A Change in the Wind: Surrogacy Law in New York

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In layman’s terms, surrogacy is simply arranging a woman to carry and give birth to a child. The contracts that are used between the “intended parents” (or “genetic parents”) and the “surrogate” (or “gestational mother”) are called “gestational agreements” (or “surrogacy contracts”).

As it stands today, paid surrogacy in New York is illegal. That is, it is illegal to “accept, receive, pay or give any fee, compensation … directly or indirectly, in connection with any surrogate parenting contract …” (Article 8 of the Domestic Relations Law § 123).

Furthermore, such conduct is a felony, subject to a civil penalty.

Conversely, unpaid surrogacy contracts are not subject to such harsh punishment. Instead, unpaid surrogacy contracts are considered void and unenforceable. However, the surrogacy is legal, and the intended parents can either seek adoption upon consent of the surrogate, or court intervention to determine custody based on the best interests of the child.

In the 2011 case T.V. v. N.Y. State Dep’t of Health, genetic parents sought to adopt their biological child birthed from a surrogate. In their written opinion, the intermediate appellate Court discusses the history of banning surrogate parenting contracts. In 1988 a Task Force on Life and the Law was convened which recommended that custody should remain with the birth mother, unless the court finds it to be in the best interests of the child to award the genetic mother custody. In 1992, after years of debate, the New York State Legislature outlawed surrogacy contracts as a matter of public policy.

However, the Task Force, in recognizing the obvious, stated in its report that while the law would “greatly reduce” surrogacies, it would not eliminate them from happening.  Therefore, in furthering the birth mother’s presumption of custody, the New York State Legislature enacted Domestic Relations Law § 124, which provides that the birth mother’s participation in an illegal surrogacy contract should not be held against her in a custody battle.

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Same sex couples, women who cannot conceive or women who have high risk for their own and/or their unborn child’s life may look to surrogacy as their only hope. Moreover, pregnancy carries with it an inherit risk of death and complications (According to the CDC website “Sadly, about 700 women die each year in the United States as a result of pregnancy or delivery complications”).

Another issue is cost. On average IVF can cost approximately $40,000 – $60,000 to undergo two cycles (FertilityIQ). While surrogacy is not cheap, there is more wiggle room because there are different components, such as agency fees, attorney fees, and surrogate compensation, which allows for shopping around as opposed to being locked into a one-stop-shop with no bargaining power.

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Our laws evolve as society changes, and New York is catching up to what is already legal in other States.  Currently, there is pending legislation that would legalize surrogacy contracts. Senate Bill S2071B was passed in the Senate and is now awaiting review in the Assembly as of June 2019. The legislation would authorize gestational agreements (otherwise known as surrogacy contracts) if they conform with specific requirements. The intended parents who meet the requirements for the surrogacy contract can then seek a judgment of parentage from a court, prior to the birth of the child, which becomes effective immediately upon birth.

A New York State Assembly Memorandum in Support of Legislation (Sponored by Rep. Amy Paulin), justifies Senate Bill S2071B (Assembly Bill A1071C) because “New York law has failed to keep pace with medical advances in assisted reproduction, causing uncertainty about who the legal parents of a child are upon birth.”

There are two major elements of surrogacy, and both are addressed by the pending legislation. They are a gestational agreement, which is a contract between the intended parents and the woman who will carry the child to term, and a judgment of parentage which preemptively establishes who the “legal parents” of the child are.

Surrogacy contracts, or gestational agreements, layout and make explicitly clear what each party’s duties and obligations are. The contract may have provisions that include that the intended parents provide health insurance to the surrogate (gestational carrier) in addition to compensation; or that the intended parents are responsible for any lost wages, child care expenses, housecleaning, etc.

If Senate Bill S2071B is passed there will be explicit requirements for these contracts to be enforceable as well. For instance, (1) all parties must be represented by their own lawyer and (2) the agreement forbids putting limitations on the surrogate to make her own healthcare decisions.

The other component, the judgment of parentage, is incredibly important because without it, there is a presumption that the birth mother (or surrogate) is the legal mother of the child, and if she is married, her husband is the presumed legal father.

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Whatever the reason an individual or a couple may want to choose it – the fact is, surrogacy is happening, regardless of the laws in New York. Those who are seriously considering using a surrogate should absolutely talk to a lawyer. While unpaid surrogacy is legal, problems may arise as the contracts between intended parents and surrogates are still unenforceable in New York at this time.

