New York State’s Reproductive Shift: New Understandings in Compensated Gestational Surrogacy

I. Introduction 
Gestational surrogacy is the process by which an individual carries and gives birth to a child for another person or couple. [1] This is typically accomplished through in vitro fertilization, in which an embryo is created using an egg and sperm from an intended parent and/or sperm donor, and is then implanted in the surrogate’s uterus. [3] The practice is sometimes performed by a relative or friend of the intended parent, but it is often carried out by a stranger for compensation. 

Compensated surrogacy is ethically controversial. At times, it is praised for benefitting couples and individuals struggling with infertility, as well as LGBTQ+ couples. However, some argue that it exploits the bodies of individuals with uteruses, individuals who are often low-income, commodifying children for the purpose of supporting affluent couples and people, especially considering the potential medical risk pregnancies pose. 

This debate is heavily reflected in the law. Currently, there is no major federal legislation regulating compensated surrogacy; it is instead decided upon by the states. [3] Though the majority of states allow the practice, others are staunchly opposed, and some have more convoluted rules that obscure contracted agreements. This lack of consensus complicates contractual enforceability and makes an incredibly expensive process less certain. Although some states strictly oppose compensated surrogacy, others, namely California, are significant advocates for the practice. In 2021, New York state formally legalized compensated surrogacy, following Washington and New Jersey’s legalizations from the previous year. [4]

II. Legal Compensated Gestational Surrogacy 
In 1993, the California Supreme Court heard Johnson v. Calvert, a dispute in which the surrogate, as per gestational surrogacy, had no genetic connection to the child, resulting in the court favoring the intended parents, ruling that “intent, not biology, determines parentage”. [5] This case initially contributed to California as a safe space for individuals hoping to conceive through gestational surrogacy. 

Compensated gestational surrogacy was then codified into law in California in 2013 with the Assembly Bill 1217 (AB 1217), which simply made the already practiced process officially legal. [6] The bill was significant because it instituted various protections for the parties involved, helping make California a pioneer in surrogacy and reproductive health. For instance, the law ensured that compensated gestational surrogacy was inclusive to differing family types, allowing for homosexual couples, single parents, and international individuals and couples to partake in the process. It also made it necessary for surrogates and intended parents to have separate legal representation and sign detailed, thought-out, notarized, and/or witnessed contracts prior to the initial embryo transfer.

Other states, like Illinois, for example, are also highly supportive of and have a longer history of compensated gestational surrogacy. [7] The practice is ultimately favored in circumstances where the surrogate does not have genetic ties to the child, and when put into law in different states, it typically demands an expansion of rights for parents, surrogates, and the newborn child. 

III. Anti-Compensated Gestational Surrogacy 
Few states continue to uphold official bans against compensated gestational surrogacy, though some maintain extremely restrictive policies, with Louisiana being one. In 2016, Louisiana passed the Surrogacy Bill HB 1102, which allows for gestational surrogacy only under the circumstances that the intending parents are a married heterosexual couple, surrogacy is medically necessary, all parties have resided in Louisiana for at least six months prior to the initiation of the process, and there cannot be any form of payment greater than covering expenses. [8] Furthermore, there are criminal and legal consequences for those found to enter surrogacy agreements not sanctioned by the law.[9] Louisiana’s policies thus prohibit the compensated aspect of compensated gestational surrogacy and also strictly reduce the benefits presented in typical arguments in favor of the practice, such as the assistance for homosexual individuals and couples. 

IV. Shift in New York State Law 
Prior to February 15, 2021, commercial gestational surrogacy was illegal in New York State, with parenting contracts considered unenforceable and the surrogate considered to be the parent of the newborn child. [10] This stance stemmed from a 1988 New Jersey case, in which a baby was born through traditional, rather than gestational surrogacy, in which the embryo legitimately belonged to the surrogate mother as opposed to being created in a laboratory. This resulted in a kidnapping and a subsequent complex legal battle between the surrogate and the intended parents. [11] Despite a key distinction in this case being the difference between gestational and traditional, this circumstance still contributed to the state’s initial and long-standing anti-surrogacy policies. 

