§ 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 record with each signature either notarized or
witnessed by two non-parties and signed by:

(1) each intended parent, and

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

(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;

(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, if applicable,
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 from the initiation of the contractual process and
the surrogacy agreement states that they shall be represented throughout
the duration of the surrogacy agreement by separate, independent legal
counsel of their own choosing, who is licensed to practice law in the
state of New York;

(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 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. The surrogacy agreement shall
specify the amount that the intended parent or parents shall place in
escrow to cover such reasonable anticipated costs including
preconception medical care and extending throughout the duration of the
expected surrogacy agreement. If it is anticipated that comprehensive
health care coverage will be used to cover the medical expenses for the
person acting as surrogate, the health care policy provisions related to
coverage and exclusions for the person acting as surrogate shall be
reviewed and summarized in relation to the anticipated pregnancy prior
to such policy being used to cover any of the person acting as
surrogate's medical expenses incurred pursuant to the surrogacy
agreement; and

(h) the surrogacy agreement 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 arranging or facilitating the transactions
contemplated by the surrogacy agreement, if any; 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
eligibility of the person acting as surrogate and the person acting as
surrogate's spouse, if applicable, 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 shall pay for a
disability insurance policy or other insurance policy to cover any lost
wages incurred by the person acting as surrogate in connection with
their participation in the surrogacy agreement after taking any
medication or commencing treatment to further embryo transfer excluding
medical procedures required to determine the medical eligibility to
become a person acting as surrogate. In the event that such insurance
coverage is not available, the intended parent or parents shall
reimburse the person acting as surrogate for any lost wages the person
acting as surrogate incurs in connection with their participation in the
surrogacy agreement.

(2) As to the intended parent or parents:

(i) the intended parent or parents shall accept custody of all
resulting children immediately upon birth regardless of number, gender,
or mental or physical condition and regardless of whether the embryo or
embryos was or 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 shall 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 shall execute a will, prior to the
embryo transfer, designating a guardian for all resulting children and
authorizing their executor to perform the obligations of the intended
parent or parents pursuant to the surrogacy agreement, including filing
a proceeding for a judgment of parentage for a child conceived pursuant
to a surrogacy agreement pursuant to section 581-203 of this article if
there is no intended parent living.