A06701 Summary:

BILL NOA06701
 
SAME ASSAME AS S04617
 
SPONSORPaulin (MS)
 
COSPNSRTitone, Lavine, Zebrowski, Weprin, Robinson, Galef, Jaffee, Otis, Scarborough, Cook, Stirpe, Benedetto, Bronson, Brindisi, Mosley, Walter, Ortiz, Dinowitz, Rosenthal
 
MLTSPNSRBrennan, Gottfried, Markey, Mayer, Millman, Schimel, Skartados, Wright
 
Add Art 5-C Parts 1 - 7 SS581-101 - 581-703, Fam Ct Act; rpld S73 & Art 8, Dom Rel L
 
Establishes the child-parent security act to legally establish a child's relationship with his or her parents.
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A06701 Actions:

BILL NOA06701
 
04/16/2013referred to judiciary
01/08/2014referred to judiciary
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A06701 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A6701
 
SPONSOR: Paulin (MS)
  TITLE OF BILL: An act to amend the family court act, in relation to establishing the child-parent security act; and to repeal section 73 and article 8 of the domestic relations law, relating to legitimacy of chil- dren born by artificial insemination and surrogate parenting contracts   PURPOSE OR GENERAL IDEA OF BILL: To legally establish a child's relationship to his or her parents.   SUMMARY OF SPECIFIC PROVISIONS: Section 1 adds a new article 5-C to the Family Court Act, enacting the "Child-Parent Security Act." Part one of the article provides defi- nitions. Part two establishes the requirements and procedure for obtain- ing a judgment of parentage of a child born: through assisted reprod- uction or artificial insemination, pursuant to a gestational carrier arrangement, and for a child whose parentage is established pursuant to section 581-601 of article 581-C. Part three sets forth provisions for determining the parentage of a child of assisted reproduction or artifi- cial insemination. Part four authorizes gestational carrier agreements and sets forth the requirements of such agreements. Part five sets forth the conditions for reimbursement and compensation to donors and gesta- tional carriers. Part six provides for determination of parenthood where an individual can demonstrate by clear and convincing evidence that the parent of the child consented to the formation of a parent- child relationship with the child, the person resided in the same house- hold with the child for a length of time sufficient to have established a parental relationship with the child, the person performed parental functions to a significant degree, and the person formed a pa rent-child bond with the child. Section 2 repeals section 73 of the Domestic Relations Law. Section 3 repeals Article 8 of the Domestic Relations Law. Section 4 provides 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, parentage created through these technolo- gies is not recognized under current law. This is not only detrimental to the child; it also causes confusion in many critical situations. For example, a hospital does not know who must give consent when a newborn requires medical procedures. Importantly, this legislation lifts the ban on surrogacy contracts to permit gestational carrier 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 obtain an "Order of Parentage" from a court prior to the birth of the child, so that upon birth, the intended parents are the legal parents. The requirements are designed to ensure that all parties enter into the agreement on equal footing and with full knowledge 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 carrier to make her own healthcare decisions. Because of New York's laws, couples facing infertility and same-sex couples are forced to go out of state in order to have a child via gestational carrier. This is overly burdensome to the parents, who have often already struggled for many years to have a child. Having an out- of-state gestational carrier does not allow 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. This legislation also establishes a legal procedure for a partner of a biological or adoptive parent who has formed a parental bond with a child after birth, with the consent of the biological or adoptive parent to be declared a parent. This will allow such an individual to continue to have a relationship with the child should the relationship with the biological or adoptive parent dissolve. The Child-Parent Security Act will provide clear and decisive legal procedures to ensure that each child's relationship to his or her parent(s) is legally recognized. The new legal procedures will take into consideration the best interests of the child and the need for clarity and stability in family relationships. It is crucial that New York updates its laws to reflect all the ways in which families are formed.   PRIOR LEGISLATIVE HISTORY: A10499, 2012, referred to judiciary.   FISCAL IMPLICATION: None   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 is authorized to be made on or before such date.
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A06701 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6701
 
                               2013-2014 Regular Sessions
 
                   IN ASSEMBLY
 
                                     April 16, 2013
                                       ___________
 
        Introduced by M. of A. PAULIN, TITONE, LAVINE, ZEBROWSKI, WEPRIN, ROBIN-
          SON,  GALEF,  JAFFEE,  OTIS,  MAISEL,  SCARBOROUGH,  GABRYSZAK,  COOK,
          BOYLAND -- Multi-Sponsored by -- M.  of A. GOTTFRIED, MARKEY, MILLMAN,
          ROSA, WRIGHT -- read once and referred to the Committee on Judiciary
 
        AN ACT to amend the family court act, in relation  to  establishing  the

          child-parent  security  act; and to repeal section 73 and article 8 of
          the domestic relations law, relating to legitimacy of children born by
          artificial insemination and surrogate parenting contracts
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. The family court act is amended by adding a new article 5-C
     2  to read as follows:
     3                                  ARTICLE 5-C
     4                          CHILD-PARENT SECURITY ACT
     5  PART 1 General provisions (581-101 - 581-103)
     6       2 Judgment of parentage (581-201 - 581-206)
     7       3 Child   of   assisted  reproduction  or  artificial  insemination
     8         (581-301 - 581-307)
     9       4 Gestational agreement (581-401 - 581-411)

