§ 581-402. Eligibility to enter surrogacy agreement. (a) A person
acting as surrogate shall be eligible to enter into an enforceable
surrogacy agreement under this article if the person acting as surrogate
has met the following requirements at the time the surrogacy agreement
is executed:

(1) the person acting as surrogate is at least twenty-one years of
age;

(2) the person acting as surrogate: (i) is a United States citizen or
a lawful permanent resident, and (ii) has been a resident of New York
state for at least six months if neither intended parent has been a
resident of New York state for at least six months;

(3) the person acting as surrogate has not provided the egg used to
conceive the resulting child;

(4) the person acting as surrogate has completed a medical evaluation
with a health care practitioner relating to the anticipated pregnancy.
Such medical evaluation shall include a screening of the medical history
of the potential surrogate including known health conditions that may
pose risks to the potential surrogate or embryo during pregnancy;

(5) the person acting as surrogate has given informed consent to
undergo the medical procedures after the licensed health care
practitioner has informed them of the medical risks of surrogacy
including the possibility of multiple births, risk of medications taken
for the surrogacy, risk of pregnancy complications, psychological and
psychosocial risks, and impacts on their personal lives;

(6) the person acting as surrogate, and the spouse of the person
acting as surrogate, if applicable, have been represented from the
initiation of the contractual process and throughout the duration of the
surrogacy agreement 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 independent legal counsel of the person acting as surrogate,
and the spouse of the person acting as surrogate, if applicable, is paid
by the intended parent or parents, 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;

(7) the person acting as surrogate has or the surrogacy agreement
stipulates that the person acting as surrogate will obtain comprehensive
health insurance coverage that takes effect after the person acting as
surrogate has been deemed medically eligible but prior to taking any
medication or commencing treatment to further embryo transfer that
covers:

(i) preconception care. The surrogacy agreement shall state that the
intended parent or parents will be responsible for all medical costs of
the person acting as surrogate associated with their preconception care
including but not limited to medical and psychological screenings,
medications, embryo transfer procedure, monitoring prior and subsequent
to the embryo transfer procedure and any complications associated with
the foregoing. The intended parent or parents shall be responsible for
the costs of any such complications either through insurance or by
placing and maintaining sufficient funds in escrow to cover such
expenses. If the surrogacy agreement is terminated after the person
acting as surrogate has taken any medication or commenced treatment to
further embryo transfer but before pregnancy is achieved, such funds
shall remain in escrow for a minimum period of six months from the date
the surrogacy agreement is terminated;

(ii) medical expenses associated with pregnancy. The person acting as
surrogate has, or the surrogacy agreement shall stipulate that the
person acting as surrogate will obtain, comprehensive health insurance
coverage, via one or more insurance policies, prior to or immediately
upon confirmation of pregnancy that covers prenatal care, major medical
treatments, hospitalization, behavioral health care, childbirth and
postnatal care, and that such comprehensive coverage must be in place
throughout the duration of the pregnancy and for twelve months after the
birth of the child, a stillbirth, a miscarriage resulting in termination
of the pregnancy, or termination of the pregnancy. The policy shall be
paid for, whether directly or through reimbursement or other means, by
the intended parent or parents on behalf of the person acting as
surrogate to the extent that there is an additional cost to the person
acting as surrogate for such health insurance coverage. The intended
parent or parents shall also pay for or reimburse the person acting as
surrogate for all co-payments, deductibles and any other out-of-pocket
medical costs associated with pregnancy, childbirth, or postnatal care,
that accrue through twelve months after the birth of the child, a
stillbirth, a miscarriage resulting in termination of the pregnancy, or
termination of the pregnancy; and

(iii) uncompensated surrogacy agreements. A person acting as surrogate
who is receiving no compensation may waive the right to have the
intended parent or parents make the payments set forth in this section;

(8) the surrogacy agreement must provide that the intended parent or
parents shall pay for a life insurance, contractual liability or
accidental death insurance policy for the person acting as surrogate
that takes effect prior to taking any medication or the commencement of
medical procedures to further embryo transfer, provides a minimum
benefit of seven hundred fifty thousand dollars or the maximum amount
the person acting as surrogate qualifies for if it is less than seven
hundred fifty thousand dollars, and such coverage shall extend
throughout the duration of the expected pregnancy and for twelve months
after the birth of the child, a stillbirth, a miscarriage resulting in
termination of pregnancy, or termination of the pregnancy, with a
beneficiary or beneficiaries of the person acting as surrogate's
choosing. The policy shall be paid for, whether directly or through
reimbursement or other means, by the intended parent or parents on
behalf of the person acting as surrogate pursuant to the surrogacy
agreement, except that a person acting as surrogate who is receiving no
compensation may waive the right to have the intended parent or parents
pay for the life insurance, contractual liability or accidental death
insurance policy but not the requirement to have such a policy; and

(9) the person acting as surrogate meets all other requirements deemed
appropriate by the commissioner of health regarding the health of the
prospective surrogate.

(b) The intended parent or parents shall be eligible to enter into an
enforceable surrogacy agreement under this article if he, she or they
have met the following requirements at the time the surrogacy agreement
was executed:

(1) at least one intended parent is:

(i) a United States citizen or a lawful permanent resident; and

(ii) has been a resident of New York state for at least six months if
the person acting as surrogate has not been a resident of the state of
New York for at least six months;

(2) they have been represented from the initiation of the contractual
process and throughout the duration of the surrogacy agreement by
independent legal counsel of his, her or their own choosing who is
licensed to practice law in the state of New York; and

(3) they are an adult person who is not in a spousal relationship, or
any adults who are spouses together, or any adults who are intimate
partners together, except an adult in a spousal relationship is eligible
to enter into an enforceable surrogacy agreement without their spouse
if:

(i) they are living separate and apart pursuant to a decree or
judgment of separation or pursuant to a written agreement of separation
subscribed by the parties thereto and acknowledged or proved in the form
required to entitle a deed to be recorded; or

(ii) they have been living separate and apart for at least three years
prior to execution of the surrogacy agreement.

(c) where the spouse of an intended parent is not a required party to
the agreement, the spouse is not an intended parent and shall not have
rights or obligations to the child.