STATE OF NEW YORK
________________________________________________________________________
10499
IN ASSEMBLY
May 29, 2012
___________
Introduced by M. of A. PAULIN, TITONE, LAVINE, ROBINSON, GALEF, JAFFEE,
P. RIVERA, ZEBROWSKI, WEPRIN -- Multi-Sponsored by -- M. of A.
BOYLAND, GOTTFRIED, LINARES -- 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".
21 § 581-102. Purpose. The purpose of this article is to legally estab-
22 lish a child's relationship to his or her parents.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD15555-03-2
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1 § 581-103. Definitions. (a) "Artificial insemination" means insertion
2 of sperm into female reproductive organs by any means other than sexual
3 intercourse, including intrauterine insemination, with the intent to
4 cause a pregnancy.
5 (b) "Assisted reproduction" includes all fertility treatments in which
6 both eggs and sperm are handled. In the foregoing context, the term
7 includes, but is not limited to in-vitro fertilization and transfer of
8 embryos including donated gametes or donated embryos.
9 (c) "ART provider" means any entity which assists with assisted repro-
10 ductive technology.
11 (d) "Assisted reproductive technology" or "ART" is any medical or
12 scientific intervention, including, but not limited to, assisted reprod-
13 uction, provided for the purpose of achieving live birth that results
14 from assisted conception. Assisted conception means the formation of a
15 human embryo outside the body with the intent to produce a live birth.
16 (e) "Child" means a live born individual of any age whose parentage
17 may be determined under this act or other law.
18 (f) "Collaborative reproduction" involves artificial insemination with
19 donor sperm and any assisted reproduction in which an individual other
20 than the intended parent provides genetic material or agrees to act as a
21 gestational carrier. It can include, but is not limited to, (1) attempts
22 by the intended parent to create a child through means of a gestational
23 arrangement, with or without the involvement of a donor, and (2)
24 assisted reproduction involving a donor where a gestational carrier is
25 not used.
26 (g) "Compensation" means payment of any valuable consideration for
27 time, effort, pain and/or risk to health in excess of reasonable medical
28 and ancillary costs.
29 (h) "Consultation" means an initial in-person meeting with a licensed
30 mental health professional for the purpose of educating the participant
31 about the effects and potential consequences of their participation in
32 any ART procedure.
33 (i) "Counseling" means additional meetings with a mental health
34 professional after the consultation for the purpose of advising and
35 emotionally supporting the participant during the implementation of any
36 ART procedure.
37 (j) "Donor" means an individual who produces eggs or sperm used for
38 assisted reproduction or artificial insemination, whether or not for
39 consideration. Donor also includes an individual or individuals with
40 dispositional control of an embryo who provide it to another person for
41 the purpose of gestation and relinquishes all present and future
42 parental and inheritance rights and obligations to a resulting child.
43 The term does not include an intended parent who provides gametes to be
44 used for assisted reproduction or artificial insemination.
45 (k) "Embryo" means a cell or group of cells containing a diploid
46 complement of chromosomes or group of such cells, not a gamete or
47 gametes, that has the potential to develop into a live born human being
48 if transferred into the body of a woman under conditions in which
49 gestation may be reasonably expected to occur.
50 (l) "Embryo transfer" means all medical and laboratory procedures that
51 are necessary to effectuate the transfer of an embryo into the uterine
52 cavity.
53 (m) "Gamete" means a cell containing a haploid complement of DNA that
54 has the potential to form an embryo when combined with another gamete.
55 Sperm and eggs are gametes. A gamete may consist of nuclear DNA from one
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1 human being combined with the cytoplasm, including cytoplasmic DNA, of
2 another human being.
3 (n) "Gamete provider" means an individual who provides sperm or eggs
4 for use in assisted reproduction or artificial insemination.
5 (o) "Gestational agreement" is a contract between intended parents and
6 a gestational carrier intended to result in a live birth where the child
7 will be the legal child of the intended parents.
8 (p) "Gestational carrier" means an adult woman, not an intended
9 parent, who enters into a gestational agreement to bear a child who will
10 be the legal child of the intended parents so long as she has not
11 provided the egg used to conceive the resulting child.
12 (q) "Gestational carrier arrangement" means the process by which a
13 gestational carrier attempts to carry and give birth to a child created
14 through assisted reproduction so long as the gestational carrier has not
15 provided the egg used to conceive the resulting child.
