USA Law and Practice Contributed by: Valentina Shaknes, Jordan Messeri, Malissa Osei and Grace Chamoun Taranto, Krauss Shaknes Tallentire & Messeri LLP
Surrogacy Gestational surrogacy is the process by which a wom - an agrees to become pregnant via in vitro fertilisation and embryo transfer and to carry and deliver a baby for intended parents, who will be declared the legal parents of the child immediately upon birth. Surro - gacy is an important family-building option for many families experiencing fertility or health issues and/or for LGBTQ+ families. The USA does not have federal laws regarding gesta - tional surrogacy. Instead, each state has its own laws on the subject, which vary from state to state. In New York, surrogacy agreements were unenforceable until the Child Parent Security Act became law in 2021, which allows for compensated gestational surrogacy pursuant to surrogacy agreements and for parentage orders to be granted prior to the birth of a child. New York law only applies to gestational surrogacy, where - by the surrogate’s own egg is not used to conceive the child. Arrangements whereby the surrogate is biologi - cally related to the child remain unenforceable in New York and they are prohibited if the surrogate is being compensated. 1.5 Relevance of Marriage at Point of Conception or Birth Whether the parents are married at the point of the child’s birth, rather than at the point of conception, is relevant in the process of obtaining parental responsi - bility. In general, if a child is born of the marriage (and, in some states, born of a civil/domestic partnership), the parents of that child automatically obtain parental responsibility for the child. Under New York law, a child born to parents who are married at the time of the child’s birth is presumed to be “the legitimate child of both parents”, which is also referred to as the “presumption of legitimacy”. In addition, a decision by a New York Appellate Division court held that a child’s legitimacy is also presumed for a child born of parents who were not married at the time of the child’s birth but who subsequently enter into a civil or religious marriage (see Tiwary v Tiwary , 189 AD 3d 518 (2d Dep’t 2020)). 1.6 Same-Sex Relationships See 1.4 Requirements for Non-Genetic Parents .
• obtaining a parentage/paternity order from a court (eg, an “Order of Filiation” in New York); • entering into a custody agreement with the child’s mother; • obtaining a court order granting joint or sole legal custody; and • entering into a marriage with the mother. As regards parental rights for a father in a same-sex relationship, please see 1.4 Requirements for Non- Genetic Parents . 1.4 Requirements for Non-Genetic Parents There are various categories of non-genetic parents in the USA. Each category has different requirements for acquiring parental rights. Adoption US citizens who are at least 25 years old can legally adopt a child, subject to any additional requirements pursuant to specific state laws. Such requirements across various states throughout the USA regarding a person’s eligibility to adopt a child include, but are not limited to, passing criminal background checks. In New York, adoption is a legal proceeding whereby a person acquires the rights and responsibilities of a parent in all respects. Once the court grants an order of adoption, the parent and adopted child legally establish the relationship of parent and child. Step-Parents Step-parents who wish to acquire parental rights and responsibility for their step-children must formally adopt them. Once the step-children are adopted, the non-custodial parent no longer has parental rights or responsibilities, including child support. Step-parent adoption is the most common type of adoption in the USA. Same-Sex Relationships In 2015, the US Supreme Court struck down all state bans on same-sex marriage, and legalised same-sex marriages in all 50 states. Same-sex couples can establish parental rights in various ways, including by adoption, pregnancy and surrogacy. In general, a biological parent automatically has legal custody of the child, and a child born into a marriage is subject to both spouses’ legal custody.
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