Legalize Surrogacy and Donor Rights

Section 1. The family court act is amended by adding a new article 5-C to read as follows:

ARTICLE 5-C

CHILD-PARENT SECURITY ACT PART 1. General provisions (581-101 - 581-103)

2. Judgment of parentage (581-201 - 581-205)

3. Child of assisted reproduction (581-301 - 581-307)

4. Gestational agreement (581-401 - 581-411)

5. Payment to donors and gestational carriers (581-501 - 581-502)

6. Miscellaneous provisions (581-601 - 581-604)

PART 1

GENERAL PROVISIONS Section 581-101. Short title.

581-102. Purpose.

581-103. Definitions.

§ 581-101. Short title. This article shall be known and may be cited as the "child-parent security act".

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD05907-05-7

S. 17--A 2

§ 581-102. Purpose. The purpose of this article is to legally establish a child's relationship to his or her parents where the child is conceived through collaborative reproduction.

§ 581-103. Definitions. (a) "Assisted reproduction" means a method of causing pregnancy other than sexual intercourse and includes but is not limited to:

1. intrauterine or vaginal insemination;

2. donation of gametes;

3. donation of embryos;

4. in vitro fertilization and transfer of embryos; and

5. intracytoplasmic sperm injection.

(b) "Assisted reproductive technology" or "ART" is any medical or scientific intervention, including, but not limited to, assisted reproduction, provided for the purpose of achieving live birth that results from assisted conception. Assisted conception means the formation of a human embryo outside the body with the intent to produce a live birth.

(c) "Child" means a live born individual of any age whose parentage may be determined under this act or other law.

(d) "Collaborative reproduction" involves artificial insemination with donor sperm and any assisted reproduction in which an individual other than the intended parent provides genetic material or agrees to act as a gestational carrier. It can include, but is not limited to, (1) attempts by the intended parent to create a child through means of a gestational arrangement, with or without the involvement of a donor, and (2) assisted reproduction involving a donor where a gestational carrier is not used.

(e) "Compensation" means payment of any valuable consideration for time, effort, pain and/or risk to health in excess of reasonable medical and ancillary costs.

(f) "Donor" means an individual who produces gametes and provides them to another person other than the individual's spouse for use in assisted reproduction, whether or not for compensation, and who does not intend to be a parent. Donor also includes an individual with dispositional control of an embryo who provides it to another person for the purpose of gestation and relinquishes all present and future parental and inheritance rights and obligations to a resulting child.

(g) "Embryo" means a cell or group of cells containing a diploid complement of chromosomes or group of such cells, not a gamete or gametes, that has the potential to develop into a live born human being if transferred into the body of a woman under conditions in which gestation may be reasonably expected to occur.

(h) "Embryo transfer" means all medical and laboratory procedures that are necessary to effectuate the transfer of an embryo into the uterine cavity.

(i) "Gamete" means a cell containing a haploid complement of DNA that has the potential to form an embryo when combined with another gamete. Sperm and eggs are gametes. A gamete may consist of nuclear DNA from one human being combined with the cytoplasm, including cytoplasmic DNA, of another human being.

(j) "Gestational agreement" is a contract between an intended parent and a gestational carrier intended to result in a live birth where the child will be the legal child of the intended parent.

(k) "Gestational carrier" means an adult person not an intended parent, who enters into a gestational agreement to bear a child who will be the legal child of the intended parent so long as she has not provided the egg used to conceive the resulting child.

S. 17--A 3

(l) "Gestational carrier arrangement" means the process by which a gestational carrier attempts to carry and give birth to a child created through assisted reproduction so long as the gestational carrier has not provided the egg used to conceive the resulting child.

(m) "Health care practitioner" means an individual licensed or certified under title eight of the education law acting within his or her scope of practice.

(n) "Intended parent" is an individual who manifests the intent as provided in this act to be legally bound as the parent of a child resulting from assisted reproduction or collaborative reproduction.

(o) "In vitro fertilization" means the formation of a human embryo outside the human body.

(p) "Parent" means an individual who has established a parent-child relationship under this act or other law and includes, but is not limited to: (1) a child's birth parent who is not a gestational carrier or the spouse of the gestational carrier; (2) a child's genetic parent who is not the donor; (3) an individual who has legally adopted the child; (4) an individual who is a parent of the child pursuant to a legal presumption; (5) an individual who is a parent of the child pursuant to an acknowledgment or judgment of parentage pursuant to article two of this act or other law; (6) an individual who is a parent of the child pursuant to article three or four of this act.

(q) "Participant" means an individual who provides a biological or genetic component of assisted reproduction, an intended parent, and the spouse of an intended parent or gestational carrier. Gestation is a biological component within the meaning of this definition.

(r) "Record" means information inscribed in a tangible medium or stored in an electronic or other medium that is retrievable in perceivable form.

(s) "Retrieval" means the procurement of eggs or sperm from a gamete provider.