16 (r) "Health care practitioner" means an individual licensed or certi-
17 fied under title eight of the education law acting within his or her
18 scope of practice.
19 (s) "Intended parent" is an individual who manifests the intent as
20 provided in this act to be legally bound as the parent of a child
21 resulting from assisted reproduction or collaborative reproduction.
22 (t) "In-vitro fertilization" means the formation of a human embryo
23 outside the human body.
24 (u) "Medical evaluation" means an evaluation and consultation with a
25 health care provider regarding the anticipated pregnancy.
26 (v) "Mental health evaluation" means an evaluation by a mental health
27 professional as to participants' suitability to participate in collabo-
28 rative reproduction.
29 (w) "Mental health professional" is an individual who (1) holds a
30 masters or doctoral degree in one of the following fields: psychiatry,
31 psychology, counseling, social work, psychiatric nursing, marriage and
32 family therapy, or state equivalent; and (2) is licensed, certified, or
33 registered to practice in the mental health field; and (3) has received
34 training in, or has knowledge of, reproductive physiology; the testing,
35 diagnosis, and treatment of infertility; and/or the psychological issues
36 in infertility and collaborative reproduction. If there are questions
37 about inherited or genetic disorders, the counselor must refer the
38 participant to a qualified genetic counselor.
39 (x) "Parent" means an individual who has established a parent-child
40 relationship under this act or other law and includes, but is not limit-
41 ed to: (1) a child's birth parent who is not a gestational carrier or
42 the spouse of the gestational carrier; (2) a child's genetic parent who
43 is not the donor; (3) an individual who has legally adopted the child;
44 (4) an individual who is a parent of the child pursuant to a legal
45 presumption; (5) an individual who is a parent of the child pursuant to
46 an acknowledgment or judgment of parentage pursuant to article two of
47 this act or other law; (6) an individual who is a parent of the child
48 pursuant to article three, four, or six of this act.
49 (y) "Participant" means an individual who provides a biological or
50 genetic component of assisted reproduction or artificial insemination,
51 an intended parent, and the spouse of an intended parent or gestational
52 carrier. Gestation is a biological component within the meaning of this
53 definition.
54 (z) "Record" means information inscribed in a tangible medium or
55 stored in an electronic or other medium that is retrievable in perceiva-
56 ble form.
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1 (aa) "Retrieval" means the procurement of eggs or sperm from a gamete
2 provider.
3 (bb) "Spouse" means an individual married to another, or who has a
4 legal relationship entered into under the laws of the United States or
5 of any state, local or foreign jurisdiction, which is substantially
6 equivalent to a marriage, including a civil union or domestic partner-
7 ship.
8 (cc) "State" means a state of the United States, the District of
9 Columbia, Puerto Rico, the United States Virgin Islands, or any territo-
10 ry or insular possession subject to the jurisdiction of the United
11 States.
12 (dd) "Time of transfer" means the time at which a gamete or embryo is
13 transferred into the body of a woman with the intent to produce live
14 birth.
15 (ee) "Transfer" means the placement of an embryo or gametes into the
16 body of a woman with the intent to achieve pregnancy and live birth.
17 PART 2
18 JUDGMENT OF PARENTAGE
19 Section 581-201. Judgment of parentage.
20 581-202. Proceeding for judgment of parentage of a child born
21 through assisted reproduction or artificial insemina-
22 tion.
23 581-203. Proceeding for judgment of parentage of a child born
24 pursuant to a gestational carrier arrangement.
25 581-204. Proceeding for judgment of parentage of a child whose
26 parentage is established pursuant to section 581-601
27 of this article.
28 581-205. Judgment of parentage for intended parents who are
29 spouses.
30 581-206. Jurisdiction.
31 § 581-201. Judgment of parentage. (a) A civil proceeding may be main-
32 tained to adjudicate the parentage of a child under the circumstances
33 set forth in this article. This proceeding is governed by the New York
34 civil practice law and rules.
35 (b) A judgment of parentage may be issued prior to birth but shall not
36 become effective until the birth of the child.
37 (c) A judgment of parentage shall be issued by the court upon the
38 petition of (1) a child, or (2) a parent, or (3) a participant, or (4)
39 the Support/Enforcement Agency or other governmental agency authorized
40 by other law, or (5) a representative authorized by law to act for an
41 individual who would otherwise be entitled to maintain a proceeding but
42 who is deceased, incapacitated, or a minor, in order to legally estab-
43 lish the child-parent relationship under the following circumstances:
44 (i) A child born through assisted reproduction or artificial insemina-
45 tion under part three of this article; or
46 (ii) A child born pursuant to a gestational carrier arrangement under
47 part four of this article; or
48 (iii) A child whose parentage can be established pursuant to part six
49 of this article.
50 § 581-202. Proceeding for judgment of parentage of a child born
51 through assisted reproduction or artificial insemination. (a) A
52 proceeding for a judgment of parentage may be commenced:
53 (1) if the intended parents reside in New York state, in the county
54 where the intended parents reside any time after pregnancy is achieved
55 or in the county where the child was born or resides; or
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1 (2) if the intended parents and child do not reside in New York state,
2 up to ninety days after the birth of the child in the county where the
3 child is born.
4 (b) The petition for a judgment of parentage must be verified and
5 include the following:
6 (1) a statement that the intended parents have been residents of the
7 state for at least ninety days or if they are not New York state resi-
8 dents, the child was born in the state; and
9 (2) a statement from the gestating mother that she became pregnant as
10 a result of the donation of the gametes or embryos and a representation
11 of non-access during the time of conception; and
12 (3) a statement that the intended parents consented to assisted
13 reproduction or artificial insemination pursuant to section 581-304 of
14 this article; and
15 (4) where the gametes or embryos were received from a gamete or embryo
16 storage facility, an attached statement from the facility having custody
17 of the gametes or embryos demonstrating the donative intent of the
18 gamete or embryo donor.
19 (c) The following shall be deemed sufficient proof of a donor's dona-
20 tive intent:
21 (1) in the case of an anonymous donor, a statement from the gamete or
22 embryo storage facility with custody of the gametes or embryos that the
23 donor relinquished any parental or proprietary interest in the gametes
24 or embryos at the time of donation; and
25 (2) in the case of a donation from a known donor, a notarized state-
26 ment from the gamete or embryo donor acknowledging the donation and
27 confirming that the donors have no parental or proprietary interest in
28 the gametes or embryos. In the absence of a notarized statement from the
29 donor, the donor shall be served by mail at the donor's last known
30 address with notice of the proceeding. Failure to respond to said notice
31 shall be considered a default and no further notice shall be required.
32 (d) Where a petition demonstrates the consent of the intended parents
33 pursuant to section 581-304 of this article, the donative intent of the
34 gamete or embryo donors and that the pregnancy resulted from the
35 donation, the court shall issue a judgment of parentage:
36 (1) declaring, that upon the birth of the child, the intended parents
37 are the only legal parents of the child; and
38 (2) ordering the intended parents to assume sole responsibility for
39 the maintenance and support of the child immediately upon the birth of
40 the child; and
41 (3) ordering that upon the birth of the child, a copy of the judgment
42 of parentage be served on the (i) department of health or New York city
43 department of mental health and hygiene, or (ii) registrar of births in
44 the hospital where the child is born and directing that the hospital
45 report the parentage of the child to the appropriate department of
46 health in conformity with the court order. If an original birth certif-
47 icate has already issued, the court shall issue an order directing the
48 appropriate department of health to amend the birth certificate in an
49 expedited manner and seal the previously issued birth certificate.
50 § 581-203. Proceeding for judgment of parentage of a child born pursu-
51 ant to a gestational carrier arrangement. (a) The proceeding may be
52 commenced at any time after the gestational agreement has been executed
53 by all of the parties. Any party to the gestational agreement not join-
54 ing in the petition must be served with notice of the proceeding. Fail-
55 ure to respond to the notice shall be considered a default and no
56 further notice shall be required.
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1 (b) The petition for a judgment of parentage must be verified and
2 include the following:
3 (1) A statement that the gestational carrier or the intended parents
4 have been residents of the state for at least ninety days at the time
5 the gestational agreement was executed; and
6 (2) A certification from the attorneys representing the petitioners
7 that the parties are eligible to participate in the gestational carrier
8 arrangement as required by section 581-404 of this article and that the
9 gestational agreement contains the required terms under section 581-405
10 of this article; and
11 (3) A statement that the parties entered into the gestational agree-
12 ment knowingly and voluntarily.
13 (c) Where a petition satisfies subdivision (b) of this section, the
14 court shall issue a judgment of parentage, without additional
15 proceedings or documentation:
16 (1) Declaring, that upon the birth of a child born during the term of
17 the gestational agreement, the intended parents are the legal parents of
18 the child; and
19 (2) Declaring, that upon the birth of a child born during the term of
20 the gestational agreement, the gestational carrier, and her spouse, if
21 any, are not the legal parents of the child; and
22 (3) Ordering the gestational carrier and her spouse, if any, to trans-
23 fer the child to the intended parents if this has not already occurred;
24 and
25 (4) Ordering the intended parents to assume sole responsibility for
26 the maintenance and support of the child immediately upon the birth of
27 the child; and
28 (5) Ordering that upon the birth of the child, a copy of the judgment
29 of parentage be served on the (i) department of health or New York city
30 department of mental health and hygiene, or (ii) registrar of births in
31 the hospital where the child is born and directing that the hospital
32 report the parentage of the child to the appropriate department of
33 health in conformity with the court order. If an original birth certif-
34 icate has already issued, the court shall issue an order directing the
35 appropriate department of health to amend the birth certificate in an
36 expedited manner and seal the previously issued birth certificate.
37 (d) The agreement of the intended parents to pay reasonable compen-
38 sation to the gestational carrier in excess of reasonable medical and
39 ancillary costs shall not be a bar to the issuance of a judgment of
40 parentage.
41 § 581-204. Proceeding for judgment of parentage of a child whose
42 parentage is established pursuant to section 581-601 of this article. A
43 proceeding for a judgment of parentage may be commenced by verified
44 petition to establish parentage under section 581-601 of this article at
45 any time in the county of residence of the child or of a parent, includ-
46 ing a person asserting to have formed a parent-child relationship with a
47 child under section 581-601 of this article. Upon a determination of
48 parentage under section 581-601 of this article, the court shall issue a
49 judgment of parentage declaring the parents of the child for all legal
50 purposes.
51 § 581-205. Judgment of parentage for intended parents who are spouses.
52 Notwithstanding or without limitation on presumptions of parentage that
53 apply, a judgment of parentage may be obtained under this part by
54 intended parents who are each other's spouse.
55 § 581-206. Jurisdiction. Proceedings pursuant to this article may be
56 instituted in the supreme, family or surrogate's court except for
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1 proceedings pursuant to section 581-204 of this part may be instituted
2 in the supreme or family court.
3 PART 3
4 CHILD OF ASSISTED REPRODUCTION OR ARTIFICIAL INSEMINATION
5 Section 581-301. Scope of article.
6 581-302. Status of donor.
7 581-303. Parentage of child of assisted reproduction or artifi-
8 cial insemination.
9 581-304. Consent to assisted reproduction or artificial insemi-
10 nation.
11 581-305. Limitation on spouses' dispute of parentage of child of
12 assisted reproduction and artificial insemination.
13 581-306. Effect of dissolution of relationship of spouses or
14 withdrawal of consent.
15 581-307. Effect of death of intended parent.
16 § 581-301. Scope of article. This article does not apply to the birth
17 of a child conceived by means of sexual intercourse.
18 § 581-302. Status of donor. A donor is not a parent of a child
19 conceived by means of assisted reproduction or artificial insemination
20 except as provided in section 581-303 of this part.
21 § 581-303. Parentage of child of assisted reproduction or artificial
22 insemination. (a) An individual who provides gametes for assisted
23 reproduction or artificial insemination with the intent to be a parent
24 of the child, or consents to assisted reproduction or artificial insemi-
25 nation as provided in section 581-304 of this part, is a parent of the
26 resulting child for all legal purposes.
27 (b) The court shall issue a judgment of parentage to any participant
28 who is a parent pursuant to this act.
29 § 581-304. Consent to assisted reproduction or artificial insemina-
30 tion. (a) Where the intended parent who gives birth to a child by means
31 of assisted reproduction or artificial insemination is a spouse, the
32 consent of both spouses to the assisted reproduction or artificial inse-
33 mination is presumed and neither spouse may challenge the parentage of
34 the child, except as provided in section 581-305 of this part.
35 (b) Consent to assisted reproduction or artificial insemination by an
36 individual who intends to be a parent and is not the spouse of the
37 intended parent who gives birth to a child by means of assisted reprod-
38 uction or artificial insemination must be in a signed record which
39 acknowledges the intended parents' joint participation and intention to
40 parent together.
41 (c) The failure of a person to sign a record evidencing his/her
42 consent as provided in subdivision (b) of this section shall not
43 preclude a finding that such consent existed if the court finds by clear
44 and convincing evidence that at the time of the child's conception or
45 birth, both the intended parent who gives birth to the child and such
46 person resided in the same household as intimate partners, and held
47 themselves and each other out as the parents of the intended child.
48 § 581-305. Limitation on spouses' dispute of parentage of child of
49 assisted reproduction and artificial insemination. (a) Except as other-
50 wise provided in subdivision (b) of this section, neither spouse may
51 challenge the presumption of parentage of the child unless:
52 (1) Within two years after learning of the birth of the child a
53 proceeding is commenced to adjudicate parentage; and
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1 (2) The court finds by clear and convincing evidence that either
2 spouse did not consent for the non-gestating spouse to be a parent of
3 the child.
4 (b) A proceeding for a judgment of parentage may be maintained at any
5 time if the court determines that:
6 (1) The spouse did not provide gametes for, or consent to, assisted
7 reproduction or artificial insemination by the individual who gave
8 birth; and
9 (2) The spouse and the individual who gave birth have not cohabited
10 since the spouse knew or had reason to know of the pregnancy; and
11 (3) The spouse never openly held out the child as his or her own.
12 (c) The limitation provided in this section applies to a spousal
13 relationship that has been declared invalid after assisted reproduction
14 or artificial insemination.
15 § 581-306. Effect of dissolution of relationship of spouses or with-
16 drawal of consent. (a) If the relationship of spouses is dissolved
17 before transfer of eggs, sperm, or embryos, the former spouse is not a
18 parent of the resulting child unless the former spouse consented in a
19 record that if assisted reproduction or artificial insemination were to
20 occur after a divorce, the former spouse would be a parent of the child.
21 (b) The consent of an individual to assisted reproduction or artifi-
22 cial insemination may be withdrawn by that individual in a record given
23 to the other participants and health care practitioner, if applicable,
24 at any time before the transfer of eggs, sperm, or embryos. An individ-
25 ual who withdraws consent under this section is not a parent of the
26 resulting child.
27 § 581-307. Effect of death of intended parent. Except as otherwise
28 provided in the estates, powers and trusts law, if an individual who
29 consented in a record to be a parent by assisted reproduction or artifi-
30 cial insemination dies before the transfer of eggs, sperm, or embryos,
31 the deceased individual is not a parent of the resulting child unless
32 the deceased individual consented in a signed record that if assisted
33 reproduction or artificial insemination were to occur after death, the
34 deceased individual would be a parent of the child.
35 PART 4
36 GESTATIONAL AGREEMENT
37 Section 581-401. Gestational agreement authorized.
38 581-402. Mental health consultation.
39 581-403. Additional counseling requirements.
40 581-404. Eligibility.
41 581-405. Requirements of gestational agreement.
42 581-406. Termination of gestational agreement.
43 581-407. Gestational agreement: effect of subsequent spousal
44 relationship.
45 581-408. Failure to obtain a judgment of parentage.
46 581-409. Dispute as to gestational agreement.
47 581-410. Inspection of records.
48 581-411. Exclusive, continuing jurisdiction.
49 § 581-401. Gestational agreement authorized. (a) If eligible under
50 this article to enter into a gestational agreement, a gestational carri-
51 er, her spouse if applicable, and the intended parents may enter into a
52 gestational agreement which will be enforceable provided the gestational
53 agreement meets the requirements of this article.
54 (b) A gestational agreement shall not apply to the birth of a child
55 conceived by means of sexual intercourse.
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1 (c) A gestational agreement may provide for payment of compensation
2 under part five of this article.
3 (d) A gestational agreement may not limit the right of the gestational
4 carrier to make decisions to safeguard her health.
5 § 581-402. Mental health consultation. (a) All participants known to
6 the ART provider engaged in a gestational carrier arrangement must
7 obtain a consultation and a favorable mental health evaluation with a
8 mental health professional. The ART provider shall not use the results
9 of the evaluation to arbitrarily deny, including on the basis of race,
10 color, sex, sexual orientation, gender identity, age, religion, national
11 origin, marital status, political belief, or physical handicap, any
12 participant the right to participate in a gestational carrier arrange-
13 ment.
14 (b) During the mental health evaluation, the mental health profes-
15 sional must offer additional counseling to each participant. The offer
16 of counseling is mandatory, but the participant's acceptance of addi-
17 tional counseling is voluntary except as required in subdivision (c) of
18 this section.
19 (c) If the mental health evaluation is not favorable to any of the
20 participants, the mental health professional may provide the partic-
21 ipants with further counseling to assist them in becoming qualified to
22 participate.
23 § 581-403. Additional counseling requirements. (a) No ART procedure
24 that involves the transfer of embryos to a gestational carrier shall be
25 initiated or performed until:
26 (1) All participants made known to the ART provider have been offered
27 additional counseling following the consultation as provided for in
28 section 581-402 of this part; and
29 (2) The mental health professionals have prepared and delivered to the
30 ART providers a statement in a record that he or she has met with the
31 participants and has rendered a favorable mental health evaluation;
32 (b) Prior to any transfer of embryos and prior to execution of any
33 gestational agreement, a participant shall be informed by the ART
34 provider that he or she may request and receive the mental health
35 professional's final recommendation of any other participant, but may
36 only receive the full evaluation for him or herself.
37 § 581-404. Eligibility. (a) A gestational carrier shall be eligible
38 to enter into an enforceable gestational agreement under this article if
39 she has met the following requirements at the time the gestational
40 agreement is executed:
41 (1) She is at least twenty-one years of age; and
42 (2) She has given birth to at least one child; and
43 (3) She has completed a medical evaluation with a health care practi-
44 tioner relating to the anticipated pregnancy; and
45 (4) She has received a favorable mental health evaluation relating to
46 the anticipated gestational carrier arrangement pursuant to section
47 581-402 of this part; and
48 (5) She has undergone legal consultation with independent legal coun-
49 sel regarding the terms of the gestational agreement and the potential
50 legal consequences of the gestational carrier arrangement; and
51 (6) She has, or the gestational agreement stipulates that prior to the
52 embryo transfer, she will obtain, a health insurance policy that covers
53 major medical treatments and hospitalization, and the health insurance
54 policy has a term that extends throughout the duration of the expected
55 pregnancy and for eight weeks after the birth of the child; the policy
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1 may be procured and paid for by the intended parents on behalf of the
2 gestational carrier pursuant to the gestational agreement.
3 (b) The intended parents shall be eligible to enter into an enforcea-
4 ble gestational agreement under this article if he, she, or they have
5 met the following requirements at the time the gestational agreement was
6 executed:
7 (1) He, she, or they have received a favorable mental health evalu-
8 ation relating to the anticipated gestational carrier arrangement pursu-
9 ant to section 581-402 of this part; and
10 (2) He, she, or they have undergone legal consultation with independ-
11 ent legal counsel regarding the terms of the gestational agreement and
12 the potential legal consequences of the gestational carrier arrangement;
13 and
14 (3) He or she is an adult person who is not in a spousal relationship,
15 or adult spouses together, or any two adults who are intimate partners
16 together, except where the intended parent and his or her spouse:
17 (i) are living separate and apart pursuant to a decree or judgment of
18 separation or pursuant to a written agreement of separation subscribed
19 by the parties thereto and acknowledged or proved in the form required
20 to entitle a deed to be recorded; or
21 (ii) have been living separate and apart for at least three years
22 prior to execution of the gestational agreement, then the spouse of the
23 intended parent is not required to be a party to the gestational agree-
24 ment and shall not have parental rights or obligations to the child.
25 § 581-405. Requirements of gestational agreement. (a) A gestational
26 agreement shall be deemed to have satisfied the requirements of this
27 article and be enforceable if it meets the following requirements:
28 (1) It shall be in a signed record verified by the intended parents,
29 the gestational carrier, and her spouse, if any; and
30 (2) It shall be executed prior to the commencement of any medical
31 procedures in furtherance of the gestational carrier arrangement other
32 than medical or mental health evaluations necessary to determine eligi-
33 bility of the parties pursuant to section 581-404 of this part; and
34 (3) It shall be executed by a gestational carrier meeting the eligi-
35 bility requirements of subdivision (a) of section 581-404 of this part
36 and by the gestational carrier's spouse, if any; and
37 (4) It shall be executed by intended parents meeting the eligibility
38 requirements of subdivision (b) of section 581-404 of this part; and
39 (5) The gestational carrier and the intended parents shall have been
40 represented by separate, independent counsel in all matters concerning
41 the gestational carrier arrangement and the gestational agreement; and
42 (6) If the gestational agreement provides for the payment of compen-
43 sation to the gestational carrier, the compensation shall have been
44 placed in escrow with an independent escrow agent prior to the gesta-
45 tional carrier's commencement of any medical procedure other than
46 medical or mental health evaluations necessary to determine the gesta-
47 tional carrier's eligibility pursuant to section 581-402 of this part;
48 and
49 (7) The gestational agreement must include the following terms:
50 (i) As to the gestational carrier and her spouse, if any:
51 (A) the agreement of the gestational carrier to undergo embryo trans-
52 fer and attempt to carry and give birth to the child; and
53 (B) the agreement of the gestational carrier and her spouse, if any,
54 to surrender custody of all resulting children to the intended parents
55 immediately upon the birth; and
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1 (C) the right of the gestational carrier to utilize the services of a
2 health care practitioner of her choosing, after consultation with the
3 intended parents, to provide her care during the pregnancy; and
4 (ii) As to the intended parent or parents:
5 (A) the agreement to accept custody of all resulting children imme-
6 diately upon birth regardless of number, gender, or mental or physical
7 condition; and
8 (B) the agreement to assume sole responsibility for the support of the
9 children immediately upon the children's birth; and
10 (C) the agreement that the rights and obligations of the intended
11 parent or parents under the gestational agreement are not assignable.
12 § 581-406. Termination of gestational agreement. (a) After issuance
13 of a judgment of parentage pursuant to section 581-203 of this article,
14 but before the gestational carrier becomes pregnant by means of assisted
15 reproduction, the gestational carrier, her spouse, if any, or either of
16 the intended parents may terminate the gestational agreement by giving
17 notice of termination in a record to all other parties and any liability
18 resulting therefrom will be determined pursuant to section 581-408 of
19 this part.
20 (b) An individual who terminates a gestational agreement under this
21 section shall file notice of the termination with the court. On receipt
22 of the notice, the court shall vacate the judgment of parentage issued
23 under this article.
24 § 581-407. Gestational agreement: effect of subsequent spousal
25 relationship. After the execution of a gestational agreement under this
26 article, the subsequent spousal relationship of the gestational carrier
27 does not affect the validity of a gestational agreement, her spouse's
28 consent to the agreement shall not be required, and her spouse shall not
29 be the presumed parent of the resulting child.
30 § 581-408. Failure to obtain a judgment of parentage. Where the
31 intended parents or the gestational carrier fail to obtain a judgment of
32 parentage pursuant to section 581-203 of this article, the parentage of
33 a child born as the result of a gestational carrier arrangement will be
34 determined based on the best interests of the children taking into
35 account genetics and the intent of the parties.
36 § 581-409. Dispute as to gestational agreement. (a) Any dispute which
37 is related to a gestational agreement other than disputes as to parent-
38 age shall be resolved by the supreme court, which shall determine the
39 respective rights and obligations of the parties. If a gestational
40 agreement does not meet the requirements of this article, the agreement
41 is not enforceable.
42 (b) Except as expressly provided in the gestational agreement, the
43 intended parent or parents and gestational carrier shall be entitled to
44 all remedies available at law or equity in any dispute related to the
45 gestational agreement.
46 (c) There shall be no specific performance remedy available for a
47 breach by the gestational carrier of a gestational agreement term that
48 requires her to be impregnated.
49 § 581-410. Inspection of records. The proceedings, records, and iden-
50 tities of the individual parties to a gestational agreement under this
51 article shall be sealed except upon the petition of the parties to the
52 gestational agreement or the child born as a result of the gestational
53 carrier arrangement.
