THE SURROGATE'S RIGHT TO COUNSEL

The Child-Parent Security Act (the CPSA) became effective on February 15, 2021 and can be found in Article 5-C of the Family Court Act. 

Section 581-402 of the CPSA, entitled "Eligibility to enter surrogacy agreement" provides at paragraph (a) (6) as follows:

"(6) the person acting as surrogate, and the spouse of the person acting as surrogate, if applicable, have been represented throughout the contractual process and the duration of the contract and its execution by independent legal counsel of their own choosing who is licensed to practice law in the state of New York which shall be paid for by the intended parent or parents except that a person acting as surrogate who is receiving no compensation may waive the right to have the intended parent or parents pay the fee for such legal counsel. Where the intended parent or parents are paying for the independent legal counsel of the person acting as surrogate, and the spouse of the person acting as surrogate, if applicable, a separate retainer agreement shall be prepared clearly stating that such legal counsel will only represent the person acting as surrogate and the spouse of the person acting as surrogate, if applicable, in all matters pertaining to the surrogacy agreement, that such legal counsel will not offer legal advice to any other parties to the surrogacy agreement, and that the attorney-client relationship lies with the person acting as surrogate and the spouse of the person acting as surrogate, if applicable;