Roe v. Wade and Surrogacy in New York

Amelia Demma and Brian Esser are two New York lawyers that we at Alcea regularly refer our surrogates and intended parents to. They assist them with the legal portions of a surrogacy arrangement.  

We asked Amelia and Brian their thoughts on the recent Roe V. Wade ruling, and more broadly what the impact could be on fertility services in New York. 

Brian : “We are really fortunate that the legislature recently codified abortion rights in New York.  That means that if the surrogate’s health is at risk, if the fetus is not viable, or if there is some kind of major impairment to the fetus, the surrogate and the intended parents have the ability to terminate the pregnancy without having to travel out of state.” 

Amelia: “We are also fortunate that in 2019 the New York legislature updated our insurance law as it pertains to medically assisted family formation. And then later in 2020 our legislature enacted the Child Parent Security Act defining what an embryo is under New York law. 

It is in the language of each piece of legislation that New Yorkers will find protections in their family building efforts, particularly and specifically with respect to claims we see being made in other states that grant embryos the same legal status carrying the same legal rights and protections as born persons.”

Many families are concerned about other related rights, such as marriage equality!  

Brian: “New York enacted marriage equality by statute, so even if the Supreme Court were to overrule Obergefell, which made same-sex marriage legal nationwide, same-sex couples will still be able to get married in New York.  A couple is not required to be married to pursue surrogacy in New York – and the rights of same-sex couples and LGBTQI individuals to form families via surrogacy were considered at all phases of the drafting and passage of the law.  New York will always be welcoming to LGBTQI families.”

Amelia added: “As New Yorkers celebrate and persist in our commitment to marriage for all so, too, do we, through legislation, recognize that everyone deserves a chance to have a family. Our updated insurance law, in articulating a mandate for IVF coverage,  prohibits insurers from denying coverage for fertility services based on sexual orientation.  Our Family Court Act now defines a  “parent” as a someone who simply but explicitly expresses, in the course of fertility treatment, his/her/their intent to parent a child born from that fertility service.”

We asked Amelia about some families’ concerns about IVF and the ability to use their embryos.  

Amelia: “Over the last 15 years, in states across the country, we’ve seen initiatives both as ballot measures as well as proposed legislation attempt to define life at fertilization and thereby assign to embryos the status of “persons” entitled to constitutional protections. In fact, in Oklahoma, Texas, Kentucky and Louisiana, each state’s abortion ban prohibits “termination” as early as the moment of fertilization. Following the loss of Roe protections, we should be careful as states introduce their abortion bans or reinforce their abortion “trigger” laws and watch closely the status assigned by those states to embryos. States with so-called “fetal personhood” laws are worrisome and threatening for those states’ residents who will rely on IVF for family building as, practically, such legislation could limit medical services provided by reproductive endocrinologists and restrict embryology practices. 

Because New York rejects the concept of “embryos as persons” and defines, in law, that an embryo be viewed only in a clinical context as “a  cell  or  group of cells” and further describes the embryo transfer process as “the transfer of an embryo….that has the potential to develop into a live born human”, residents of New York continue to have access to advanced technological services as offered by fertility centers across the state. The decision last week by the United States Supreme Court to overturn Roe does not reach New Yorkers who have been and will remain protected by New York legislation in their pursuit of medical assistance in order to have a baby.

The recent Supreme Court decision has left us all with uncertainty. We have questions about our rights, about the procedures that govern us, and what the language of the laws mean for our future. Alcea is committed to providing resources and information for all who are threatened by the loss of Roe. If you have any specific questions for our friends Amelia and Brian, let us know. Alcea will continue to provide the thoughts and expertise of legal professionals all over the country to ensure that you—our clients, our colleagues, our community—are equipped with the answers we so desperately need.