|SAME AS||SAME AS S04617|
|COSPNSR||Titone, Lavine, Zebrowski, Weprin, Robinson, Galef, Jaffee, Otis, Scarborough, Cook, Stirpe, Benedetto, Bronson, Brindisi, Mosley, Walter, Ortiz, Dinowitz, Rosenthal|
|MLTSPNSR||Brennan, 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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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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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. LBD05071-04-3A. 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; andA. 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 whoA. 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 andA. 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 ofA. 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.