Surrogate parenting contracts were declared contrary to public policy of New York by the passage of NY CLS Dom Rel § 122 which holds surrogate contracts void and unenforceable.
Declaring Surrogacy agreements contrary to public policy has not prevented New York courts from recognizing the parental rights of intended parents in a surrogacy situation. In McDonald v. McDonald, a New York Appellate Court found in a custody dispute that a woman with no genetic connection to her children could still be their legal mother. In that case, a woman gave birth to twins after gestating an embryo that was created from her husband’s sperm and a donated egg. The Court concluded that the intended mother was the legal mother, relying on a California case which held in an “egg donation” case, that the wife, who is the gestational mother, is the natural mother of the children, and is, under the circumstances, entitled to temporary custody of the children with visitation rights granted to the husband.
Further, in the 2004 case of Doe v. New York City Bd. of Health the intended mother of triplets was not required to provide DNA evidence in order to be granted parental rights after the gestational surrogate relinquished her parental rights.