 

 

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Get Married: Why Couples Should Get Married If Only to Get Divorced

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There is an undeniable decline in marriages (22% between 1960 and 2016 according to the Pew Research Center).

While my viewpoint as a divorce attorney may seem self-serving when I encourage couples to marry (if only to get divorced later), rest assured it comes from a sincere place.

I have had many people tell me that they were in a long-term relationship with their spouse prior to getting married and they are now seeking a divorce for their short-term marriage. Others never married at all but have been in a relationship for many years.

Why this matters: In most states, including New York where I practice, the law rewards lower-earning spouses in lengthy marriages, and makes it difficult for individuals who are either unwed or had a short-term marriage. This goes for both alimony and equitable distribution.

This is not to say it cannot be done. New York, for instance, will award “palimony” (alimony for those who never married) in certain situations where there was an agreement between the couple that one would provide a specific sum to the other on a regular basis. But it must be proven in court, just like a contract. On the other hand, maintenance (alimony) in New York is a presumed obligation, making it much easier to obtain where appropriate.

As any lawyer will say, each situation is different. However, as of right now, the law is less forgiving to unwed couples when it comes to asset distribution as well.

Unless there is a written agreement (such as a pre-nup) stating otherwise, the creation of marital property happens automatically. Many unwed couples, and even those who are married, are unaware that retirement savings like 401(k)s and pensions are marital property subject to division.

The reasons why couples choose not to marry is understandable. For starters, the landscape of marriage in the last fifty years has been bleak, with a high probability of divorce leading to a glass half empty sort of outlook. Articles from the New York Times, Time Magazine, and Bloomberg, also state that there are less marriages among Millennials because they are pickier, more cautious, and take financial considerations into the mix.

With obtaining a divorce, however, there may be a psychological sense of closure. While just a piece of paper, a judgment of divorce signifies a definitive end in a relationship. Human emotion is complex. In some situations, a former partner may continue to pursue the affections of the other, if only because they do not believe the romance is over. Obviously, this still can occur with or without a divorce judgment. But a divorce is a period, not an ellipse and not a semicolon.

Divorces can also be celebrated. For some time there has become a trend in divorce parties (Six Ideas for an Awesome Divorce Party). Recently I came across an article about an ex-wife in Texas blowing up her wedding dress (Big bang: You could feel this Texan’s divorce being finalized from ’15 miles away,’ video shows).

 

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Rewarding Revenge: Husband Sues Wife’s Lover and Wins $8.8 Million

 

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For some it would be a dream, literally played out during sleepless nights: Suing your husband’s mistress, making her squirm before a packed courtroom and having the audience gasp as you point your finger at her and say “Isn’t it true, you knew he was married!” This might be justice, and being financially awarded for the pain and humiliation might seem fair.

Recently, in North Carolina, Keith King sued his wife’s paramour and won – $8,800,000 to be exact. The grounds of the lawsuit being Alienation of Affection and Criminal Conversion.

To win a claim of Alienation of Affection, plaintiff must show that: (1) there was marriage with genuine love and affection existing; (2) that the love and affection was alienated and destroyed; and (3) the defendant through his wrongful and malicious acts caused the alienation and destruction. Criminal conversion (synonymous with “adultery”) only requires proof of an actual marriage, and sexual intercourse between defendant and plaintiff’s spouse.

Currently, 6 states recognize Alienation of Affection as a cause of action (Hawaii, Mississippi, North Carolina, New Mexico, South Dakota, and Utah).

New York is credited with being the first state to establish the Alienation of Affection causes of action in 1864. Nearly every state followed suit and adopted it.

By 1935 however, the New York State Legislature abolished Alienation of Affection (along with other similar claims) by enacting what is referred to as the “Anti-Heart Balm Statute.” The original language of the statute made it explicitly clear that the reason for abolishing Alienation of Affection claims was due to:

“having been subjected to grave abuses, causing extreme annoyance, embarrassment, humiliation and pecuniary damage to many persons wholly innocent and free of any wrongdoing, who were merely the victims of circumstances, and such remedies having been exercised by unscrupulous persons for their unjust enrichment, and such remedies having furnished vehicles for the commission or attempted commission of crime and in many cases resulted in the perpetration of frauds.” (Civil Practice Act § 60-b).

This language disappeared in the recodification and streamlining of the Civil Practice Act in 1962 to what is now the Civil Practice Law and Rules (CPLR). Today, the statute just states that: “The rights of action to recover sums of money as damages for alienation of affections, criminal conversation, seduction, or breach of contract to marry are abolished …” (Civil Rights Act § 80-a).