54 § 581-411. Exclusive, continuing jurisdiction. Subject to the juris-
55 dictional standards of section seventy-six of the domestic relations
56 law, the court conducting a proceeding under this article has exclusive,
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1 continuing jurisdiction of all matters arising out of the gestational
2 agreement until a child born to the gestational carrier during the peri-
3 od governed by the agreement attains the age of one hundred eighty days.
4 PART 5
5 PAYMENT TO DONORS AND GESTATIONAL CARRIERS
6 Section 581-501. Reimbursement.
7 581-502. Compensation.
8 § 581-501. Reimbursement. (a) A donor who has entered into a valid
9 agreement to be a donor, may receive reimbursement for economic losses
10 incurred in connection with the donation which result from the retrieval
11 or storage of gametes or embryos.
12 (b) Premiums paid for insurance against economic losses directly
13 resulting from the retrieval or storage of gametes or embryos for
14 donation may be reimbursed.
15 § 581-502. Compensation. (a) Compensation may be paid to a donor or
16 gestational carrier based on services rendered, expenses that have been
17 or will be incurred, time, and inconvenience. Under no circumstances may
18 compensation be paid to purchase gametes or embryos or to pay for the
19 relinquishment of a parental interest in a child.
20 (b) The compensation, if any, paid to a donor or gestational carrier
21 must be reasonable and negotiated in good faith between the parties, and
22 said payments to a gestational carrier shall not exceed the duration of
23 the pregnancy and recuperative period of up to eight weeks after the
24 birth of the child.
25 (c) Compensation may not be conditioned upon the purported quality or
26 genome-related traits of the gametes or embryos.
27 (d) Compensation may not be conditioned on actual genotypic or pheno-
28 typic characteristics of the donor or of the child.
29 PART 6
30 FORMATION OF LEGAL PARENT-CHILD RELATIONSHIP AFTER BIRTH OF CHILD
31 Section 581-601. Determination of parenthood.
32 § 581-601. Determination of parenthood. (a) A person seeking to qual-
33 ify for a judgment of parentage under this part is referred to herein as
34 "petitioner."
35 (b) The court shall issue a judgment of parentage to a petitioner who
36 demonstrates the following by clear and convincing evidence:
37 (1) The parent or parents of a child consented to the petitioner's
38 formation of a parent-child relationship with the child, such consent to
39 be expressed in written form, including but not limited to, any of the
40 following examples: a signed letter agreement, an executed contract, a
41 birth announcement, a religious ceremony document, or a school or
42 medical record; and
43 (2) Petitioner resided in the same household with the child for a
44 length of time sufficient, given the age of the child, to have estab-
45 lished with the child a bonded, dependent relationship parental in
46 nature; and
47 (3) Petitioner performed parental functions for the child to a signif-
48 icant degree; and
49 (4) Petitioner formed a parent-child bond with the child.
50 (c) Petitioner under this part shall not include a grandparent of such
51 minor child, a person whose relationship with the child is based on
52 payment by the parent, or a person who has not at any time been an inti-
53 mate partner with a parent of the child.
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1 (d) Petitioner under this section shall be deemed to be the legal
2 parent of such child for all purposes.
3 (e) A judgment of parentage shall be issued pursuant to section
4 581-204 of this article confirming establishment of a parent-child
5 relationship as provided in this part.
6 PART 7
7 MISCELLANEOUS PROVISIONS
8 Section 581-701. Remedial.
9 581-702. Severability.
10 581-703. Parent under section seventy of the domestic relations
11 law.
12 § 581-701. Remedial. This legislation is hereby declared to be a
13 remedial statute and is to be construed liberally to secure the benefi-
14 cial interests and purposes thereof for the best interests of the child.
15 § 581-702. Severability. The invalidation of any part of this legis-
16 lation by a court of competent jurisdiction shall not result in the
17 invalidation of any other part.
18 § 581-703. Parent under section seventy of the domestic relations law.
19 The term "parent" in section seventy of the domestic relations law shall
20 include a person established to be a parent under this article or any
21 other relevant law.
22 § 2. Section 73 of the domestic relations law is REPEALED.
23 § 3. Article 8 of the domestic relations law is REPEALED.
24 § 4. This act shall take effect on the one hundred twentieth day after
25 it shall have become a law. Effective immediately, the addition, amend-
26 ment and/or repeal of any rule or regulation necessary for the implemen-
27 tation of this act on its effective date is authorized to be made on or
28 before such date.
