PARENTAGE COURT PROCEEDINGS
Once the Intended Parents and the gestational surrogate enter into a surrogacy agreement—and embryo(s) have been implanted—the participants should file a petition seeking a judgment holding that the Intended Parents are the legal parents of the child and extinguishing any custodial rights of the surrogate. Such a proceeding may be brought in Supreme Court, Family Court, or Surrogate’s Court. A parentage proceeding can be commenced prior to the child’s birth, but the judgment does not become effective until the birth. In a parentage proceeding, courts will generally enforce surrogacy agreements that comply with the statutory requirements, or agreements that “substantially comply.”
Where a surrogacy agreement, however, does not substantially comply with the provisions of the CPSA, the court will determine parentage based on the intent of the parties, including by taking into account the best interests of the child.