___ (Forthcoming 2023), Available at SSRN: https://ssrn.com/abstract=4238039 or http://dx.doi.org/10.2139/ssrn.4238039

Kiara Butler (Contact Author)

Wisconsin Law Review ( email )

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University of Wisconsin Law School ( email )

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Cornell University ( email )

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United States

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