Surrogacy, Adoption & Assisted Reproduction Lawyers in New York

In gestational surrogacy, the gestational carrier is artificially impregnated with an embryo, conceived in vitro using the sperm and/or egg of an intended parent and/or donor. Even though the surrogate carries the child in her uterus, it is not conceived of her egg.

Gestational surrogacy is often chosen by persons suffering from infertility or inability to carry a pregnancy to term, same-sex couples, single parents, and parents who prefer that their child not be genetically linked to the surrogate.

Gestational surrogacy laws are generally simpler than those governing traditional surrogacy because the surrogate can waive all parental rights by agreement prior to the pregnancy and the intended parents can be recognized as the child's legal parents without adoption. However, the process becomes complicated with the addition of contracts with the surrogate, surrogacy agency, fertility clinic, and any other service involved. The entailed fees also make gestational surrogacy a costly process.

Gestational carrier agreements differ greatly from one another depending on a multitude of factors, but they should always be properly structured to ensure compliance with all relevant laws and statutes.

Assisted reproduction is used to aid with male or female infertility. It involves artificially fertilizing an egg with sperm to produce an embryo, which is then placed in a uterus. The most common method is in vitro fertilization (IVF). The process may also involve donor eggs, donor sperm, and donor or previously frozen embryos, as well as a surrogate or gestational carrier (see above).

ART is often chosen by persons suffering from infertility, single parents, and same-sex couples. Whatever the procedure, proper planning and drafting of agreements is essential.

ART law is complex, often involving multiparty or several separate contracts, depending on circumstances. They should detail the rights and obligations of all parties involved, including ovum, sperm, or embryo donor and/or bank or agency; fertility clinic or other ART service; and surrogate or gestational carrier.

These agreements ensure parental rights for the intended parents, donor and surrogate rights, future contact and/or medical information, compensation, confidentiality, liability, funding, insurance coverage, taxation, and other legal and logistical issues.

There are several different kinds of adoption procedures, some done even when there’s a biological connection between the child and one of the adoptive parents. Please note that at this time we do not handle interstate or international adoptions.

Traditional adoption involves the biological parents of a child relinquishing their parental rights, which are then assumed by the adoptive parent(s). While the birth parents must execute a written consent, they retain the right to change their minds and keep the child at any stage of the pregnancy, and in the State of New York generally up to 30–45 days from birth. Birth parents’ rights may also be terminated by the court.

Stepparent adoption (also called second-parent adoption or co-parent adoption) involves a child being adopted by the spouse or partner of their biological parent, creating a legal relationship with the child. The other biological parent’s rights are either voluntarily surrendered or terminated by the court.

In the case of traditional surrogacy in New York State (where the surrogate’s own egg is used), adoption is necessary for the nonbiological parent to be considered the child’s legal parent and included on the child’s birth certificate. The surrogate mother must relinquish parental rights, which she can only legally do after the child is born.

In the case of gestational surrogacy in New York State (where the surrogate carries an embryo not her own), if an unknown sperm or egg donor is used both the biological parent and their spouse or partner may be considered the child’s legal parents through a pre-birth order and included on the birth certificate.

Adult adoption involves the adoption of a person over the age of 18 for the purpose of legally establishing a parent-child relationship. This bestows legal rights, including those of inheritance, on the parties. Adult adoption is common in cases of a longstanding stepparent relationship.

Given the wide range of circumstances and complex laws governing adoption procedures, proper planning and drafting of agreements is essential.

For LGBTQ couples, starting a family through surrogacy, adoption, or assisted reproduction can be more challenging and often requires additional legal considerations.

These may include marriage, prenuptial agreements, spousal or domestic partner rights, establishing parentage, name changes, guardianship, wills, living wills, healthcare proxies, powers of attorney, and property co-owner agreements. In cases of traditional surrogacy, adoption is also required by one or both of the prospective parents.

LGBTQ couples may also face discrimination prior to, during, or after becoming parents. This may be for any reason, by any private, public, or government entity, including insurance, adoption, or surrogate agency; sperm, ovum, or embryo bank; hospital or clinic; workplace; landlord or realtor; even daycare or school.

Vishnick McGovern Milizio established its dedicated LGBTQ Representation Practice 15 years ago, one of the first in the U.S., and has been pioneering LGBTQ rights in New York and New Jersey ever since.

Widely regarded, the practice partners were named the LI Herald “2019 Top Lawyers of Long Island” in two categories, Civil Rights and Pro Bono, and New York Law Journal "Top Rated Lawyers 2020." Head of the practice, Joseph Milizio, serves as the co-chair of the Nassau County Bar Association LGBTQ Committee and on the Human Rights Campaign (HRC) National Board of Governors.

Name changes are not uncommon in cases of adoption, surrogacy, or assisted reproduction. The prospective parents may wish to change the legal name of an adopted child, though more commonly same-sex couples prefer to either share the same surname or hyphenate their surnames to signify their family relationship.

In addition to legal aspects, surrogacy, adoption, and assisted reproduction are logistically complex and costly procedures. They require proper planning, drafting and reviewing of documents, communication with institutions involved, and management of funds.

Health and life insurance particularly require careful review. This includes determining if assisted reproduction is covered by one or both of the prospective parents’ policies, to what extent, and under what conditions; if related medical costs are covered by one or both of the prospective parents’ policies, to what extent, and under what conditions; whether a gestational pregnancy is covered by the carrier’s insurance; that if needed, proper insurance can be purchased through one or both of the prospective parents’ employers, the marketplace, or the gestational carrier, and which is preferable; and that if coverage is denied by the insurance company the matter is appealed or litigated.

Given the costs involved with the procedures, both direct and ancillary, and that they may require prolonged and/or repetitive effort, prudent management of finances is crucial. This includes establishing a structured payment plan with the agency, clinic, donor, or surrogate and creating and managing a trust account, attorney-client trust account, or escrow account for funds to be safely processed through.

Starting a family is an emotional experience, and proper planning provides the peace of mind needed to enjoy it.

When it comes to surrogacy, adoption, or assisted reproduction, the importance of litigation experience is in helping prevent the need for it. It allows prospective parents to avoid exploitation, fraud, or other unpleasantness.

Unfortunately, disagreement, wrongdoing, or malfeasance can still occur. This may include failure to disclose medical or other pertinent information by the surrogate, agency, or lab; wrongful adoption (being misinformed about the health or background of the child); change of mind by the surrogate; or a different breach of contract.

Even when the process results in the joyous addition of a child to the family, the violation of rights or misappropriation of funds by any of the parties may still justify legal action.

Whether opting for litigation or dispute resolution, it’s helpful that the attorney is already familiar with the case and circumstances and vital that they have the determination, dedication, and experience needed to succeed.