(t) "Spouse" means an individual married to another, or who has a legal relationship entered into under the laws of the United States or of any state, local or foreign jurisdiction, which is substantially equivalent to a marriage, including a civil union or domestic partnership.

(u) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

(v) "Transfer" means the placement of an embryo or gametes into the body of a woman with the intent to achieve pregnancy and live birth.

PART 2

JUDGMENT OF PARENTAGE Section 581-201. Judgment of parentage.

581-202. Proceeding for judgment of parentage of a child born

through assisted reproduction.

581-203. Proceeding for judgment of parentage of a child born

pursuant to a gestational carrier arrangement.

581-204. Judgment of parentage for intended parents who are

spouses.

581-205. Jurisdiction.

§ 581-201. Judgment of parentage. (a) A civil proceeding may be maintained to adjudicate the parentage of a child under the circumstances set forth in this article. This proceeding is governed by the civil practice law and rules.

S. 17--A 4

(b) A judgment of parentage may be issued prior to birth but shall not become effective until the birth of the child.

(c) A judgment of parentage shall be issued by the court upon the petition of (1) a child, or (2) a parent or a presumed parent, or (3) a participant, or (4) the support/enforcement agency or other governmental agency authorized by other law, or (5) a representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, incapacitated, or a minor, in order to legally establish the child-parent relationship of either a child born through assisted reproduction under part three of this article or a child born pursuant to a gestational carrier arrangement under part four of this article.

§ 581-202. Proceeding for judgment of parentage of a child born through assisted reproduction. (a) A proceeding for a judgment of parentage may be commenced:

(1) if the intended parent resides in New York state, in the county where the intended parent resides any time after pregnancy is achieved or in the county where the child was born or resides; or

(2) if the intended parent and child do not reside in New York state, up to ninety days after the birth of the child in the county where the child was born.

(b) The petition for a judgment of parentage must be verified and include the following:

(1) a statement that the intended parent has been a resident of the state for at least ninety days or if the intended parent is not a New York state resident, that the child was born in the state; and

(2) a statement from the gestating parent that the gestating parent became pregnant as a result of the donation of the gamete or embryo and a representation of non-access during the time of conception; and

(3) a statement that the non-gestating intended parent consented to assisted reproduction pursuant to section 581-304 of this article; and

(4) proof of donor's donative intent.

(c) The following shall be deemed sufficient proof of a donor's donative intent for purposes of this section:

(1) in the case of an anonymous donor or where gametes or embryos have previously been relinquished to a gamete or embryo storage facility, a statement from the gamete or embryo storage facility with custody of the gametes or embryos that the donor does not retain any parental or proprietary interest in the gametes or embryos; or

(2) in the case of a donation from a known donor, a record from the gamete or embryo donor acknowledging the donation and confirming that the donor has no parental or proprietary interest in the gametes or embryos. The record shall be signed by the gamete or embryo donor:

i. before a notary public, or

ii. before two witnesses who are not the intended parents, or

iii. before the health care provider, who supervised the donation.

(3) In the absence of a record pursuant to paragraph two of this subdivision, notice shall be given to the donor at least twenty days prior to the proceeding by delivery of a copy of the petition and notice. Upon a showing to the court, by affidavit or otherwise, on or before the date of the proceeding or within such further time as the court may allow, that personal service cannot be effected at the donor's last known address with reasonable effort, notice may be given, without prior court order therefore, at least twenty days prior to the proceeding by registered or certified mail directed to the donor's last known

S. 17--A 5

address. Notice by publication shall not be required to be given to a donor entitled to notice pursuant to the provisions of this section.

(4) Notwithstanding the above, where sperm is provided under the supervision of a health care provider to someone other than the sperm provider's intimate partner or spouse without a record of the sperm provider's intent to parent, the sperm provider is presumed to be a Donor and notice is not required.

(d) Where a petition for parentage demonstrates the consent of the intended parent to assisted reproduction, the donative intent of the gamete or embryo donor and that the pregnancy resulted from the donation, the court shall issue a judgment of parentage:

(1) declaring, that upon the birth of the child, the intended parent is the only legal parent of the child; and

(2) ordering the intended parent to assume sole responsibility for the maintenance and support of the child immediately upon the birth of the child; and

(3) ordering that upon the birth of the child, a copy of the judgment of parentage be served on the (i) department of health or New York city department of mental health and hygiene, or (ii) registrar of births in the hospital where the child is born and directing that the hospital report the parentage of the child to the appropriate department of health in conformity with the court order. If an original birth certificate has already issued, the court shall issue an order directing the appropriate department of health to amend the birth certificate in an expedited manner and seal the previously issued birth certificate.

§ 581-203. Proceeding for judgment of parentage of a child born pursuant to a gestational carrier arrangement. (a) The proceeding may be commenced at any time after the gestational agreement has been executed by all of the parties. Any party to the gestational agreement not joining in the petition must be served with notice of the proceeding. Failure to respond to the notice shall be considered a default and no further notice shall be required.

(b) The petition for a judgment of parentage must be verified and include the following: