S02765 Summary:

BILL NOS02765
 
SAME ASSAME AS A04319
 
SPONSORHOYLMAN
 
COSPNSRAVELLA, DILAN, GIANARIS, HASSELL-THOMPSON, KENNEDY, LATIMER, PARKER, PERALTA, PERKINS, SANDERS, SAVINO, SERRANO, SQUADRON, STAVISKY
 
MLTSPNSR
 
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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S02765 Actions:

BILL NOS02765
 
01/29/2015REFERRED TO CHILDREN AND FAMILIES
01/06/2016REFERRED TO CHILDREN AND FAMILIES
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S02765 Floor Votes:

There are no votes for this bill in this legislative session.
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S02765 Memo:

Memo not available
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S02765 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2765
 
                               2015-2016 Regular Sessions
 
                    IN SENATE
 
                                    January 29, 2015
                                       ___________
 
        Introduced  by Sens. HOYLMAN, AVELLA, DILAN, GIANARIS, HASSELL-THOMPSON,
          KENNEDY, LATIMER, PARKER, PERALTA, PERKINS, SERRANO, SQUADRON,  STAVI-
          SKY  -- read twice and ordered printed, and when printed to be commit-
          ted to the Committee on Children and Families
 
        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.
                                                                   LBD01093-01-5

        S. 2765                             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.

        S. 2765                             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.

        S. 2765                             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  civil
    15  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 (1) brought
    19  pursuant to a proceeding authorized pursuant to parts three and four  of
    20  this  act upon the petition of (i) a child, or (ii) a parent, or (iii) a
    21  participant, or (iv) the support/enforcement  agency  or  other  govern-
    22  mental  agency  authorized by other law, or (v) a representative author-
    23  ized by law to act for an individual who would otherwise be entitled  to
    24  maintain a proceeding but who is deceased, incapacitated, or a minor, in
    25  order  to  legally  establish the child-parent relationship, (2) or in a
    26  proceeding authorized pursuant to part six of this act upon the petition
    27  of (i) a child, or (ii) a parent, or (iii) a  person  claiming  to  have
    28  formed a parent-child relationship with a child under section 581-601 of
    29  this article, under the following circumstances:
    30    A.  A child born through assisted reproduction or artificial insemina-
    31  tion under part three of this article; or
    32    B. A child born pursuant to a gestational  carrier  arrangement  under
    33  part four of this article; or
    34    C.  A child whose parentage can be established pursuant to part six of
    35  this article.
    36    § 581-202. Proceeding for  judgment  of  parentage  of  a  child  born
    37  through  assisted  reproduction  or  artificial  insemination.    (a)  A
    38  proceeding for a judgment of parentage may be commenced:
    39    (1) if the intended parents reside in New York state,  in  the  county
    40  where  the  intended parents reside any time after pregnancy is achieved
    41  or in the county where the child was born or resides; or
    42    (2) if the intended parents and child do not reside in New York state,
    43  up to ninety days after the birth of the child in the county  where  the
    44  child is born.
    45    (b)  The  petition  for  a  judgment of parentage must be verified and
    46  include the following:
    47    (1) a statement that the intended parents have been residents  of  the
    48  state  for  at least ninety days or if they are not New York state resi-
    49  dents, the child was born in the state; and
    50    (2) a statement from the gestating mother that she became pregnant  as
    51  a  result of the donation of the gametes or embryos and a representation
    52  of non-access during the time of conception; and
    53    (3) a statement  that  the  intended  parents  consented  to  assisted
    54  reproduction  or  artificial insemination pursuant to section 581-304 of
    55  this article; and

        S. 2765                             5
 
     1    (4) where the gametes or embryos were received from a gamete or embryo
     2  storage facility, an attached statement from the facility having custody
     3  of the gametes or embryos  demonstrating  the  donative  intent  of  the
     4  gamete or embryo donor.
     5    (c)  The following shall be deemed sufficient proof of a donor's dona-
     6  tive intent:
     7    (1) in the case of an anonymous donor, a statement from the gamete  or
     8  embryo  storage facility with custody of the gametes or embryos that the
     9  donor relinquished any parental or proprietary interest in  the  gametes
    10  or embryos at the time of donation; and
    11    (2)  in  the case of a donation from a known donor, a notarized state-
    12  ment from the gamete or embryo  donor  acknowledging  the  donation  and
    13  confirming  that  the donors have no parental or proprietary interest in
    14  the gametes or embryos. In the absence of a notarized statement from the
    15  donor, the donor shall be served by  mail  at  the  donor's  last  known
    16  address with notice of the proceeding. Failure to respond to said notice
    17  shall be considered a default and no further notice shall be required.
    18    (d)  Where a petition demonstrates the consent of the intended parents
    19  pursuant to section 581-304 of this article, the donative intent of  the
    20  gamete  or  embryo  donors  and  that  the  pregnancy  resulted from the
    21  donation, the court shall issue a judgment of parentage:
    22    (1) declaring, that upon the birth of the child, the intended  parents
    23  are the only legal parents of the child; and
    24    (2)  ordering  the  intended parents to assume sole responsibility for
    25  the maintenance and support of the child immediately upon the  birth  of
    26  the child; and
    27    (3)  ordering that upon the birth of the child, a copy of the judgment
    28  of parentage be served on the (i) department of health or New York  city
    29  department  of mental health and hygiene, or (ii) registrar of births in
    30  the hospital where the child is born and  directing  that  the  hospital
    31  report  the  parentage  of  the  child  to the appropriate department of
    32  health in conformity with the court order. If an original birth  certif-
    33  icate  has  already issued, the court shall issue an order directing the
    34  appropriate department of health to amend the birth  certificate  in  an
    35  expedited manner and seal the previously issued birth certificate.
    36    § 581-203. Proceeding for judgment of parentage of a child born pursu-
    37  ant  to  a  gestational carrier arrangement.   (a) The proceeding may be
    38  commenced at any time after the gestational agreement has been  executed
    39  by  all of the parties. Any party to the gestational agreement not join-
    40  ing in the petition must be served with notice of the proceeding.  Fail-
    41  ure  to  respond  to  the  notice  shall  be considered a default and no
    42  further notice shall be required.
    43    (b) The petition for a judgment of  parentage  must  be  verified  and
    44  include the following:
    45    (1)  A  statement that the gestational carrier or the intended parents
    46  have been residents of the state for at least ninety days  at  the  time
    47  the gestational agreement was executed; and
    48    (2)  A  certification  from the attorneys representing the petitioners
    49  that the parties are eligible to participate in the gestational  carrier
    50  arrangement  as required by section 581-404 of this article and that the
    51  gestational agreement contains the required terms under section  581-405
    52  of this article; and
    53    (3)  A  statement that the parties entered into the gestational agree-
    54  ment knowingly and voluntarily.

        S. 2765                             6
 
     1    (c) Where a petition satisfies subdivision (b) of  this  section,  the
     2  court   shall   issue   a  judgment  of  parentage,  without  additional
     3  proceedings or documentation:
     4    (1)  Declaring, that upon the birth of a child born during the term of
     5  the gestational agreement, the intended parents are the legal parents of
     6  the child; and
     7    (2) Declaring, that upon the birth of a child born during the term  of
     8  the  gestational  agreement, the gestational carrier, and her spouse, if
     9  any, are not the legal parents of the child; and
    10    (3) Ordering the gestational carrier and her spouse, if any, to trans-
    11  fer the child to the intended parents if this has not already  occurred;
    12  and
    13    (4)  Ordering  the  intended parents to assume sole responsibility for
    14  the maintenance and support of the child immediately upon the  birth  of
    15  the child; and
    16    (5)  Ordering that upon the birth of the child, a copy of the judgment
    17  of parentage be served on the (i) department of health or New York  city
    18  department  of mental health and hygiene, or (ii) registrar of births in
    19  the hospital where the child is born and  directing  that  the  hospital
    20  report  the  parentage  of  the  child  to the appropriate department of
    21  health in conformity with the court order. If an original birth  certif-
    22  icate  has  already issued, the court shall issue an order directing the
    23  appropriate department of health to amend the birth  certificate  in  an
    24  expedited manner and seal the previously issued birth certificate.
    25    (d)  The  agreement  of the intended parents to pay reasonable compen-
    26  sation to the gestational carrier in excess of  reasonable  medical  and
    27  ancillary  costs  shall  not  be  a bar to the issuance of a judgment of
    28  parentage.
    29    § 581-204. Proceeding for judgment  of  parentage  of  a  child  whose
    30  parentage is established pursuant to section 581-601 of this article.  A
    31  proceeding  for  a  judgment  of  parentage may be commenced by verified
    32  petition to establish parentage under section 581-601 of this article at
    33  any time in the county of residence of the child or of a parent, includ-
    34  ing a person asserting to have formed a parent-child relationship with a
    35  child under section 581-601 of this article.  Upon  a  determination  of
    36  parentage under section 581-601 of this article, the court shall issue a
    37  judgment  of  parentage declaring the parents of the child for all legal
    38  purposes.
    39    § 581-205. Judgment of parentage for intended parents who are spouses.
    40  Notwithstanding or without limitation on presumptions of parentage  that
    41  apply,  a  judgment  of  parentage  may  be  obtained under this part by
    42  intended parents who are each other's spouse.
    43    § 581-206. Jurisdiction.  Proceedings pursuant to this article may  be
    44  instituted  in  the  supreme,  family  or  surrogate's  court except for
    45  proceedings pursuant to section 581-204 of this part may  be  instituted
    46  in the supreme or family court.
 
    47                                   PART 3
    48          CHILD OF ASSISTED REPRODUCTION OR ARTIFICIAL INSEMINATION
    49  Section 581-301. Scope of article.
    50          581-302. Status of donor.
    51          581-303. Parentage  of child of assisted reproduction or artifi-
    52                     cial insemination.
    53          581-304. Consent to assisted reproduction or artificial  insemi-
    54                     nation.

        S. 2765                             7
 
     1          581-305. Limitation on spouses' dispute of parentage of child of
     2                     assisted reproduction and artificial insemination.
     3          581-306. Effect  of  dissolution  of  relationship of spouses or
     4                     withdrawal of consent.
     5          581-307. Effect of death of intended parent.
     6    § 581-301. Scope of article.  This article does not apply to the birth
     7  of a child conceived by means of sexual intercourse.
     8    § 581-302. Status of donor.   A donor is  not  a  parent  of  a  child
     9  conceived  by  means of assisted reproduction or artificial insemination
    10  except as provided in section 581-303 of this part.
    11    § 581-303. Parentage of child of assisted reproduction  or  artificial
    12  insemination.    (a)  An  individual  who  provides gametes for assisted
    13  reproduction or artificial insemination with the intent to be  a  parent
    14  of the child, or consents to assisted reproduction or artificial insemi-
    15  nation  as  provided in section 581-304 of this part, is a parent of the
    16  resulting child for all legal purposes.
    17    (b) Upon application by any participant, the court shall issue a judg-
    18  ment of parentage to any participant who is a parent  pursuant  to  this
    19  act.
    20    §  581-304.  Consent  to assisted reproduction or artificial insemina-
    21  tion.  (a) Where the intended parent who gives birth to a child by means
    22  of assisted reproduction or artificial insemination  is  a  spouse,  the
    23  consent of both spouses to the assisted reproduction or artificial inse-
    24  mination  is  presumed and neither spouse may challenge the parentage of
    25  the child, except as provided in section 581-305 of this part.
    26    (b) Consent to assisted reproduction or artificial insemination by  an
    27  individual  who  intends  to  be  a  parent and is not the spouse of the
    28  intended parent who gives birth to a child by means of assisted  reprod-
    29  uction  or  artificial  insemination  must  be  in a signed record which
    30  acknowledges the intended parents' joint participation and intention  to
    31  parent together.
    32    (c)  The  failure  of  a  person  to  sign a record evidencing his/her
    33  consent as provided  in  subdivision  (b)  of  this  section  shall  not
    34  preclude a finding that such consent existed if the court finds by clear
    35  and  convincing  evidence  that at the time of the child's conception or
    36  birth, both the intended parent who gives birth to the  child  and  such
    37  person  resided  in  the  same  household as intimate partners, and held
    38  themselves and each other out as the parents of the intended child.
    39    § 581-305. Limitation on spouses' dispute of  parentage  of  child  of
    40  assisted reproduction and artificial insemination.  (a) Except as other-
    41  wise  provided  in  subdivision  (b) of this section, neither spouse may
    42  challenge the presumption of parentage of the child unless:
    43    (1) Within two years after learning  of  the  birth  of  the  child  a
    44  proceeding is commenced to adjudicate parentage; and
    45    (2)  The  court  finds  by  clear  and convincing evidence that either
    46  spouse did not consent for the non-gestating spouse to be  a  parent  of
    47  the child.
    48    (b)  A proceeding for a judgment of parentage may be maintained at any
    49  time if the court determines that:
    50    (1) The spouse did not provide gametes for, or  consent  to,  assisted
    51  reproduction  or  artificial  insemination  by  the  individual who gave
    52  birth; and
    53    (2) The spouse and the individual who gave birth  have  not  cohabited
    54  since the spouse knew or had reason to know of the pregnancy; and
    55    (3) The spouse never openly held out the child as his or her own.

        S. 2765                             8
 
     1    (c)  The  limitation  provided  in  this  section applies to a spousal
     2  relationship that has been declared invalid after assisted  reproduction
     3  or artificial insemination.
     4    §  581-306.  Effect of dissolution of relationship of spouses or with-
     5  drawal of consent.  If the relationship of spouses is  dissolved  before
     6  transfer  of eggs, sperm, or embryos, the consent of both spouses to the
     7  use of the gametes or the transfer of embryos is required if the spouses
     8  have joint custody and control of the gametes or  embryos.  However,  if
     9  there is a signed record assigning custody and control of the gametes or
    10  embryos  to  one spouse, that spouse may use or transfer said gametes or
    11  embryos without the consent of the former spouse. The former  spouse  is
    12  not  a  parent of the resulting child unless the former spouse consented
    13  in a record that if assisted  reproduction  or  artificial  insemination
    14  were  to  occur  after a divorce or dissolution of the relationship, the
    15  former spouse would be a parent of the child.
    16    § 581-307. Effect of death of intended parent.   Except  as  otherwise
    17  provided  in  the  estates,  powers and trusts law, if an individual who
    18  consented in a record to be a parent by assisted reproduction or artifi-
    19  cial insemination dies before the transfer of eggs, sperm,  or  embryos,
    20  the  deceased  individual  is not a parent of the resulting child unless
    21  the deceased individual consented in a signed record  that  if  assisted
    22  reproduction  or  artificial insemination were to occur after death, the
    23  deceased individual would be a parent of the child.
 
    24                                   PART 4
    25                            GESTATIONAL AGREEMENT
    26  Section 581-401. Gestational agreement authorized.
    27          581-404. Eligibility.
    28          581-405. Requirements of gestational agreement.
    29          581-406. Termination of gestational agreement.
    30          581-407. Gestational agreement:  effect  of  subsequent  spousal
    31                     relationship.
    32          581-408. Failure to obtain a judgment of parentage.
    33          581-409. Dispute as to gestational agreement.
    34          581-410. Inspection of records.
    35          581-411. Exclusive, continuing jurisdiction.
    36    §  581-401.  Gestational agreement authorized.   (a) If eligible under
    37  this article to enter into a gestational agreement, a gestational carri-
    38  er, her spouse if applicable, and the intended parents may enter into  a
    39  gestational agreement which will be enforceable provided the gestational
    40  agreement meets the requirements of this article.
    41    (b)  A  gestational  agreement shall not apply to the birth of a child
    42  conceived by means of sexual intercourse.
    43    (c) A gestational agreement may provide for  payment  of  compensation
    44  under part five of this article.
    45    (d) A gestational agreement may not limit the right of the gestational
    46  carrier to make decisions to safeguard her health.
    47    §  581-404. Eligibility.   (a) A gestational carrier shall be eligible
    48  to enter into an enforceable gestational agreement under this article if
    49  she has met the following  requirements  at  the  time  the  gestational
    50  agreement is executed:
    51    (1) She is at least twenty-one years of age; and
    52    (2)  She has completed a medical evaluation with a health care practi-
    53  tioner relating to the anticipated pregnancy; and

