Legalize Surrogacy, Assisted Parentage

Part one

GENERAL PROVISIONS

-Section 581-101 establishes the purpose of the bill.

-Section 581-102 establishes definitions used throughout article 5-C.

Part two

JUDGMENT OF PARENTAGE

-Section 581-201 establishes civil proceedings to adjudicate the legal parentage of a child born via assisted reproduction or a surrogacy agreement (i.e. judgments of parentage).

-Section 581-202 establishes the conditions under which a proceeding for judgment of parentage may be commenced and adjudicated to determine parentage of a child conceived through assisted reproduction.

-Section 581-203 establishes the conditions under which a proceeding for judgment of parentage may be commenced and adjudicated to determine parentage of a child conceived pursuant to a surrogacy agreement.

-Section 581-204 allows parents who are each others' spouses to obtain a judgment of parentage, notwithstanding any other legal presumptions of parentage.

-Section 581-205 states that court records related to judgments of parentage are sealed, but parties to the proceeding and resulting chil- dren have the right to inspect the record, including, but not limited to, the name of the person acting as surrogate and any known donors.

-Section 581-206 allows judgment of parentage proceedings to be initi- ated in either Supreme Court or Family Court.

Part three

CHILD OF ASSISTED REPRODUCTION

-Section 581-301 clarifies that Article 5-C does not apply to the birth of a child conceived through sexual intercourse.

-Section 581-302 clarifies that a donor in not a legal parent of a child conceived through assisted reproduction.

-Section 581-303 clarifies that a person who provides gametes for, or consents to, assisted reproduction with the intent to be a parent of the resulting child with the consent of the gestating parent is a legal parent of the resulting child.

-Section 581-304 establishes when consent to assisted reproduction is presumed and how to prove consent when it is not presumed.

-Section 581-305 places limitations on a spouse's ability to dispute the parentage of a child born through assisted reproduction.

-Section 581-306 discusses the effect of embryo disposition agreements between intended parents which transfer legal rights and dispositional control of the embryo(s) to one intended parent.

-Section 581-307 clarifies that a person who consented to be a parent by assisted reproduction who dies before the transfer of gametes is not the legal parent of any resulting children unless they consented in a signed record to be the parent to children conceived through assisted reprod- uction after their death.

Part four

SURROGACY AGREEMENT

-Section 581-401 authorizes surrogacy agreements that meet the require- ments of this article, establishes that such agreements may provide for compensation, and clarifies that a surrogacy agreement shall not apply to the birth of a child conceived through sexual intercourse.

-Section 581-402 establishes the eligibility requirements for persons acting as surrogates and intended parents who wish to enter surrogacy agreements, including the requirement that the person acting as surro- gate and at least one intended parent be United States citizens or lawful permanent residents.

-Section 581-403 establishes the requirements that must be met for a surrogacy agreement to be enforceable.

-Section 581-404 clarifies that if the person acting as surrogate gets married after executing a surrogacy agreement, or intended parents get separated or divorced after executing a surrogacy agreement, it does not affect the validity of the agreement or any of the rights, duties or responsibilities outlined in the agreement.

-Section 581-405 provides that any party to a surrogacy agreement may terminate the agreement before the person acting as surrogate has become pregnant.

-Section 581-406 clarifies that upon birth of a child under an enforcea- ble surrogacy agreement, each intended parent is the legal parent of the child and neither the person acting as surrogate or their spouse (if any) is the legal parent.

-Section 581-407 establishes that surrogacy agreements that don't meet the material requirements of Article 5-C are not enforceable, and in such cases the court will determine parentage based on the intent of the parties, taking into account the best interests of the child.

-Section 581-408 establishes that if there is no surrogacy agreement, the court will determine parentage of the child under New York law.

-Section 581-409 gives the Supreme Court jurisdiction to hear any dispute related to a surrogacy agreement other than disputes as to parentage, and clarifies that there is no specific performance remedy that would require a person acting as surrogate to either be impregnat- ed, terminate or continue the pregnancy, or to reduce or retain the number of fetuses or embryos they are carrying.

Part five

PAYMENT TO DONORS AND PERSONS ACTING AS SURROGATES

-Section 581-501 establishes that donors who enter into valid agreements to be a donor may reimbursed for economic losses incurred in connection with donation.

-Section 581-502 establishes that compensation to a donor or person acting as surrogate may be paid based on medical risks, physical discom- fort, inconvenience and the responsibilities they are undertaking in connection with their participation in assisted reproduction. Such compensation must be reasonable and negotiated in good faith between parties, and cannot be conditioned upon the purported quality or traits of the gametes or embryos, or the actual genotypic or phenotypic charac- teristics of the donor or any resulting children.

Part six

SURROGATES' BILL OF RIGHTS

This part enumerates rights that apply to any person acting as surrogate in New York, and establishes that unless otherwise provided by law, any written or verbal agreement purporting to waive or limit any of the rights enumerated in this part are void as against public policy.

The rights enumerated in this part include: health and welfare deci- sions; independent legal counsel; health insurance and medical costs; counseling; life insurance; and termination of surrogacy agreements.

Part seven

MISCELLANEOUS PROVISIONS

-Section 581-701 establishes that the article is to be construed liber- ally to secure the beneficial interests and purposes thereof for the best interests of the child.

-Section 581-702 is a severability clause.

-Section 581-703 establishes that the term "parent" as used in section 70 of the Domestic Relations Law includes parents established pursuant to this article.

-Section 581-704 establishes that unless context indicates otherwise, singular words may be interpreted as plural and vice versa.

Section 2 of the bill repeals section 73 of the Domestic Relations Law.

Sections 3 through 6 of the bill amend Article 8 of the Domestic Relations Law to no longer apply the legal prohibition on surrogacy contracts to surrogacy agreements authorized and regulated under section 1 of this bill, but continuing to render void and enforceable so called "traditional" surrogacy agreements where the person acting as surrogate provided the egg used in conceiving the resulting child.

Section 7 of the bill amends section 4135-b of the Public Health Law to update and modernize terminology throughout the section to reflect same- sex parents and conform the provisions of the section with the judgments of parentage and surrogacy agreements authorized and regulated in section 1 of this bill.

Section 8 of the bill amends the heading of article 8 of the Domestic Relations Law.

Section 9 of the bill adds a new article 44 to the General Business Law entitled "Regulation of Surrogacy Programs."

-Section 1400 establishes definitions used throughout the newly-created article.

-Section 1401 applies the newly-created article to any agency, agent, business or individual engaged in, arranging or facilitating trans- actions contemplated in a surrogacy agreement if the program does busi- ness in New York, a person acting as surrogate party to a surrogacy agreement resides in New York during the term of the agreement, or any medical procedure under the surrogacy agreement is performed in New York.

-Section 1402 states that surrogacy programs to which the newly-created article applies: must keep all funds paid by or on behalf of intended parents in separate, licensed escrow funds; may not be owned or managed by any attorney representing a party to a surrogacy agreement; may not make or receive paid referrals to attorneys representing any party to a surrogacy agreement, or any health care providers providing health services to any party to a surrogacy agreement; must be licensed to operate in New York State pursuant to regulations promulgated by the Department of Financial Services in consultation with the Department of Health; and must ensure that all potential parties to a surrogacy agree- ment are provided with written notice of the Surrogates' Bill of Rights enumerated in setions 581601 to 581-607 of the Family Court Act.

-Section 1403 directs the Department of Financial Services, in consulta- tion with the Department of Health to promulgate regulations to imple- ment the requirements of this newly-created article, and annually report to the Legislature regarding the practices of surrogacy programs and all business transactions related to surrogacy, along with recommendations for any necessary legislative changes.

Section 10 of the bill creates a new article 25-B of the Public Health Law entitled "Gestational Surrogacy.

-Section 2599-C requires the Commissioner of the Department of Health to promulgate regulations on the practice of gestational surrogacy, includ- ing establishing guidelines and procedures for obtaining fully informed consent from potential persons acting as surrogates, developing and distributing informational material relating to gestational surrogacy, and establishing a voluntary central tracking registry of persons acting as surrogates.

Section 11 of the bill adds a new subdivision 4 to section 4365 of the Public Health Law to require the Commissioner of the Department of Health, in consultation with the Transplant Council, to promulgate regu- lations on the donation of ova (i.e. eggs), including establishing guidelines and procedures for obtaining fully informed consent from donors, developing and distributing informational material relating to egg donation, and establishing a voluntary central tracking registry of egg donors.

Section 12 of the bill is the effective date.

Justification

New York law has failed to keep pace with medical advances in assisted reproduction, causing uncertainty about who the legal parents of a child are upon birth. In many cases, the parentage of children created through donated sperm, eggs and embryos is unsettled or open to attack at the time of the child's birth and thereafter. Confusion or uncertainty regarding the parental rights of donors and intended parents (both genetic and non-genetic) who participate in the conception of the child through assisted reproduction is detrimental to the child, and secure family relations. Where children are born to a person acting as surrogate the parentage of the intended parents may not be recognized under current law. This is not only detrimental to the child; it also causes confusion in many critical situations. For exam- ple, a hospital does not know who must give consent when a newborn requires medical procedures. This bill will provide clear and decisive legal procedures to ensure that children born through assisted reprod- uction have secure and legally recognized parental relationships with their intended parents. The law will make it clear that donors do not have parental rights or obligations and that those rights and obli- gations reside with the intended parents.

Importantly, this legislation lifts the existing ban on surrogacy contracts to permit enforceable surrogacy agreements and sets forth the criteria for such agreements. When all of the requirements set forth in the law are met, the intended parents can seek a "Judgment of Parentage" from a court, prior to the birth of the child, which becomes effective immediately upon birth. The requirements are designed to ensure that all parties enter into the agreement on an equal footing and with full know- ledge of their duties and obligations. For example, all parties must be represented by independent legal counsel, and the agreement may not limit the right of the person acting as surrogate to make their own healthcare decisions.

Because of existing New York laws, couples facing infertility and same- sex couples are forced to go out of state in order to have a child with the assistance of a person acting as surrogate. This is overly burden- some to the parents, who have often struggled for many years to have a child. Having an out-of-state person acting as surrogate may make it difficult, if not impossible, for the parents to fully participate in the pregnancy by attending doctor's appointments, etc. It also requires the participants to use out-of-state clinics and medical professionals despite the fact that New York is home to world-class medical facilities and fertility professionals.

New York appellate courts have repeatedly called upon the Legislature to act to provide much needed clarity to the essential question of who is a parent. The need to answer that call is more important today than ever as increasing numbers of children are being conceived and born through assisted reproduction. This bill clarifies the issue of who is a parent and establishes clear legal procedures which ensure that each child's relationship to his or her parent(s) is legally recognized from birth. As the New York Court of Appeals held in Brooke S.B. v Elizabeth A.C.O biology and adoption are not the only touchstones to determine parent- age. This legislation provides a framework for determining the parentage of the large number of children unprotected under existing New York state law.

Prior legislative history

S.0017-A of 2017-2018 (Hoylman): Died on 3rd Reading; Died in Judiciary A.6959-A of 2017-2018 (Paulin): Died in Judiciary S.2765 of 2015-2016 (Hoylman): Died in Children & Families A.4319 of 2015-2016 (Paulin): Died in Judiciary 5.4617 of 2013-2014 (Hoylman) Died in Children & Families A.6701 of 2013-2014 (Paulin): Died in Judiciary

Fiscal implication

To be determined.

Effective date

This act shall take effect on the one hundred twentieth day after it shall have become a law. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized to be made on or before such date.