Allow Surrogacy Contracts in NY

Section 1. This act shall be known as the "New York gestational carrier agreement act".

§ 2. Legislative intent. The legislature finds and declares that gestational carrier agreements executed pursuant to this act are in accord with the public policy of this state. It is the intent and purpose of the legislature to establish consistent standards and procedural safeguards to promote the best interests of the children who will be born as a result of gestational carrier agreements, protect all parties involved in gestational carrier agreements and recognize the technological advances in assisted reproductive medicine in ways that allow the use of these advances by intended parents and gestational carriers according to the public policy of New York.

§ 3. Article 8 of the domestic relations law is REPEALED and a new article 8 is added to read as follows:

ARTICLE 8

GESTATIONAL CARRIER AGREEMENTS

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

[ ] is old law to be omitted.

LBD00009-02-9

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Section 121. Definitions.

122. Rights of parentage.

123. Eligibility.

124. Requirements for a gestational carrier agreement.

125. Duty to support.

126. Establishment of parent-child relationship.

127. Remuneration.

128. Prohibitions.

129. Certain provisions of law not applicable to gestational

carrier agreements.

130. Effect of an order of parentage.

§ 121. Definitions. As used in this article:

1. "Advanced practice nurse" means a person certified in accordance with the provisions of:

(a) section sixty-nine hundred ten of the education law (nurse practitioner practice);

(b) section sixty-nine hundred eleven of the education law (clinical nurse specialist);

(c) article one hundred forty of the education law (professional midwifery practice act); or

(d) as a nurse anesthetist.

2. "Assisted reproductive technology" means procreative laboratory procedures involving human eggs or pre-embryos, including, but not limited to: in vitro fertilization; embryo transfer; gamete transfer; pronuclear stage transfer; and zygote transfer.

3. "Attorney" means a person licensed to practice law in New York or another state or the District of Columbia.

4. "Certified nurse midwife" means a midwife licensed by the state board of medical examiners as a certified nurse midwife pursuant to the provisions of article one hundred forty of the education law.

5. "Donor" means a person who contributes gametes for use in assisted reproduction. The term does not include an intended parent who contributes gametes to be used in assisted reproduction pursuant to a valid gestational carrier agreement.

6. "Fertilization" means the initial union of the sperm and the egg.

7. "Gamete" means sperm or egg.

8. "Gestational carrier" means a woman twenty-one years of age or older who agrees to become pregnant for an intended parent by assisted reproductive technology without the use of her own egg.

9. "Gestational carrier agreement" means the written contract between the gestational carrier and the intended parent, pursuant to which the intended parent agrees to become the legal parent of a child created through assisted reproductive technology and carried by the gestational carrier.

10. "Implantation" means when the fertilized egg adheres to the gestational carrier's uterine wall.

11. "Intended parent" means a person who enters into a gestational carrier agreement with a gestational carrier pursuant to section one hundred twenty-four of this article, pursuant to which the person shall be the legal parent of the resulting child. The term shall include persons who are single, married, partners in a civil union or domestic partnership, and couples who are not married or in a civil union or domestic partnership. Any reference to an intended parent shall include both spouses or partners in a civil union or domestic partnership. This term shall include the intended mother, the intended father, the

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intended mother and intended father, the intended mother and intended mother, or the intended father and intended father.

12. "In vitro fertilization" means all medical and laboratory procedures that are required to effectuate the formation of a human embryo outside the human body.

13. "Medical evaluation" means an evaluation and consultation by a physician, a certified nurse midwife, or an advanced practice nurse.

14. "Order of parentage" means a judgment determining parentage pursuant to the provisions of a gestational carrier agreement that satisfies the provisions of section one hundred twenty-six of this article.

15. "Physician" means a person licensed to practice medicine in New York pursuant to article one hundred thirty-one of the education law, or licensed to practice in any one of the United States or its territories, or the District of Columbia.

16. "Pre-embryo" is a fertilized egg prior to fourteen days of development.

17. "Pre-embryo transfer" means all medical and laboratory procedures that are necessary to effectuate the transfer of a pre-embryo into the uterine cavity.

18. "Psychological evaluation" means an evaluation and consultation by a clinical social worker, psychotherapist, or psychiatrist licensed by the state of New York or licensed to practice in any one of the United States or its territories, or the District of Columbia.

19. "Reasonable expenses" means medical, hospital, counseling or other similar expenses incurred in connection with the gestational carrier agreement, reasonable attorney fees and costs for legal services in connection with the gestational carrier agreement, and the reasonable living expenses of the gestational carrier during her pregnancy including payments for reasonable food, clothing, medical expenses, shelter, and religious, psychological, vocational, or similar counseling services during the period of the pregnancy and during the period of postpartum recovery. These payments may be made directly to the gestational carrier or on the gestational carrier's behalf to the supplier of the goods or services pursuant to the gestational carrier agreement.

§ 122. Rights of parentage. 1. Provided that the gestational carrier and the intended parent satisfy the eligibility requirements set forth in section one hundred twenty-three of this article and the gestational carrier agreement satisfies the requirements set forth in section one hundred twenty-four of this article, immediately upon the birth of the child:

(a) The intended parent shall be the legal parent of the child;

(b) In the case of an intended parent who is a spouse or partner in a civil union or domestic partnership, both spouses or partners shall be the parents of the child; and

(c) Neither the gestational carrier nor her spouse or partner, if any, shall be the legal parent of the child.

2. In the event of a medical or laboratory error in which the resulting child is not genetically related to an intended parent whose gamete was intended to be used under the agreement, the intended parent shall be the parent of the child where the gestational carrier agreement satisfies the requirements set forth in section one hundred twenty-four of this article, unless otherwise determined by a court of competent jurisdiction pursuant to a complaint challenging parentage filed by a genetic parent within one hundred twenty days of birth.

§ 123. Eligibility. 1. A gestational carrier shall be deemed to have satisfied the requirements of section one hundred twenty-four of this

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article if, at the time the gestational carrier agreement is executed, she:

(a) is at least twenty-one years of age;

(b) has given birth to at least one child;

(c) has completed a medical evaluation approving her suitability to serve as a gestational carrier;

(d) has completed a psychological evaluation approving her suitability to serve as a gestational carrier; and

(e) has retained an attorney, independent of the intended parent, but for whose services the intended parent may pay, who has consulted with her about the terms of the gestational carrier agreement and the potential legal consequences of being a gestational carrier under the terms of this agreement.

2. The intended parent shall be deemed to have satisfied the requirements of section one hundred twenty-four of this article if, at the time the gestational carrier agreement is executed, the intended parent:

(a) has completed a psychological evaluation approving the intended parent's suitability to participate in a gestational carrier agreement; and

(b) is represented by an attorney who consulted with the intended parent about the terms of the gestational carrier agreement and the potential legal consequences of the agreement.

§ 124. Requirements for a gestational carrier agreement. 1. A gestational carrier agreement shall satisfy the following requirements:

(a) it is in writing and executed by the gestational carrier, her spouse or partner in a civil union or domestic partnership, if any, and each intended parent. If the intended parent is married or in a domestic partnership or civil union at the time the intended parent enters the agreement, both spouses or partners shall meet the requirements of subdivision two of section one hundred twenty-three of this article and shall be required to enter into the agreement as intended parents. If the intended parent is not married or in a civil union or domestic partnership, no other person shall be deemed a legal parent of the child unless that person meets the requirements of subdivision two of section one hundred twenty-three of this article and duly executes the agreement;

(b) it is executed after the required medical and psychological screenings of the gestational carrier and the psychological screening of the intended parent, but prior to the commencement of any other necessary medical procedures in furtherance of the implantation of the preembryo; and

(c) the gestational carrier and her spouse or partner, if any, and the intended parent shall have been represented by separate attorneys in all matters relating to the gestational carrier agreement and each attorney provides an affidavit of such representation.

2. A gestational carrier agreement shall provide:

(a) express terms that the gestational carrier shall:

(1) undergo pre-embryo transfer and attempt to carry and give birth to the child;

(2) surrender custody of the child to the intended parent immediately upon the child's birth; and

(3) have the right to medical care for the pregnancy, labor, delivery, and postpartum recovery provided by a physician, advance practice nurse, or certified nurse midwife of her choice, after she notifies, in writing, the intended parent of her choice.

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(b) an express term that, if the gestational carrier is married or in a civil union or domestic partnership, the spouse or partner agrees to the obligations imposed on the gestational carrier pursuant to the terms of the gestational carrier agreement and to surrender custody of the child to the intended parent immediately upon the child's birth; and

(c) express terms that the intended parent shall:

(1) accept custody of the child immediately upon the child's birth; and

(2) assume sole responsibility for the support of the child immediately upon the child's birth.

3. A gestational carrier agreement shall be presumed enforceable if:

(a) it satisfies the contractual requirements set forth in subdivision one of this section; and

(b) it contains at a minimum each of the terms set forth in subdivision two of this section.

4. In addition, an enforceable gestational carrier agreement shall include a provision setting forth the financial responsibilities of the parties and shall include a provision that the intended parent shall pay the gestational carrier's reasonable expenses, as defined in section one hundred twenty-seven of this article, unless expressly waived, in whole or in part, in writing by the gestational carrier.

5. In the event that any of the requirements of this section are not met, a court of competent jurisdiction shall determine parentage based on the parties' intent.

§ 125. Duty to support. 1. The establishment of the parent and child relationship pursuant to a valid gestational carrier agreement shall be the basis upon which an action for child support may be brought against the intended parent and acted upon by the court without further evidentiary proceedings.

2. The breach of the gestational carrier agreement by the intended parent shall not relieve the intended parent of the support obligations imposed by the parent and child relationship created by the provisions of section one hundred twenty-six of this article.

3. Unless a person who donates gametes for use in assisted reproduction enters into a written contract to the contrary, the gamete donor is treated in law as if the gamete donor were not the legal parent of a child thereby conceived and shall have no rights or duties stemming from the conception of the child.