Eliminates the prohibition on surrogate parenting contracts; repealer

1 Co-sponsor

• José M. Serrano

BILL NUMBER:S2547

Title of bill

An act to repeal article 8 of the domestic relations law, relating to the prohibition of surrogate parenting contracts

Purpose or general idea of bill

To ensure that loving and committed couples have every opportunity to raise and nurture their own genet- ically linked children - including the utilization of a gestational surrogate parenting contracts - a practice currently prohibited under New York State Law.

Summary of specific provisions

The legislation repeals Article 8 of the Domestic Relations Law that specifically prohibits the use of surro- gate parenting contracts.

Justification

On July 17, 1993, New York State passed an outright prohibition on commercial surrogacy agreements. Commercial surrogacy agreements - in which a woman is paid to carry and bear the product of her egg and donor sperm or an implanted fertilized egg -- is completely banned in New York by Article 8 of the New York State Domestic Relations Law. The state is one of only four in the nation with such a ban.

Concern about commercial surrogacy arrangements reached a peak during the 1988 New Jersey Case, in the Matter of Baby M (A.2d 1227 (NJ. 1988)), a traditional surrogacy arrangement. In traditional surrogacy, the surrogate herself provides the eggs and is therefore genetically related to the child. This form of surrogacy is the older method and can result in legal uncertainty for the contracting parties because of the genetic link between the surrogate and the baby, as was demonstrated in the "Baby M" case. In this case, a New Jersey court ruled that the surrogacy contract was invalid according to public policy and recognized the surrogate - not woman who had initiated the surrogacy contract -- as the child's legal mother.

The "Baby M" case took place prior to widespread scientific advancements in New York and elsewhere that have made in vitro fertilization ("IVF') a mainstay medical technology and since obviated the need for tradi- tional surrogacy. Instead, gestational surrogacy is the preferred surro- gacy arrangement. In gestational surrogacy, the surrogate carries a pregnancy and delivers a child that is created from the egg and the sperm of the intended parents and /or donor egg and /or donor sperm and/or donated embryos in any combination. The key to this type of surrogacy is that the gestational surrogate is not genetically related to the child and acts only as a gestational carrier for the pregnancy.

The infamous "Baby M" case led to a number of states banning surrogacy agreements, including New York. However, the current ban on surrogacy contracts contained in Article 8 of the Domestic Relations Law did not anticipate IVF technology and the ability of gestational surrogates to be implanted with a fertilized donor egg. The Statute is wrong because of its outdated reference to surrogacy and medical technology and

because it denies intended parents what may be their only means of procreating a child of their own genetic stock.

Many states - and most recently the State of California in 2012 - have passed legislation to strengthen and improve the rights of those enter- ing into valid commercial gestational surrogacy arrangements. It is time for the State of New York to do the same - and the first step is to repeal the ban found in Article 8 of the Domestic Relations Law.

Prior legislative history

New bill.

Fiscal implications

Minimal

Effective date

This act shall take effect immediately.