§ 581-403. Requirements of surrogacy agreement. A surrogacy agreement
shall be deemed to have satisfied the requirements of this article and
be enforceable if it meets the following requirements:

(a) it shall be in a signed record verified or executed before two
non-party witnesses by:

(1) each intended parent, and

(2) the person acting as surrogate, and the spouse of the person
acting as surrogate, if any, unless:

(i) the person acting as surrogate and the spouse of the person acting
as surrogate 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) have been living separate and apart for at least three years
prior to execution of the surrogacy agreement;

(b) it shall be executed prior to the person acting as surrogate
taking any medication or the commencement of medical procedures in the
furtherance of embryo transfer, provided the person acting as surrogate
shall have provided informed consent to undergo such medical treatment
or medical procedures prior to executing the agreement;

(c) it shall be executed by a person acting as surrogate meeting the
eligibility requirements of subdivision (a) of section 581-402 of this
part and by the spouse of the person acting as surrogate, unless the
signature of the spouse of the person acting as surrogate is not
required as set forth in this section;

(d) it shall be executed by intended parent or parents who met the
eligibility requirements of subdivision (b) of section 581-402 of this
part;

(e) the person acting as surrogate and the spouse of the person acting
as surrogate, if applicable, and the intended parent or parents shall
have been represented throughout the contractual process and the
duration of the contract and its execution by separate, independent
legal counsel of their own choosing;

(f) if the surrogacy agreement provides for the payment of
compensation to the person acting as surrogate, the funds for base
compensation and reasonable anticipated additional expenses shall have
been placed in escrow with an independent escrow agent, who consents to
the jurisdiction of New York courts for all proceedings related to the
enforcement of the escrow agreement, prior to the person acting as
surrogate commencing with any medical procedure other than medical
evaluations necessary to determine the person acting as surrogate's
eligibility;

(g) the surrogacy agreement must include information disclosing how
the intended parent or parents will cover the medical expenses of the
person acting as surrogate and the child. If comprehensive health care
coverage is used to cover the medical expenses, the disclosure shall
include a review and summary of the health care policy provisions
related to coverage and exclusions for the person acting as surrogate's
pregnancy; and

(h) it shall include the following information:

(1) the date, city and state where the surrogacy agreement was
executed;

(2) the first and last names of and contact information for the
intended parent or parents and of the person acting as surrogate;

(3) the first and last names of and contact information for the
persons from which the gametes originated, if known. The agreement shall
specify whether the gametes provided were eggs, sperm, or embryos;

(4) the name of and contact information for the licensed and
registered surrogacy program handling the surrogacy agreement; and

(5) the name of and contact information for the attorney representing
the person acting as surrogate, and the spouse of the person acting as
surrogate, if applicable, and the attorney representing the intended
parent or parents; and

(i) the surrogacy agreement must comply with all of the following
terms:

(1) As to the person acting as surrogate and the spouse of the person
acting as surrogate, if applicable:

(i) the person acting as surrogate agrees to undergo embryo transfer
and attempt to carry and give birth to the child;

(ii) the person acting as surrogate and the spouse of the person
acting as surrogate, if applicable, agree to surrender custody of all
resulting children to the intended parent or parents immediately upon
birth;

(iii) the surrogacy agreement shall include the name of the attorney
representing the person acting as surrogate and, if applicable, the
spouse of the person acting as surrogate;

(iv) the surrogacy agreement must include an acknowledgement by the
person acting as surrogate and the spouse of the person acting as
surrogate, if applicable, that they have received a copy of the
Surrogate's Bill of Rights from their legal counsel;

(v) the surrogacy agreement must permit the person acting as surrogate
to make all health and welfare decisions regarding themselves and their
pregnancy including but not limited to, whether to consent to a cesarean
section or multiple embryo transfer, and notwithstanding any other
provisions in this chapter, provisions in the agreement to the contrary
are void and unenforceable. This article does not diminish the right of
the person acting as surrogate to terminate or continue a pregnancy;

(vi) the surrogacy agreement shall permit the person acting as a
surrogate to utilize the services of a health care practitioner of the
person's choosing;

(vii) the surrogacy agreement shall not limit the right of the person
acting as surrogate to terminate or continue the pregnancy or reduce or
retain the number of fetuses or embryos the person is carrying;

(viii) the surrogacy agreement shall provide for the right of the
person acting as surrogate, upon request, to obtain counseling to
address issues resulting from the person's participation in the
surrogacy agreement, including, but not limited to, counseling following
delivery. The cost of that counseling shall be paid by the intended
parent or parents;

(ix) the surrogacy agreement must include a notice that any
compensation received pursuant to the agreement may affect the person
acting as surrogate's ability for public benefits or the amount of such
benefits; and

(x) the surrogacy agreement shall provide that, upon the person acting
as surrogate's request, the intended parent or parents have or will
procure and pay for a disability insurance policy for the person acting
as surrogate; the person acting as surrogate may designate the
beneficiary of the person's choosing.

(2) As to the intended parent or parents:

(i) the intended parent or parents agree to accept custody of all
resulting children immediately upon birth regardless of number, gender,
or mental or physical condition and regardless of whether the intended
embryos were transferred due to a laboratory error without diminishing
the rights, if any, of anyone claiming to have a superior parental
interest in the child; and

(ii) the intended parent or parents agree to assume responsibility for
the support of all resulting children immediately upon birth; and

(iii) the surrogacy agreement shall include the name of the attorney
representing the intended parent or parents; and

(iv) the surrogacy agreement shall provide that the rights and
obligations of the intended parent or parents under the surrogacy
agreement are not assignable; and

(v) the intended parent or parents agree to execute a will, prior to
the embryo transfer, designating a guardian for all resulting children
and authorizing their executor to perform the intended parent's or
parents' obligations pursuant to the surrogacy agreement.