Ironically, North Carolina, briefly abolished Alienation of Affection claims when their intermediate appellate court ruled that it was doing so in the 1984 case: Cannon v. Miller, 322 S.E.2d 780 (N.C. Ct. App. 1984). In their lengthy decision, the court reasoned that the “potential for abuse, the lack of deterrent effect, the difficulty determining causation, and the inappropriateness of recovery for emotional harm predicated on property theory” and “chance of blackmail” made the abolition justifiable.

The highest court in North Carolina disagreed, and reversed and remanded the decision stating that the intermediate appellate court “acted under a misapprehension of its authority” to abolish Alienation of Affection in the state. Cannon v. Miller, 327 S.E.2d 888 (1985). It should be noted that this opinion was a mere three paragraphs long, with no explanation as to why the state should continue hearing such lawsuits.

New York (and most states) do recognize Loss of Consortium claims in the context of derivative personal injury lawsuits. In such cases, family members are compensated for impairment of their intimate relationship with a tortiously injured loved one. A spouse may recover for the loss of services, companionship, or society of a wrongfully injured or deceased spouse. Consortium includes “such elements as love, companionship, affection, society, sexual relations, solace and more.”

Courts have recognized claims for Loss of Consortium between parents and children. However, in New York, the loss a parent may recover from must really come down to loss of services, i.e. financial contributions to the household or medical expenses paid.

One thing is for sure, society has evolved and the law continues to adapt. Alienation of Affection stems from a long history of antiquated property concepts. For about two hundred years in this country, marriage was defined by the doctrine of coverture: A wife’s legal identity was merged into her husband and therefore she could not enter into business contracts, own property, or sue others. She was her husband’s property. New York did pass the Married Women’s Property Act in 1848, which enumerated property rights of married women, but New York did not recognize a husband was guilty for raping his wife until 1984 in the case: People v. Liberta, 64 NY2d 152 (1984).

How we reconcile the difference between Loss of Consortium and Alienation of Affection is a matter of physical injury leading to a loss of income versus emotional ownership and possession of another.

 

**This post contains attorney advertising. Prior results do not guarantee a similar outcome. **

Special thanks to Shayna Williams, Esq., Mindy Betita, and Victoria Frebrer for contributing to this discussion.

Sources:

https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=3006&context=nclr

https://www.cnn.com/2018/07/31/us/north-carolina-adultery-law-trnd/index.html

Helsel v. Noellsch (Mo. Sup. Ct. 2003) https://caselaw.findlaw.com/mo-supreme-court/1352874.html

https://en.wikipedia.org/wiki/Civil_Practice_Law_and_Rules

People v. Liberta, 64 NY2d 152 (1984) https://h2o.law.harvard.edu/collages/33260

Santoro ex Rel. Santoro v. Donnelly, 340 F. Supp. 2d 464 (SDNY 2004) https://www.courtlistener.com/opinion/2452739/santoro-ex-rel-santoro-v-donnelly/

Hernandez v. Robles, 805 NYS2d 354 (2nd Dep’t 2005) https://casetext.com/case/hernandez-v-robles-24

https://memory.loc.gov/ammem/awhhtml/awlaw3/property_law.html

Douglas E. Abrams, Naomi R. Cahn, Catherine J. Ross, David D. Meyer, Contemporary Family Law (3d edition 2006)

Blackstone (1769)

Who Gets Custody of the Frozen Embryos?

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Beginning July 1, 2018 Arizona implemented a policy that custody of disputed embryos must be given to the party who intends to help them “develop to birth.”

Last month in June, here in New York, the NYC Appellate Division of the Supreme Court awarded the husband in a divorce proceeding the remaining frozen embryo in the case Finkelstein v. Finkelstein. This decision was made using different reasoning than Arizona’s new law.

In 1998 the New York Court of Appeals opined in Kass v. Kass that the general rules of contract interpretation shall be used to enforce in vitro fertilization (IVF) agreements.

In Finkelstein v. Finkelstein, the court, quoting the Court of Appeals, stated that they “are required to choose the construction that will carry out the plain purpose and object of the agreement.” Since the husband exercised the contract provision to withdraw his consent in carrying out the IVF (prior to implantation), the remaining embryo could not be used by either party.

Arizona has created a hard and fast rule. Conversely, in New York, it depends on what the prior agreement states. In this way there is some flexibility as to what the appropriate outcome will be.

 

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