Legalize Surrogacy, Clarify Parent Rights

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

ARTICLE 5-C

JUDGMENTS OF PARENTAGE OF CHILDREN CONCEIVED THROUGH ASSISTED

REPRODUCTION OR PURSUANT TO SURROGACY AGREEMENTS PART 1. General provisions (581-101 - 581-102)

2. Judgment of parentage (581-201 - 581-206)

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

4. Surrogacy agreement (581-401 - 581-409)

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

[ ] is old law to be omitted.

LBD01279-28-9

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5. Payment to donors and persons acting as surrogates (581-501 -

581-502)

6. Surrogates' bill of rights (581-601 - 581-607)

7. Miscellaneous provisions (581-701 - 581-704)

PART 1

GENERAL PROVISIONS Section 581-101. Purpose.

581-102. Definitions.

§ 581-101. 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 assisted reproduction except for children born to a person acting as surrogate who contributed the gametes used in conception. No fertilized egg, embryo or fetus shall have any independent rights under the laws of this state, nor shall any fertilized egg, embryo or fetus be viewed as a child under the laws of this state.

§ 581-102. 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) "Child" means a born individual of any age whose parentage may be determined under this act or other law.

(c) "Compensation" means payment of any valuable consideration in excess of reasonable medical and ancillary costs.

(d) "Donor" means an individual who does not intend to be a parent who produces gametes and provides them to another person, other than the individual's spouse, for use in assisted reproduction. The term does not include a person who is a parent under part three of this article. Donor also includes an individual who had dispositional control of an embryo who then transfers dispositional control and relinquishes all present and future parental and inheritance rights and obligations to a resulting child.

(e) "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 person under conditions in which gestation may be reasonably expected to occur.

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

(g) "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.

(h) "Surrogacy agreement" is an agreement between at least one intended parent and a person acting as surrogate intended to result in a live birth where the child will be the legal child of the intended parents.

(i) "Person acting as surrogate" means an adult person, not an intended parent, who enters into a surrogacy agreement to bear a child who will be the legal child of the intended parent or parents so long as the person acting as surrogate has not provided the egg used to conceive the resulting child.

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

(k) "Intended parent" is an individual who manifests the intent to be legally bound as the parent of a child resulting from assisted reproduction or a surrogacy agreement provided he or she meets the requirements of this article.

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

(m) "Parent" means an individual who has established a parent-child relationship under this act or other law.

(n) "Participant" is an individual who either: provides a gamete that is used in assisted reproduction, is an intended parent, is a person acting as surrogate, or is the spouse of an intended parent or person acting as surrogate.

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

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

(q) "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.

(r) "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.

(s) "Transfer" means the placement of an embryo or gametes into the body of a person 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

conceived through assisted reproduction.

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

conceived pursuant to a surrogacy agreement.

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

spouses.

581-205. Inspection of records.

581-206. Jurisdiction, and exclusive continuing 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.

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

(c) A petition for a judgment of parentage or nonparentage of a child conceived through assisted reproduction may be initiated by (1) a child, or (2) a parent, or (3) a participant, or (4) a person with a claim to parentage, or (5) the support/enforcement agency or other governmental agency authorized by other law, or (6) 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

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through assisted reproduction under part three of this article or a child born pursuant to a surrogacy agreement under part four of this article.

§ 581-202. Proceeding for judgment of parentage of a child conceived through assisted reproduction. (a) A proceeding for a judgment of parentage with respect to a child conceived through assisted reproduction 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.

(c) Where a petition includes the following statements, the court must adjudicate any intended parent to be the parent of the child:

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

(2) a statement from the gestating intended parent that the gestating intended parent became pregnant as a result of assisted reproduction; and

(3) in cases where there is a non-gestating intended parent, a statement from the gestating intended parent and non-gestating intended parent that the non-gestating intended parent consented to assisted reproduction pursuant to section 581-304 of this article; and

(4) proof of any donor's donative intent.

(d) 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 or in the presence of a health care practitioner, a statement from the gamete or embryo storage facility or health care practitioner 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, either: a. 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 gestating intended parent and the gamete or embryo donor. The record may be, but is not required to be, signed:

(i) before a notary public, or

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

(iii) before a health care practitioner; or

b. clear and convincing evidence that the gamete or embryo donor agreed, prior to conception, with the gestating parent that the donor has no parental or proprietary interest in the gametes or embryos.

(3) In the absence of evidence 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 proceed-

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ing by registered or certified mail directed to the donor's last known 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 practitioner 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.

(e) In cases not covered by subdivision (c) of this section, the court shall adjudicate the parentage of the child consistent with part three of this article.

(f) Where the requirements of subdivision (c) of this section are met or where the court finds the intended parent to be a parent under subdivision (e) of this section, the court shall issue a judgment of parentage:

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

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

(3) if there is a donor, ordering that the donor is not a parent of the child; and

(4) 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 conceived pursuant to a surrogacy agreement. (a) The proceeding may be commenced at any time after the surrogacy agreement has been executed by all of the parties. Any party to the surrogacy agreement not joining in the petition must be served with notice of the proceeding.

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

(1) a statement that the person acting as surrogate or at least one of the intended parents has been a resident of the state for at least ninety days at the time the surrogacy agreement was executed; and

(2) a certification from the attorney representing the intended parent or parents and the attorney representing the person acting as surrogate that the requirements of part four of this article have been met; and

(3) a statement from all parties to the surrogacy agreement that they entered into the surrogacy agreement knowingly and voluntarily.

(c) Where a petition satisfies subdivision (b) of this section the court shall issue a judgment of parentage, without additional proceedings or documentation: