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Can a Surrogate Mother Seek Custody of the Child in New York?


There are myriad ways to grow your family. Surrogacy, a legal arrangement where a woman agrees to bear a child for another person or couple, is one such way. Without the “legal” part of the arrangement in place, however, parents-to-be can face some serious setbacks.

There is a surrogacy case making its way through the British Columbia court system right now, where a woman (known as K.B. in the court documents) agreed to be a surrogate for a couple but is now seeking custody of the child. She claims she had a long-term affair with the husband (known as M.S.B. in the documents) who said he would leave his wife and raise the child with her. Per The Daily Beast:

The trio allegedly traveled to India in July 2016 to implant one of the wife’s frozen embryos into K.B.’s uterus, but the pregnancy didn’t take. A month later, K.B. claims, the couple asked her to act as their surrogate using her own eggs. Instead of impregnating her at a fertility clinic or with a home insemination clinic, however, K.B. says the husband suggested he impregnate her naturally ….

The pregnancy took, and by April 2017, she says, “M.S.B. was telling her that he would soon be leaving [his wife,] but now only after the child was born.”

M.S.B. has denied this version of the story, though he admits to the affair. (There is no mention of what Mrs. M.S.B. thinks, agreed to, or wants.) K.B. is seeking “equal parenting time, joint guardianship, and child support” from M.S.B.

A considerable amount of dirty laundry is aired throughout the court documents, which is one reason why couples often choose to avoid litigation when they can. A final ruling will be made in January.

All of this led us to consider how such a case might proceed in New York.

How the Child Parent Security Act affects gestational surrogacy in New York

First, know that there is a difference between “surrogacy” and “gestational surrogacy.” Surrogacy refers to a woman carrying a child which may or may not have genetic ties to her. In gestational surrogacy, the birth mother carries a child who is genetically unrelated to her. This is an important distinction.

For years, under New York DRL § 122 (2020), “Genetic surrogate parenting agreements [were] hereby declared contrary to the public policy of this state, and [were] void and unenforceable.” In other words, if Couple A could not conceive, and created a surrogacy agreement with Birth Mother B to carry their embryos through the fetal development stage and eventually giving birth to a baby, the courts would not honor that agreement.

In 2020, the New York State Legislature passed the Child Parent Security Act (CPSA). Under the CPSA, gestational surrogacy agreements are now allowed “between at least one intended parent and a person acting as surrogate intended to result in a live birth where the child will be the legal child of the intended parents.” As of February 15, 2021, Couple A could make an agreement with Birth Mother B to carry their embryo through the fetal development state, eventually giving birth to a baby that would legally be Couple A’s baby. The new law also:

  • Establishes legal criteria for gestational surrogacy agreements that provide the strongest protections in the nation for parents and surrogates, ensuring all parties provide informed consent at every step of the process;
  • Creates a Surrogates’ Bill of Rights to ensure the unfettered right of surrogates to make their own healthcare decisions, including whether to terminate or continue a pregnancy, and that surrogates have access to comprehensive health insurance and independent legal counsel of their choosing, all paid for by the intended parents; and
  • Creates a streamlined process for establishing parenthood when one of the individuals is a non-biological parent, a process known as “second parent adoption.”

(See: Governor Cuomo Announces Gestational Surrogacy Now Legal in New York State)

What if the birth mother is genetically related to the baby?

The CPSA was designed to help LGBTQIA+ and heterosexual couples who could not conceive on their own by providing for the designation of legal parenthood on the couple or individual who uses the surrogate. However, it was not designed to address concerns where the birth mother is genetically related to the baby, such as in the case of K.B. and M.S.B.

Could what happened to them happen to a New York family?

Yes, it could. Surrogacy agreements are still “statutorily prohibited” in New York for couples undergoing “traditional” or “genetic” surrogacy. Furthermore, the surrogate as well as the couple or individual who uses a surrogate may be subject to civil and criminal penalties if they enter such an agreement and compensation is involved. Instead, Couple A would have to legally adopt the Birth Mother B’s baby.

Because of this, Birth Mother B could refuse to give up her baby, and is legally allowed to seek joint custody as well as child support.

Berkman Bottger Newman & Schein LLP provides skilled guidance regarding adoption, legal surrogacy, child custody, child support, and order modification. To learn more about our services, please call (212) 466-6015 or fill out our contact form. Proudly serving New York, Westchester, and Bergen County, NJ.