Surrogacy, IVF, and Donor Agreements for Same‑Sex Couples in New York

Building a family as a same-sex couple in New York is both a joyful and complex journey that requires careful legal planning. Between surrogacy, in vitro fertilization (IVF), and donor agreements, the process involves multiple layers of law that protect the rights of intended parents and ensure the best interests of the child. A knowledgeable New York divorce attorney who understands both family formation and family dissolution law can help couples anticipate and avoid future disputes, ensuring that the legal foundation of their family is as strong as their emotional one.

For LGBTQ+ couples in New York City, the legal landscape has evolved dramatically in recent years, thanks to laws like the Child-Parent Security Act (CPSA) that finally recognize intent-based parentage. However, handling surrogacy agreements, donor contracts, and parentage orders still requires experienced legal guidance. An experienced NYC LGBTQ divorce lawyer can help protect each partner’s parental rights and ensure those rights are recognized nationwide. For compassionate, informed representation, contact Juan Luciano Divorce Lawyer at (212) 537-5859 to schedule a confidential consultation.

New York’s Child-Parent Security Act (CPSA)

The Child-Parent Security Act (CPSA) is the bedrock of modern LGBTQ+ family creation law in New York. Enacted in 2021, the CPSA revolutionized how the state recognizes parentage by focusing on intent and consent, rather than biology or marriage. For same-sex couples, this shift represents not only legal inclusion but long-overdue protection and recognition.

Historically, New York’s family law system left non-biological parents in same-sex relationships legally vulnerable. In the landmark 1991 case Alison D. v. Virginia M., the state’s highest court denied a non-biological mother standing to seek visitation with her child, reflecting the absence of legal frameworks for LGBTQ+ families. That precedent was overturned in 2016 by the New York Court of Appeals in Brooke S.B. v. Elizabeth A.C.C., which recognized parental standing for non-biological parents in same-sex relationships. The CPSA later codified these principles, providing a clear statutory framework for recognizing intended parents in assisted reproduction and surrogacy cases.

The Critical Distinction: Gestational vs. Traditional Surrogacy

The CPSA legalized only gestational surrogacy, not traditional surrogacy, and understanding this distinction is essential for anyone pursuing surrogacy in New York.

Gestational Surrogacy

This is the only form of compensated surrogacy now legal and enforceable in New York. In gestational surrogacy, the surrogate (also called a gestational carrier) has no genetic connection to the child. The embryo is created through in vitro fertilization (IVF) using gametes from the intended parent(s) and/or a donor. This framework allows same-sex couples and other intended parents to establish legal parentage based on intent and consent, ensuring clarity and security for all parties.

Traditional Surrogacy

In traditional surrogacy, the surrogate uses her own egg, making her the child’s genetic mother. The CPSA did not legalize compensated traditional surrogacy. Any paid agreement of this kind remains void and unenforceable under New York law and may expose participants to civil or criminal penalties. While altruistic (unpaid) traditional surrogacy is not explicitly prohibited, it offers no contractual protections. Parentage in such cases must be established through adoption, adding layers of complexity and risk.

In practical terms, only gestational surrogacy offers a secure, legally recognized path for same-sex couples in New York.

The Surrogate’s Bill of Rights: What Intended Parents Must Know

To prevent exploitation and ensure fairness, the CPSA introduced the Surrogate’s Bill of Rights, the most comprehensive set of protections for surrogates in the country. For intended parents, compliance with these rights is not optional; it is a legal prerequisite for a valid surrogacy agreement.

Key surrogate protections include:

• Absolute Bodily Autonomy: The surrogate retains full control over her body and all health-related decisions throughout the pregnancy. This includes choices about embryo transfer, medical procedures (like C-sections), and whether to continue or terminate a pregnancy. Intended parents must respect this autonomy completely.
• Independent Legal Counsel: The surrogate has the right to her own New York-licensed attorney, chosen independently. Intended parents must cover all of her legal fees, but their attorney cannot represent or advise her.
• Comprehensive Health Insurance: Intended parents are required to provide a comprehensive health insurance policy covering preconception care, prenatal care, delivery, and post-pregnancy medical needs for at least 12 months after the pregnancy ends, regardless of the outcome.
• Life Insurance Policy: Before any medical procedure begins, the surrogate must be covered by a life insurance policy of at least $750,000, or the maximum amount for which she qualifies, fully paid by the intended parents.
• Psychological Counseling: The surrogate has the right to mental health support throughout the process, with all costs covered by the intended parents.

These rights form a legally mandated risk management framework that prioritizes transparency, fairness, and the well-being of all parties. While the financial and logistical commitments for intended parents are substantial, they create a stable and predictable foundation for family building that minimizes legal disputes and safeguards everyone involved.

Protection	Description	Legal Basis / Notes
Absolute Bodily Autonomy	The surrogate retains full control over her body and all health-related decisions throughout the pregnancy, including embryo transfer, medical procedures, and whether to continue or terminate a pregnancy.	The surrogate has the right to make all health and welfare decisions regarding herself and her pregnancy.
Independent Legal Counsel	The surrogate has the right to her own New York-licensed attorney, chosen independently. Intended parents must cover all legal fees, but their attorney cannot represent or advise her.	The surrogate must be represented by independent legal counsel of her own choosing, paid for by the intended parents.
Comprehensive Health Insurance	Intended parents must provide a comprehensive health insurance policy covering preconception, prenatal, delivery, and post-pregnancy care for at least 12 months after the pregnancy ends.	The surrogate has the right to health insurance covering all major medical and behavioral health care needs for the surrogacy period and 12 months afterward.
Life Insurance Policy	Before any medical procedure begins, the surrogate must be covered by a life insurance policy of at least $750,000, or the maximum amount for which she qualifies, paid by the intended parents.	The surrogate must be provided with a life insurance policy that remains in effect through the surrogacy process and afterward.
Psychological Counseling	The surrogate has the right to mental health support throughout the process, with all costs covered by the intended parents.	The surrogate is entitled to mental health counseling and behavioral health support paid by the intended parents.

Juan Luciano, NYC LGBTQ Divorce Lawyer

Gestational Surrogacy and Donor Agreements

For gay male couples, the path to parenthood in New York typically involves a “three-legged stool” of legal components: an egg donor agreement, a gestational surrogacy agreement, and a judgment of parentage. If any one of these legal legs is weak or missing, the entire family structure can be placed at risk.

The Egg and Embryo Donor Agreement

Before a surrogacy arrangement can begin, an embryo must first be created. This requires a separate legal agreement with the individual or entity providing the eggs.

Establishing Donative Intent: The most important function of this agreement is to confirm the donor’s clear and irrevocable donative intent. The contract must explicitly state that the donor is not an intended parent, that they relinquish all current and future parental rights and responsibilities, and that they understand any resulting child is the legal child of the intended parents.

Key Contractual Terms: In addition to terminating any parental claims, the agreement should address critical issues such as:

• Compensation for the donor.
• Confidentiality and any agreements regarding future contact or anonymity.
• The process for sharing medical information if a health issue arises.
• The disposition of any unused embryos created from the donation.

These provisions ensure clarity, prevent future disputes, and protect both the intended parents and the donor from legal uncertainty.

The Gestational Surrogacy Agreement (GSA)

The Gestational Surrogacy Agreement is the core contract with the surrogate and must strictly comply with all CPSA requirements to be enforceable.

• Mandatory Requirements: The agreement must be in writing and signed by all parties, including the intended parents, the surrogate, and the surrogate’s spouse (if applicable), before any medical procedure, such as embryo transfer, occurs.
• CPSA Compliance: The contract must fully incorporate and provide for every protection outlined in the Surrogate’s Bill of Rights, including health, legal, and financial safeguards.
• Independent Counsel: Both the intended parents and the surrogate must have separate attorneys licensed in New York to represent them throughout the negotiation and execution process. This ensures that each party’s rights and interests are independently protected.
• Filing and Recordkeeping: The Gestational Surrogacy Agreement itself is not filed with the hospital. Instead, the court’s Judgment of Parentage (JoP) — often obtained before birth — is provided to the hospital registrar so the child’s birth certificate correctly lists the intended parents.

The Judgment of Parentage (JoP)

The Judgment of Parentage is the final and essential legal step that establishes the intended parents as the only legal parents of the child. This court order cannot be replaced by an Acknowledgment of Parentage (AOP) form, which is not permitted in surrogacy cases.

• The Pre-Birth Order: Under the CPSA, intended parents can petition the court for a Judgment of Parentage before the child is born.
• Effective at Birth: Once approved, the court order becomes effective the moment the child is born. The court reviews the Gestational Surrogacy Agreement and related documentation before issuing the judgment.
• The Birth Certificate: This judgment directs the hospital and the New York Department of Health to list the intended parents on the child’s original birth certificate as the sole legal parents.

The CPSA applies when either the surrogate or at least one intended parent has been a New York resident for at least six months before the agreement, or when the child is born in New York. In addition, at least one intended parent must be a U.S. citizen or lawful permanent resident. To obtain a pre-birth order, either the surrogate or at least one intended parent must have been a New York resident for at least six months. In addition, at least one intended parent must be a U.S. citizen or lawful permanent resident to qualify under the CPSA.

IVF, Reciprocal IVF, and Donor Agreements

For lesbian couples, the legal journey often centers on donor gametes (sperm) and the creation of embryos through IVF, Reciprocal IVF, or IUI. While surrogacy is less common, the legal agreements surrounding donors and embryos are just as critical. Equally important is securing the parental rights of the non-gestating partner to ensure both parents are legally recognized.

Known Donor vs. Non-Identified Donor

The most important legal decision a couple makes in this process is the source of their donor sperm. The choice between a non-identified donor and a known donor has lasting legal consequences.

Non-Identified Donor (Sperm Bank)

This is the most legally secure option. When using a licensed sperm bank, the donor has already signed detailed contracts establishing their donative intent. These documents provide clear and irrefutable evidence that the donor has no parental rights or obligations, making the parentage process for the non-biological partner straightforward.

In recent years, the fertility industry has shifted away from the term “anonymous donor” to “non-identified” or “undisclosed donor”, acknowledging that advances in consumer DNA testing have made lifelong anonymity virtually impossible.

Known (Directed) Donor

Using a friend, family member, or another known person can feel emotionally appealing but carries significant legal risk.

• The Risk: Without a formal, written, and properly executed donor agreement, the donor may be legally recognized as a parent. This means the donor could later seek custody or visitation rights or be held responsible for child support. Informal arrangements such as emails, text messages, or verbal understandings are not sufficient to protect any party involved.
• The Legal Shield: A lawyer-drafted donor agreement is essential and must be signed before any insemination occurs. The agreement must clearly state the donor’s intent to serve only as a donor and not as a parent, permanently relinquishing all parental rights and responsibilities.
• Modern Legal Protection: New York law now provides strong protection for intended parents who take the correct legal steps. The Child-Parent Security Act (CPSA) explicitly recognizes that donors are not parents. In the Matter of Christopher YY v. Jessica ZZ (2018), the court reaffirmed that a properly executed donor agreement extinguishes a known donor’s rights, particularly when the couple is married and protected by the presumption of legitimacy.

IVF and Divorce: The Fate of Frozen Embryos

The intersection between assisted reproduction and divorce law is one of the most complex areas of modern family law. Couples, regardless of gender, who create embryos through IVF often have multiple embryos frozen for future use. The question of who controls these embryos in the event of a divorce can become deeply contentious.

New York’s “Contractual Approach”

This issue is governed by the landmark 1998 case Kass v. Kass. In that decision, the New York Court of Appeals ruled that embryo disposition agreements signed before IVF are legally binding and generally enforceable. The law treats embryos outside the uterus as a unique form of property, and their disposition is determined by the agreement the couple signed in advance.

The Clinic’s Paperwork

Every fertility clinic in New York requires an embryo disposition agreement before beginning IVF. This document specifies what should happen to any remaining embryos in the event of death, divorce, or other unforeseen circumstances. Typical options include:

• Allowing one partner to use the embryos for future reproduction.
• Donating the embryos to another couple or individual.
• Donating the embryos for scientific research.
• Thawing and discarding the embryos.

The Preventive Law Pitfall

Many couples sign these forms as routine clinic paperwork, often under stress and without realizing the long-term implications. However, in the event of a divorce or separation, that agreement will usually determine the fate of the embryos. Courts in New York give significant weight to these pre-existing contracts.

The Proactive Solution

Couples should approach this step with care and legal guidance. The embryo disposition agreement is not a mere formality; it is a binding legal contract. It is highly advisable to consult independent counsel before signing and, if necessary, draft a supplemental private agreement that clearly defines each partner’s intentions.