Recently, the issue of gestational surrogacy was reconsidered, resulting in the passage of the Child-Parent Security Act, which not only legalized gestational surrogacy but also called for the implementation of protections for all parties involved. [12] The law includes guarantees of comprehensive health insurance, disability insurance, and life insurance provided by the intended parents to the surrogate for the entire duration of the pregnancy, and for 12 months afterward. Additionally, the law provides significant benefits to the intended parents, specifically, diminishing the need for traveling across states to participate in a surrogacy process, and takes away the burden of going through adoption by confirming parentage before the child is born. [13] Although surrogacy in general continues to be ethically controversial, many consider this new law a win for parents, surrogates, individuals experiencing infertility, and queer couples and individuals. And, traditional surrogacy, which was what contributed to the overarching state ban in the first place, and is considerably more morally gray than gestational surrogacy, remains prohibited. 

V. Conclusion 
Throughout the country, there are varying civil and legal perspectives on compensated gestational surrogacy, resulting in a difficult and often complex process. Many states, like New York and California, have made significant progress in creating a safe and protected surrogacy process for intended parents, surrogates, and children. Although the practice, both gestational and traditional, compensated or non-commercial, remains morally controversial to many, it will likely continue for decades to come, so it is crucial that governments prioritize security for all parties involved. 

[1] “Gestational Surrogacy: What Is It, Process, Risks & Benefits.” Cleveland Clinic, 7 June 2022, my.clevelandclinic.org/health/articles/23186-gestational-surrogacy

[2] “IVF (in Vitro Fertilization): Procedure & How It Works.” Cleveland Clinic, 2 Mar. 2022, my.clevelandclinic.org/health/treatments/22457-ivf

[3] “Map of U.S. Surrogacy Laws.” National Center for LGBTQ+ Rights, www.nclrights.org/get-help/resource/us-surrogacy-laws/

[4] Caron, Christina. “Surrogacy Is Complicated. Just Ask New York.” The New York Times, 18 Apr. 2020, www.nytimes.com/2020/04/18/parenting/pregnancy/surrogacy-laws-new-york.html

[5] Shulman, Maya. “Surrogacy Law in California.” California Lawyers Association, 18 Mar. 2026, calawyers.org/solo-small-firm/surrogacy-law-in-california/

[6] PSED Team, “Surrogacy Laws in California: Guide for Surrogates and Parents.” Pacific Surrogacy and Egg Donation, 29 May 2025, https://www.pacificsed.com/blog/surrogacy-laws-in-california

[7] “FAMILIES (750 ILCS 47/) Gestational Surrogacy Act.” Illinois General Assembly, 14 June 2024, www.ilga.gov/Legislation/ILCS/Articles?ActID=2613&ChapterID=59.

[8] HLS 16RS-1965 - HOUSE BILL NO. 1102. 2016. https://www.legis.la.gov/Legis/ViewDocument.aspx?d=991459.

[9] “Gestational Surrogacy in Louisiana.” Creative Family Connections, 11 June 2024, creativefamilyconnections.com/us-surrogacy-law-map/louisiana/

[10] “Gestational Surrogacy Ban Is Lifted in New York.” Colwell Law, 22 Mar. 2021, colwell-law.org/blog/gestational-surrogacy-ban-is-lifted-in-new-york/

[11] Maxwell, Susan. “Why I’m Celebrating the Change in New York’s Surrogacy Law.” Northwell, 15 Mar. 2021, www.northwell.edu/obstetrics-and-gynecology/fertility/news/insights/why-i-m-celebrating-the-change-in-new-york-s-surrogacy-law

[12] “The New York State Child-Parent Security Act: Gestational Surrogacy.” New York State Department of Health, www.health.ny.gov/community/pregnancy/surrogacy/

[13] Grossman, Joanna L. “A New Age: New York Repeals Longstanding Criminal Ban on Surrogacy.” Verdict, Justia, 22 Feb. 2021, verdict.justia.com/2021/02/22/a-new-age-new-york-repeals-longstanding-criminal-ban-on-surrogacy