Though compensated surrogacy remains illegal in New York State, "compassionate surrogacy" arrangements are remain legal
Last week, an unanimous four-judge panel, part of the New York Appellate Division in Brooklyn, New York, revived a gay dad's petition to adopt his son born via surrogacy. The dad, identified as "Joseph P." in court documents, had earlier been denied his petition to adopt by a Queens County Family Court Judge, John M. Hunt. The Queens judge denied the petition because compensated surrogacy contracts are illegal in New York. However, the child born to Joseph was born via "compassionate surrogacy," meaning his gestational surrogate was not compensated.
The Appellate court's decision, written by Justice Alan D. Scheinkmanm called Hunt's decision "clearly erroneous," and held that a new Family Court judge should re-hear the case.
Judge Hunt's decision is all the more confusing since Joseph had actually already become a father via surrogacy in New York—three times over. In each instance, he used donor eggs and a friend serving, voluntarily, as the gestational surrogate. He had his first child in 2012, and then twins the following year. In all three instances, a Family Court judge granted Joseph's adoption petition, given that each child was conceived via "compassionate surrogacy," meaning no money changes hands in the course of a surrogacy journey between carrier an intended parent. This type of surrogacy arrangement is not illegal under to New York law. The social worker in Joseph's latest attempt to adopt, Gay City News noted, also gave him a favorable review, calling him "a mature, stable, and caring person who intentionally created a family of himself, the twins, and John."
Gay City News notes: "Justice Scheinkman provided a careful description of the laws governing surrogacy in New York. The Legislature provided that surrogacy contracts are unenforceable and treated as void. However, the only surrogacy contracts actually outlawed are those where the surrogate is compensated. It was clear to the Appellate Division that the Legislature did not mean to outlaw voluntary surrogacy arrangements, merely to make them unenforceable in the courts. Those who enter into a compensated surrogacy agreement face a small monetary fine and people who act as brokers to arrange such agreements are liable for a larger penalty. There is no penalty for voluntary, uncompensated surrogacy arrangements."
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