The CPSA provides a mechanism for one partner to formally transfer dispositional control to the other. This means one partner can permanently relinquish any rights to future embryos or resulting children unless they later consent in writing. This proactive approach exemplifies preventative family law, protecting families from potential conflict before it ever arises.

Why a Birth Certificate Is Not Enough

One of the most common and dangerous misconceptions in LGBTQ+ family building is the belief that if both parents’ names appear on a child’s birth certificate, their parental rights are secure. Unfortunately, that is not true.

A birth certificate is an administrative record, not a court order. In New York, which is considered an affirming state, hospitals and courts will generally respect it. However, once a family crosses state lines into a less affirming jurisdiction, that same document may not be recognized. In those states, a hospital, school, or court could refuse to acknowledge the rights of the non-biological or non-gestating parent. In the worst-case scenario, that parent could be treated as a legal stranger to their own child in a medical emergency or custody dispute.

To prevent that risk, LGBTQ+ parents need a binding legal document. The Child-Parent Security Act (CPSA) transformed family law in New York by creating clear, tiered options for establishing parentage—ranging from basic protection to the strongest possible legal security.

The Acknowledgment of Parentage (AOP)

The Acknowledgment of Parentage, or AOP, is the simplest and most accessible option. It is a short, two-page form that parents can sign to voluntarily establish legal parentage.

Under the CPSA, this form is now available to all parents, whether married or unmarried, who conceive a child through assisted reproduction. For many lesbian couples using a sperm donor, it is a practical and cost-free way to confirm both parents’ legal rights. In New York, a properly executed AOP carries the same legal force as a court order.

However, it has one critical limitation: it cannot be used in cases involving surrogacy. Families who welcome a child through a surrogate must use a different process.

The Judgment of Parentage (JoP)

A Judgment of Parentage, often referred to as a JoP, is a court-issued order that formally declares who the legal parents of a child are. It can be issued by the Family Court, the Supreme Court, or the Surrogate’s Court.

This process is mandatory for all surrogacy arrangements under the CPSA. For other families who used assisted reproduction, it is the “better” option because it offers more robust protection than the AOP. The JoP is a full court judgment, making it much harder to challenge or ignore in another state or by a government agency.

The process is straightforward and can often be completed before the child’s birth. Once approved, the judgment takes effect immediately upon birth, ensuring that both parents are recognized from the very beginning.

The Second-Parent Adoption (SPA)

The Second-Parent Adoption remains the most secure, “bulletproof” option for LGBTQ+ families, even after the passage of the CPSA. It is the traditional legal process in which the non-biological parent formally adopts their partner’s child, establishing a permanent parent-child relationship that no state can disregard.

This method provides the strongest interstate protection. Although a Judgment of Parentage should be recognized nationwide under the Full Faith and Credit Clause of the U.S. Constitution, a Second-Parent Adoption must be recognized. In the landmark 2016 case V.L. v. E.L., the U.S. Supreme Court unanimously ruled that all states are constitutionally required to honor valid adoption decrees issued in another state. For families who may travel, relocate, or face legal challenges in non-affirming jurisdictions, this protection is invaluable.

That said, the process can be emotionally and financially demanding. It often takes a year or more, requires home studies, fingerprinting, and background checks, and can cost several thousand dollars. Many parents find it frustrating that they must go through such a process to be recognized as a parent to their own child, but it remains the most legally secure option available.

Protecting Your Family’s Future and Your Parental Rights

Creating a family as a same-sex couple in New York is a beautiful and empowering journey, but it is also one that demands careful legal planning. From donor and surrogacy agreements to establishing parentage and protecting your rights across state lines, every decision carries long-term implications. The Child-Parent Security Act has given LGBTQ+ families in New York the legal recognition they have long deserved, but understanding and using those protections effectively still requires skilled legal guidance.

Whether you are beginning your journey with IVF, exploring surrogacy, or seeking to secure parental rights through adoption or court orders, the most important step is to ensure your family’s foundation is legally sound. Working with an experienced NYC LGBTQ divorce and family law attorney can help you establish parentage, minimize future risks, and protect your family no matter where life takes you. For trusted guidance and compassionate representation, contact Juan Luciano Divorce Lawyer at (212) 537-5859 to schedule a private consultation.