    10       5 Payment to donors and gestational carriers (581-501 - 581-502)
    11       6 Formation of legal parent-child relationship after birth of child
    12         (581-601)
    13       7 Miscellaneous provisions (581-701 - 581-703)
 
    14                                   PART 1
    15                             GENERAL PROVISIONS
    16  Section 581-101. Short title.
    17          581-102. Purpose.
    18          581-103. Definitions.
    19    § 581-101. Short title. This article shall be known and may  be  cited
    20  as the "child-parent security act".
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05071-04-3

        A. 6701                             2
 
     1    §  581-102.  Purpose. The purpose of this article is to legally estab-
     2  lish a child's relationship to his or her parents.
     3    § 581-103. Definitions.  (a) "Artificial insemination" means insertion
     4  of  sperm into female reproductive organs by any means other than sexual
     5  intercourse, including intrauterine insemination,  with  the  intent  to
     6  cause a pregnancy.
     7    (b) "Assisted reproduction" includes all fertility treatments in which
     8  both  eggs  and  sperm  are  handled. In the foregoing context, the term
     9  includes, but is not limited to in-vitro fertilization and  transfer  of
    10  embryos including donated gametes or donated embryos.

    11    (c) "ART provider" means any entity which assists with assisted repro-
    12  ductive technology.
    13    (d)  "Assisted  reproductive  technology"  or  "ART" is any medical or
    14  scientific intervention, including, but not limited to, assisted reprod-
    15  uction, provided for the purpose of achieving live  birth  that  results
    16  from  assisted  conception. Assisted conception means the formation of a
    17  human embryo outside the body with the intent to produce a live birth.
    18    (e) "Child" means a live born individual of any  age  whose  parentage
    19  may be determined under this act or other law.
    20    (f) "Collaborative reproduction" involves artificial insemination with
    21  donor  sperm  and any assisted reproduction in which an individual other

    22  than the intended parent provides genetic material or agrees to act as a
    23  gestational carrier. It can include, but is not limited to, (1) attempts
    24  by the intended parent to create a child through means of a  gestational
    25  arrangement,  with  or  without  the  involvement  of  a  donor, and (2)
    26  assisted reproduction involving a donor where a gestational  carrier  is
    27  not used.
    28    (g)  "Compensation"  means  payment  of any valuable consideration for
    29  time, effort, pain and/or risk to health in excess of reasonable medical
    30  and ancillary costs.
    31    (h) "Donor" means an individual who produces eggs or  sperm  used  for
    32  assisted  reproduction  or  artificial  insemination, whether or not for

    33  consideration. Donor also includes an  individual  or  individuals  with
    34  dispositional  control of an embryo who provide it to another person for
    35  the purpose  of  gestation  and  relinquishes  all  present  and  future
    36  parental  and  inheritance  rights and obligations to a resulting child.
    37  The term does not include an intended parent who provides gametes to  be
    38  used for assisted reproduction or artificial insemination.
    39    (i)  "Embryo"  means  a  cell  or  group of cells containing a diploid
    40  complement of chromosomes or group  of  such  cells,  not  a  gamete  or
    41  gametes,  that has the potential to develop into a live born human being
    42  if transferred into the body  of  a  woman  under  conditions  in  which

    43  gestation may be reasonably expected to occur.
    44    (j) "Embryo transfer" means all medical and laboratory procedures that
    45  are  necessary  to effectuate the transfer of an embryo into the uterine
    46  cavity.
    47    (k) "Gamete" means a cell containing a haploid complement of DNA  that
    48  has  the  potential to form an embryo when combined with another gamete.
    49  Sperm and eggs are gametes. A gamete may consist of nuclear DNA from one
    50  human being combined with the cytoplasm, including cytoplasmic  DNA,  of
    51  another human being.
    52    (l)  "Gamete  provider" means an individual who provides sperm or eggs
    53  for use in assisted reproduction or artificial insemination.
    54    (m) "Gestational agreement" is a contract between intended parents and

    55  a gestational carrier intended to result in a live birth where the child
    56  will be the legal child of the intended parents.

        A. 6701                             3
 
     1    (n) "Gestational carrier"  means  an  adult  woman,  not  an  intended
     2  parent, who enters into a gestational agreement to bear a child who will
     3  be  the  legal  child  of  the  intended  parents so long as she has not
     4  provided the egg used to conceive the resulting child.
     5    (o)  "Gestational  carrier  arrangement"  means the process by which a
     6  gestational carrier attempts to carry and give birth to a child  created
     7  through assisted reproduction so long as the gestational carrier has not
     8  provided the egg used to conceive the resulting child.

     9    (p)  "Health care practitioner" means an individual licensed or certi-
    10  fied under title eight of the education law acting  within  his  or  her
    11  scope of practice.
    12    (q)  "Intended  parent"  is  an individual who manifests the intent as
    13  provided in this act to be legally  bound  as  the  parent  of  a  child
    14  resulting from assisted reproduction or collaborative reproduction.
    15    (r)  "In-vitro  fertilization"  means  the formation of a human embryo
    16  outside the human body.
    17    (s) "Medical evaluation" means an evaluation and consultation  with  a
    18  health care provider regarding the anticipated pregnancy.
    19    (t)  "Parent"  means  an individual who has established a parent-child

    20  relationship under this act or other law and includes, but is not limit-
    21  ed to: (1) a child's birth parent who is not a  gestational  carrier  or
    22  the  spouse of the gestational carrier; (2) a child's genetic parent who
    23  is not the donor; (3) an individual who has legally adopted  the  child;
    24  (4)  an  individual  who  is  a  parent of the child pursuant to a legal
    25  presumption; (5) an individual who is a parent of the child pursuant  to
    26  an  acknowledgment  or  judgment of parentage pursuant to article two of
    27  this act or other law; (6) an individual who is a parent  of  the  child
    28  pursuant to article three, four, or six of this act.
    29    (u)  "Participant"  means  an  individual who provides a biological or

    30  genetic component of assisted reproduction or  artificial  insemination,
    31  an  intended parent, and the spouse of an intended parent or gestational
    32  carrier. Gestation is a biological component within the meaning of  this
    33  definition.
    34    (v)  "Record"  means  information  inscribed  in  a tangible medium or
    35  stored in an electronic or other medium that is retrievable in perceiva-
    36  ble form.
    37    (w) "Retrieval" means the procurement of eggs or sperm from  a  gamete
    38  provider.
    39    (x)  "Spouse"  means  an  individual  married to another, or who has a
    40  legal relationship entered into under the laws of the United  States  or
    41  of  any  state,  local  or  foreign jurisdiction, which is substantially

    42  equivalent to a marriage, including a civil union or  domestic  partner-
    43  ship.
    44    (y) "State" means a state of the United States, the District of Colum-
    45  bia,  Puerto Rico, the United States Virgin Islands, or any territory or
    46  insular possession subject to the jurisdiction of the United States.
    47    (z) "Time of transfer" means the time at which a gamete or  embryo  is
    48  transferred  into  the  body  of a woman with the intent to produce live
    49  birth.
    50    (aa) "Transfer" means the placement of an embryo or gametes  into  the
    51  body of a woman with the intent to achieve pregnancy and live birth.
 
    52                                   PART 2
    53                            JUDGMENT OF PARENTAGE

    54  Section 581-201. Judgment of parentage.

        A. 6701                             4
 
     1          581-202. Proceeding  for  judgment  of parentage of a child born
     2                     through assisted reproduction or artificial insemina-
     3                     tion.
     4          581-203.  Proceeding  for  judgment of parentage of a child born
     5                     pursuant to a gestational carrier arrangement.
     6          581-204. Proceeding for judgment of parentage of a  child  whose
     7                     parentage  is established pursuant to section 581-601
     8                     of this article.
     9          581-205. Judgment of parentage  for  intended  parents  who  are
    10                     spouses.

    11          581-206. Jurisdiction.
    12    § 581-201. Judgment of parentage.  (a) A civil proceeding may be main-
    13  tained  to  adjudicate  the parentage of a child under the circumstances
    14  set forth in this article. This proceeding is governed by the  New  York
    15  civil practice law and rules.
    16    (b) A judgment of parentage may be issued prior to birth but shall not
    17  become effective until the birth of the child.
    18    (c)  A  judgment  of  parentage  shall be issued by the court upon the
    19  petition of (1) a child, or (2) a parent, or (3) a participant,  or  (4)
    20  the  Support/Enforcement  Agency or other governmental agency authorized
    21  by other law, or (5) a representative authorized by law to  act  for  an

    22  individual  who would otherwise be entitled to maintain a proceeding but
    23  who is deceased, incapacitated, or a minor, in order to  legally  estab-
    24  lish the child-parent relationship under the following circumstances:
    25    (i) A child born through assisted reproduction or artificial insemina-
    26  tion under part three of this article; or
    27    (ii)  A child born pursuant to a gestational carrier arrangement under
    28  part four of this article; or
    29    (iii) A child whose parentage can be established pursuant to part  six
    30  of this article.
    31    §  581-202.  Proceeding  for  judgment  of  parentage  of a child born
    32  through  assisted  reproduction  or  artificial  insemination.    (a)  A
    33  proceeding for a judgment of parentage may be commenced:

    34    (1)  if  the  intended parents reside in New York state, in the county
    35  where the intended parents reside any time after pregnancy  is  achieved
    36  or in the county where the child was born or resides; or
    37    (2) if the intended parents and child do not reside in New York state,
    38  up  to  ninety days after the birth of the child in the county where the
    39  child is born.
    40    (b) The petition for a judgment of  parentage  must  be  verified  and
    41  include the following:
    42    (1)  a  statement that the intended parents have been residents of the
    43  state for at least ninety days or if they are not New York  state  resi-
    44  dents, the child was born in the state; and
    45    (2)  a statement from the gestating mother that she became pregnant as

    46  a result of the donation of the gametes or embryos and a  representation
    47  of non-access during the time of conception; and
    48    (3)  a  statement  that  the  intended  parents  consented to assisted
    49  reproduction or artificial insemination pursuant to section  581-304  of
    50  this article; and
    51    (4) where the gametes or embryos were received from a gamete or embryo
    52  storage facility, an attached statement from the facility having custody
    53  of  the  gametes  or  embryos  demonstrating  the donative intent of the
    54  gamete or embryo donor.
    55    (c) The following shall be deemed sufficient proof of a donor's  dona-
    56  tive intent:

        A. 6701                             5
 

     1    (1)  in the case of an anonymous donor, a statement from the gamete or
     2  embryo storage facility with custody of the gametes or embryos that  the
     3  donor  relinquished  any parental or proprietary interest in the gametes
     4  or embryos at the time of donation; and
     5    (2)  in  the case of a donation from a known donor, a notarized state-
     6  ment from the gamete or embryo  donor  acknowledging  the  donation  and
     7  confirming  that  the donors have no parental or proprietary interest in
     8  the gametes or embryos. In the absence of a notarized statement from the
     9  donor, the donor shall be served by  mail  at  the  donor's  last  known
    10  address with notice of the proceeding. Failure to respond to said notice

    11  shall be considered a default and no further notice shall be required.
    12    (d)  Where a petition demonstrates the consent of the intended parents
    13  pursuant to section 581-304 of this article, the donative intent of  the
    14  gamete  or  embryo  donors  and  that  the  pregnancy  resulted from the
    15  donation, the court shall issue a judgment of parentage:
    16    (1) declaring, that upon the birth of the child, the intended  parents
    17  are the only legal parents of the child; and
    18    (2)  ordering  the  intended parents to assume sole responsibility for
    19  the maintenance and support of the child immediately upon the  birth  of
    20  the child; and
    21    (3)  ordering that upon the birth of the child, a copy of the judgment

    22  of parentage be served on the (i) department of health or New York  city
    23  department  of mental health and hygiene, or (ii) registrar of births in
    24  the hospital where the child is born and  directing  that  the  hospital
    25  report  the  parentage  of  the  child  to the appropriate department of
    26  health in conformity with the court order. If an original birth  certif-
    27  icate  has  already issued, the court shall issue an order directing the
    28  appropriate department of health to amend the birth  certificate  in  an
    29  expedited manner and seal the previously issued birth certificate.
    30    § 581-203. Proceeding for judgment of parentage of a child born pursu-
    31  ant  to  a  gestational carrier arrangement.   (a) The proceeding may be

    32  commenced at any time after the gestational agreement has been  executed
    33  by  all of the parties. Any party to the gestational agreement not join-
    34  ing in the petition must be served with notice of the proceeding.  Fail-
    35  ure  to  respond  to  the  notice  shall  be considered a default and no
    36  further notice shall be required.
    37    (b) The petition for a judgment of  parentage  must  be  verified  and
    38  include the following:
    39    (1)  A  statement that the gestational carrier or the intended parents
    40  have been residents of the state for at least ninety days  at  the  time
    41  the gestational agreement was executed; and
    42    (2)  A  certification  from the attorneys representing the petitioners

    43  that the parties are eligible to participate in the gestational  carrier
    44  arrangement  as required by section 581-404 of this article and that the
    45  gestational agreement contains the required terms under section  581-405
    46  of this article; and
    47    (3)  A  statement that the parties entered into the gestational agree-
    48  ment knowingly and voluntarily.
    49    (c) Where a petition satisfies subdivision (b) of  this  section,  the
    50  court   shall   issue   a  judgment  of  parentage,  without  additional
    51  proceedings or documentation:
    52    (1) Declaring, that upon the birth of a child born during the term  of
    53  the gestational agreement, the intended parents are the legal parents of
    54  the child; and


        A. 6701                             6
 
     1    (2)  Declaring, that upon the birth of a child born during the term of
     2  the gestational agreement, the gestational carrier, and her  spouse,  if
     3  any, are not the legal parents of the child; and
     4    (3) Ordering the gestational carrier and her spouse, if any, to trans-
     5  fer  the child to the intended parents if this has not already occurred;
     6  and
     7    (4) Ordering the intended parents to assume  sole  responsibility  for
     8  the  maintenance  and support of the child immediately upon the birth of
     9  the child; and
    10    (5) Ordering that upon the birth of the child, a copy of the  judgment
    11  of  parentage be served on the (i) department of health or New York city

    12  department of mental health and hygiene, or (ii) registrar of births  in
    13  the  hospital  where  the  child is born and directing that the hospital
    14  report the parentage of the  child  to  the  appropriate  department  of
    15  health  in conformity with the court order. If an original birth certif-
    16  icate has already issued, the court shall issue an order  directing  the
    17  appropriate  department  of  health to amend the birth certificate in an
    18  expedited manner and seal the previously issued birth certificate.
    19    (d) The agreement of the intended parents to  pay  reasonable  compen-
    20  sation  to  the  gestational carrier in excess of reasonable medical and
    21  ancillary costs shall not be a bar to the  issuance  of  a  judgment  of
    22  parentage.

    23    §  581-204.  Proceeding  for  judgment  of  parentage of a child whose
    24  parentage is established pursuant to section 581-601 of this article.  A
    25  proceeding for a judgment of parentage  may  be  commenced  by  verified
    26  petition to establish parentage under section 581-601 of this article at
    27  any time in the county of residence of the child or of a parent, includ-
    28  ing a person asserting to have formed a parent-child relationship with a
    29  child  under  section  581-601  of this article. Upon a determination of
    30  parentage under section 581-601 of this article, the court shall issue a
    31  judgment of parentage declaring the parents of the child for  all  legal
    32  purposes.
    33    § 581-205. Judgment of parentage for intended parents who are spouses.

    34  Notwithstanding  or without limitation on presumptions of parentage that
    35  apply, a judgment of parentage  may  be  obtained  under  this  part  by
    36  intended parents who are each other's spouse.
    37    §  581-206. Jurisdiction.  Proceedings pursuant to this article may be
    38  instituted in the  supreme,  family  or  surrogate's  court  except  for
    39  proceedings  pursuant  to section 581-204 of this part may be instituted
    40  in the supreme or family court.
 
    41                                   PART 3
    42          CHILD OF ASSISTED REPRODUCTION OR ARTIFICIAL INSEMINATION
    43  Section 581-301. Scope of article.
    44          581-302. Status of donor.
    45          581-303. Parentage of child of assisted reproduction or  artifi-

    46                     cial insemination.
    47          581-304. Consent  to assisted reproduction or artificial insemi-
    48                     nation.
    49          581-305. Limitation on spouses' dispute of parentage of child of
    50                     assisted reproduction and artificial insemination.
    51          581-306. Effect of dissolution of  relationship  of  spouses  or
    52                     withdrawal of consent.
    53          581-307. Effect of death of intended parent.
    54    § 581-301. Scope of article.  This article does not apply to the birth
    55  of a child conceived by means of sexual intercourse.

        A. 6701                             7
 
     1    §  581-302.  Status  of  donor.    A  donor is not a parent of a child

     2  conceived by means of assisted reproduction or  artificial  insemination
     3  except as provided in section 581-303 of this part.
     4    §  581-303.  Parentage of child of assisted reproduction or artificial
     5  insemination.   (a) An individual  who  provides  gametes  for  assisted
     6  reproduction  or  artificial insemination with the intent to be a parent
     7  of the child, or consents to assisted reproduction or artificial insemi-
     8  nation as provided in section 581-304 of this part, is a parent  of  the
     9  resulting child for all legal purposes.
    10    (b) Upon application by any participant, the court shall issue a judg-
    11  ment  of  parentage  to any participant who is a parent pursuant to this
    12  act.

    13    § 581-304. Consent to assisted reproduction  or  artificial  insemina-
    14  tion.  (a) Where the intended parent who gives birth to a child by means
    15  of  assisted  reproduction  or  artificial insemination is a spouse, the
    16  consent of both spouses to the assisted reproduction or artificial inse-
    17  mination is presumed and neither spouse may challenge the  parentage  of
    18  the child, except as provided in section 581-305 of this part.
    19    (b)  Consent to assisted reproduction or artificial insemination by an
    20  individual who intends to be a parent and  is  not  the  spouse  of  the
    21  intended  parent who gives birth to a child by means of assisted reprod-
    22  uction or artificial insemination must  be  in  a  signed  record  which

    23  acknowledges  the intended parents' joint participation and intention to
    24  parent together.
    25    (c) The failure of a  person  to  sign  a  record  evidencing  his/her
    26  consent  as  provided  in  subdivision  (b)  of  this  section shall not
    27  preclude a finding that such consent existed if the court finds by clear
    28  and convincing evidence that at the time of the  child's  conception  or
    29  birth,  both  the  intended parent who gives birth to the child and such
    30  person resided in the same household  as  intimate  partners,  and  held
    31  themselves and each other out as the parents of the intended child.
    32    §  581-305.  Limitation  on  spouses' dispute of parentage of child of
    33  assisted reproduction and artificial insemination.  (a) Except as other-

    34  wise provided in subdivision (b) of this  section,  neither  spouse  may
    35  challenge the presumption of parentage of the child unless:
    36    (1)  Within  two  years  after  learning  of  the birth of the child a
    37  proceeding is commenced to adjudicate parentage; and
    38    (2) The court finds by  clear  and  convincing  evidence  that  either
    39  spouse  did  not  consent for the non-gestating spouse to be a parent of
    40  the child.
    41    (b) A proceeding for a judgment of parentage may be maintained at  any
    42  time if the court determines that:
    43    (1)  The  spouse  did not provide gametes for, or consent to, assisted
    44  reproduction or artificial  insemination  by  the  individual  who  gave
    45  birth; and

    46    (2)  The  spouse  and the individual who gave birth have not cohabited
    47  since the spouse knew or had reason to know of the pregnancy; and
    48    (3) The spouse never openly held out the child as his or her own.
    49    (c) The limitation provided in  this  section  applies  to  a  spousal
    50  relationship  that has been declared invalid after assisted reproduction
    51  or artificial insemination.
    52    § 581-306. Effect of dissolution of relationship of spouses  or  with-
    53  drawal  of consent.  An individual who withdraws consent prior to trans-
    54  fer is not a parent.
    55    § 581-307. Effect of death of intended parent.   Except  as  otherwise
    56  provided  in  the  estates,  powers and trusts law, if an individual who


        A. 6701                             8
 
     1  consented in a record to be a parent by assisted reproduction or artifi-
     2  cial insemination dies before the transfer of eggs, sperm,  or  embryos,
     3  the  deceased  individual  is not a parent of the resulting child unless
     4  the  deceased  individual  consented in a signed record that if assisted
     5  reproduction or artificial insemination were to occur after  death,  the
     6  deceased individual would be a parent of the child.
 
     7                                   PART 4
     8                            GESTATIONAL AGREEMENT
     9  Section 581-401. Gestational agreement authorized.
    10          581-404. Eligibility.
    11          581-405. Requirements of gestational agreement.

    12          581-406. Termination of gestational agreement.
    13          581-407. Gestational  agreement:  effect  of  subsequent spousal
    14                     relationship.
    15          581-408. Failure to obtain a judgment of parentage.
    16          581-409. Dispute as to gestational agreement.
    17          581-410. Inspection of records.
    18          581-411. Exclusive, continuing jurisdiction.
    19    § 581-401. Gestational agreement authorized.   (a) If  eligible  under
    20  this article to enter into a gestational agreement, a gestational carri-
    21  er,  her spouse if applicable, and the intended parents may enter into a
    22  gestational agreement which will be enforceable provided the gestational
    23  agreement meets the requirements of this article.

    24    (b) A gestational agreement shall not apply to the birth  of  a  child
    25  conceived by means of sexual intercourse.
    26    (c)  A  gestational  agreement may provide for payment of compensation
    27  under part five of this article.
    28    (d) A gestational agreement may not limit the right of the gestational
    29  carrier to make decisions to safeguard her health.
    30    § 581-404. Eligibility.  (a) A gestational carrier shall  be  eligible
    31  to enter into an enforceable gestational agreement under this article if
    32  she  has  met  the  following  requirements  at the time the gestational
    33  agreement is executed:
    34    (1) She is at least twenty-one years of age; and
    35    (2) She has completed a medical evaluation with a health care  practi-

    36  tioner relating to the anticipated pregnancy; and
    37    (3)  She has undergone legal consultation with independent legal coun-
    38  sel regarding the terms of the gestational agreement and  the  potential
    39  legal consequences of the gestational carrier arrangement; and
    40    (4) She has, or the gestational agreement stipulates that prior to the
    41  embryo  transfer, she will obtain, a health insurance policy that covers
    42  major medical treatments and hospitalization, and the  health  insurance
    43  policy  has  a term that extends throughout the duration of the expected
    44  pregnancy and for eight weeks after the birth of the child;  the  policy
    45  may  be  procured  and paid for by the intended parents on behalf of the
    46  gestational carrier pursuant to the gestational agreement.

    47    (b) The intended parents shall be eligible to enter into an  enforcea-
    48  ble  gestational  agreement  under this article if he, she, or they have
    49  met the following requirements at the time the gestational agreement was
    50  executed:
    51    (1) He, she, or they have undergone legal consultation with  independ-
    52  ent  legal  counsel regarding the terms of the gestational agreement and
    53  the potential legal consequences of the gestational carrier arrangement;
    54  and

        A. 6701                             9
 
     1    (2) He or she is an adult person who is not in a spousal relationship,
     2  or adult spouses together, or any two adults who are  intimate  partners
     3  together, except where the intended parent and his or her spouse:

     4    (i)  are living separate and apart pursuant to a decree or judgment of
     5  separation or pursuant to a written agreement of  separation  subscribed
     6  by  the  parties thereto and acknowledged or proved in the form required
     7  to entitle a deed to be recorded; or
     8    (ii) have been living separate and apart  for  at  least  three  years
     9  prior  to execution of the gestational agreement, then the spouse of the
    10  intended parent is not required to be a party to the gestational  agree-
    11  ment and shall not have parental rights or obligations to the child.
    12    §  581-405.  Requirements of gestational agreement.  (a) A gestational
    13  agreement shall be deemed to have satisfied  the  requirements  of  this

    14  article and be enforceable if it meets the following requirements:
    15    (1)  It  shall be in a signed record verified by the intended parents,
    16  the gestational carrier, and her spouse, if any; and
    17    (2) It shall be executed prior to  the  commencement  of  any  medical
    18  procedures  in  furtherance of the gestational carrier arrangement other
    19  than medical evaluations  necessary  to  determine  eligibility  of  the
    20  parties pursuant to section 581-404 of this part; and
    21    (3)  It  shall be executed by a gestational carrier meeting the eligi-
    22  bility requirements of subdivision (a) of section 581-404 of  this  part
    23  and by the gestational carrier's spouse, if any; and
    24    (4)  It  shall be executed by intended parents meeting the eligibility

    25  requirements of subdivision (b) of section 581-404 of this part; and
    26    (5) The gestational carrier and the intended parents shall  have  been
    27  represented  by  separate, independent counsel in all matters concerning
    28  the gestational carrier arrangement and the gestational agreement; and
    29    (6) If the gestational agreement provides for the payment  of  compen-
    30  sation  to  the  gestational  carrier,  the compensation shall have been
    31  placed in escrow with an independent escrow agent prior  to  the  gesta-
    32  tional  carrier's  commencement  of  any  medical  procedure  other than
    33  medical evaluations necessary to  determine  the  gestational  carrier's
    34  eligibility; and
    35    (7) The gestational agreement must include the following terms:

    36    (i) As to the gestational carrier and her spouse, if any:
    37    (A)  the agreement of the gestational carrier to undergo embryo trans-
    38  fer and attempt to carry and give birth to the child; and
    39    (B) the agreement of the gestational carrier and her spouse,  if  any,
    40  to  surrender  custody of all resulting children to the intended parents
    41  immediately upon the birth; and
    42    (C) the right of the gestational carrier to utilize the services of  a
    43  health  care  practitioner  of her choosing, after consultation with the
    44  intended parents, to provide her care during the pregnancy; and
    45    (ii) As to the intended parent or parents:
    46    (A) the agreement to accept custody of all  resulting  children  imme-

    47  diately  upon  birth regardless of number, gender, or mental or physical
    48  condition; and
    49    (B) the agreement to assume sole responsibility for the support of the
    50  children immediately upon the children's birth; and
    51    (C) the agreement that the rights  and  obligations  of  the  intended
    52  parent or parents under the gestational agreement are not assignable.
    53    §  581-406.  Termination of gestational agreement.  (a) After issuance
    54  of a judgment of parentage pursuant to section 581-203 of this  article,
    55  but before the gestational carrier becomes pregnant by means of assisted
    56  reproduction,  the gestational carrier, her spouse, if any, or either of

        A. 6701                            10
 

     1  the intended parents may terminate the gestational agreement  by  giving
     2  notice of termination in a record to all other parties and any liability
     3  resulting  therefrom  will  be determined pursuant to section 581-408 of
     4  this part.
     5    (b)  An  individual  who terminates a gestational agreement under this
     6  section shall file notice of the termination with the court. On  receipt
     7  of  the  notice, the court shall vacate the judgment of parentage issued
     8  under this article.
     9    §  581-407.  Gestational  agreement:  effect  of  subsequent   spousal
    10  relationship.  After the execution of a gestational agreement under this
    11  article,  the subsequent spousal relationship of the gestational carrier

    12  does not affect the validity of a gestational  agreement,  her  spouse's
    13  consent to the agreement shall not be required, and her spouse shall not
    14  be the presumed parent of the resulting child.
    15    §  581-408.  Failure  to  obtain  a judgment of parentage.   Where the
    16  intended parents or the gestational carrier fail to obtain a judgment of
    17  parentage pursuant to section 581-203 of this article, the parentage  of
    18  a  child born as the result of a gestational carrier arrangement will be
    19  determined based on the best interests of the child taking into  account
    20  genetics and the intent of the parties.
    21    § 581-409. Dispute as to gestational agreement.  (a) Any dispute which
    22  is  related to a gestational agreement other than disputes as to parent-

    23  age shall be resolved by the supreme court, which  shall  determine  the
    24  respective  rights  and  obligations  of  the  parties. If a gestational
    25  agreement does not meet the requirements of this article, the  agreement
    26  is not enforceable.
    27    (b)  Except  as  expressly  provided in the gestational agreement, the
    28  intended parent or parents and gestational carrier shall be entitled  to
    29  all  remedies  available  at law or equity in any dispute related to the
    30  gestational agreement.
    31    (c) There shall be no specific  performance  remedy  available  for  a
    32  breach  by  the gestational carrier of a gestational agreement term that
    33  requires her to be impregnated.

    34    § 581-410. Inspection of records.  The proceedings, records, and iden-
    35  tities of the individual parties to a gestational agreement  under  this
    36  article  shall  be sealed except upon the petition of the parties to the
    37  gestational agreement or the child born as a result of  the  gestational
    38  carrier arrangement.
    39    §  581-411. Exclusive, continuing jurisdiction.  Subject to the juris-
    40  dictional standards of section seventy-six  of  the  domestic  relations
    41  law, the court conducting a proceeding under this article has exclusive,
    42  continuing  jurisdiction  of  all matters arising out of the gestational
    43  agreement until a child born to the gestational carrier during the peri-

    44  od governed by the agreement attains the age of one hundred eighty days.
 
    45                                   PART 5
    46                 PAYMENT TO DONORS AND GESTATIONAL CARRIERS
    47  Section 581-501. Reimbursement.
    48          581-502. Compensation.
    49    § 581-501. Reimbursement.  (a) A donor who has entered  into  a  valid
    50  agreement  to  be  a  donor,  may receive reimbursement from an intended
    51  parent or parents for economic losses incurred in  connection  with  the
    52  donation  which result from the retrieval or storage of gametes or embr-
    53  yos.

        A. 6701                            11
 
     1    (b) Premiums paid  for  insurance  against  economic  losses  directly

     2  resulting  from  the  retrieval  or  storage  of  gametes or embryos for
     3  donation may be reimbursed.
     4    §  581-502. Compensation.   (a) Compensation may be paid to a donor or
     5  gestational carrier based on services rendered, expenses that have  been
     6  or will be incurred, time, and inconvenience. Under no circumstances may
     7  compensation  be  paid  to purchase gametes or embryos or to pay for the
     8  relinquishment of a parental interest in a child.
     9    (b) The compensation, if any, paid to a donor or  gestational  carrier
    10  must be reasonable and negotiated in good faith between the parties, and
    11  said  payments to a gestational carrier shall not exceed the duration of
    12  the pregnancy and recuperative period of up to  eight  weeks  after  the

    13  birth of the child.
    14    (c)  Compensation may not be conditioned upon the purported quality or
    15  genome-related traits of the gametes or embryos.
    16    (d) Compensation may not be conditioned on actual genotypic or  pheno-
    17  typic characteristics of the donor or of the child.
 
    18                                   PART 6
    19      FORMATION OF LEGAL PARENT-CHILD RELATIONSHIP AFTER BIRTH OF CHILD
    20  Section 581-601. Determination of parenthood.
    21    § 581-601. Determination of parenthood.  (a) A person seeking to qual-
    22  ify for a judgment of parentage under this part is referred to herein as
    23  "petitioner".
    24    (b)  The court shall issue a judgment of parentage to a petitioner who

    25  demonstrates the following by clear and convincing evidence:
    26    (1) The parent or parents of a child  consented  to  the  petitioner's
    27  formation of a parent-child relationship with the child, such consent to
    28  be  expressed  in written form, including but not limited to, any of the
    29  following examples: a signed letter agreement, an executed  contract,  a
    30  birth  announcement,  a  religious  ceremony  document,  or  a school or
    31  medical record; and
    32    (2) Petitioner resided in the same household  with  the  child  for  a
    33  length  of  time  sufficient, given the age of the child, to have estab-
    34  lished with the child  a  bonded,  dependent  relationship  parental  in
    35  nature; and

    36    (3) Petitioner performed parental functions for the child to a signif-
    37  icant degree; and
    38    (4) Petitioner formed a parent-child bond with the child.
    39    (c) Petitioner under this part shall not include a grandparent of such
    40  minor  child,  a  person  whose  relationship with the child is based on
    41  payment by the parent, or a person who has not at any time been an inti-
    42  mate partner with a parent of the child.
    43    (d) Petitioner qualifying as a parent  under  this  section  shall  be
    44  deemed to be the legal parent of such child for all purposes.
    45    (e)  A  judgment  of  parentage  shall  be  issued pursuant to section
    46  581-204 of this  article  confirming  establishment  of  a  parent-child
    47  relationship as provided in this part.
 

    48                                   PART 7
    49                          MISCELLANEOUS PROVISIONS
    50  Section 581-701. Remedial.
    51          581-702. Severability.
    52          581-703. Parent  under section seventy of the domestic relations
    53                     law.

        A. 6701                            12
 
     1    § 581-701. Remedial.   This legislation is hereby  declared  to  be  a
     2  remedial  statute and is to be construed liberally to secure the benefi-
     3  cial interests and purposes thereof for the best interests of the child.
     4    §  581-702. Severability.  The invalidation of any part of this legis-
     5  lation by a court of competent jurisdiction  shall  not  result  in  the

     6  invalidation of any other part.
     7    § 581-703. Parent under section seventy of the domestic relations law.
     8  The term "parent" in section seventy of the domestic relations law shall
     9  include  a  person  established to be a parent under this article or any
    10  other relevant law.
    11    § 2. Section 73 of the domestic relations law is REPEALED.
    12    § 3. Article 8 of the domestic relations law is REPEALED.
    13    § 4. This act shall take effect on the one hundred twentieth day after
    14  it shall have become a law. Effective immediately, the addition,  amend-
    15  ment and/or repeal of any rule or regulation necessary for the implemen-
    16  tation  of this act on its effective date is authorized to be made on or
    17  before such date.
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