        S. 2765                             9
 
     1    (3) She has undergone legal consultation with independent legal  coun-
     2  sel  regarding  the terms of the gestational agreement and the potential
     3  legal consequences of the gestational carrier arrangement; and
     4    (4) She has, or the gestational agreement stipulates that prior to the
     5  embryo  transfer, she will obtain, a health insurance policy that covers
     6  major medical treatments and hospitalization, and the  health  insurance
     7  policy  has  a term that extends throughout the duration of the expected
     8  pregnancy and for eight weeks after the birth of the child;  the  policy
     9  may  be  procured  and paid for by the intended parents on behalf of the
    10  gestational carrier pursuant to the gestational agreement.
    11    (b) The intended parents shall be eligible to enter into an  enforcea-
    12  ble  gestational  agreement  under this article if he, she, or they have
    13  met the following requirements at the time the gestational agreement was
    14  executed:
    15    (1) He, she, or they have undergone legal consultation with  independ-
    16  ent  legal  counsel regarding the terms of the gestational agreement and
    17  the potential legal consequences of the gestational carrier arrangement;
    18  and
    19    (2) He or she is an adult person who is not in a spousal relationship,
    20  or adult spouses together, or any two adults who are  intimate  partners
    21  together, except where the intended parent and his or her spouse:
    22    (i)  are living separate and apart pursuant to a decree or judgment of
    23  separation or pursuant to a written agreement of  separation  subscribed
    24  by  the  parties thereto and acknowledged or proved in the form required
    25  to entitle a deed to be recorded; or
    26    (ii) have been living separate and apart  for  at  least  three  years
    27  prior  to execution of the gestational agreement, then the spouse of the
    28  intended parent is not required to be a party to the gestational  agree-
    29  ment and shall not have parental rights or obligations to the child.
    30    §  581-405.  Requirements of gestational agreement.  (a) A gestational
    31  agreement shall be deemed to have satisfied  the  requirements  of  this
    32  article and be enforceable if it meets the following requirements:
    33    (1)  It  shall be in a signed record verified by the intended parents,
    34  the gestational carrier, and her spouse, if any; and
    35    (2) It shall be executed prior to  the  commencement  of  any  medical
    36  procedures  in  furtherance of the gestational carrier arrangement other
    37  than medical evaluations  necessary  to  determine  eligibility  of  the
    38  parties pursuant to section 581-404 of this part; and
    39    (3)  It  shall be executed by a gestational carrier meeting the eligi-
    40  bility requirements of subdivision (a) of section 581-404 of  this  part
    41  and by the gestational carrier's spouse, if any; and
    42    (4)  It  shall be executed by intended parents meeting the eligibility
    43  requirements of subdivision (b) of section 581-404 of this part; and
    44    (5) The gestational carrier and the intended parents shall  have  been
    45  represented  by  separate, independent counsel in all matters concerning
    46  the gestational carrier arrangement and the gestational agreement; and
    47    (6) If the gestational agreement provides for the payment  of  compen-
    48  sation  to  the  gestational  carrier,  the compensation shall have been
    49  placed in escrow with an independent escrow agent prior  to  the  gesta-
    50  tional  carrier's  commencement  of  any  medical  procedure  other than
    51  medical evaluations necessary to  determine  the  gestational  carrier's
    52  eligibility; and
    53    (7) The gestational agreement must include the following terms:
    54    (i) As to the gestational carrier and her spouse, if any:
    55    (A)  the agreement of the gestational carrier to undergo embryo trans-
    56  fer and attempt to carry and give birth to the child; and

        S. 2765                            10
 
     1    (B) the agreement of the gestational carrier and her spouse,  if  any,
     2  to  surrender  custody of all resulting children to the intended parents
     3  immediately upon the birth; and
     4    (C)  the right of the gestational carrier to utilize the services of a
     5  health care practitioner of her choosing, after  consultation  with  the
     6  intended parents, to provide her care during the pregnancy; and
     7    (ii) As to the intended parent or parents:
     8    (A)  the  agreement  to accept custody of all resulting children imme-
     9  diately upon birth regardless of number, gender, or mental  or  physical
    10  condition; and
    11    (B) the agreement to assume sole responsibility for the support of the
    12  children immediately upon the children's birth; and
    13    (C)  the  agreement  that  the  rights and obligations of the intended
    14  parent or parents under the gestational agreement are not assignable.
    15    § 581-406. Termination of gestational agreement.   (a) After  issuance
    16  of  a judgment of parentage pursuant to section 581-203 of this article,
    17  but before the gestational carrier becomes pregnant by means of assisted
    18  reproduction, the gestational carrier, her spouse, if any, or either  of
    19  the  intended  parents may terminate the gestational agreement by giving
    20  notice of termination in a record to all other parties and any liability
    21  resulting therefrom will be determined pursuant to  section  581-408  of
    22  this part.
    23    (b)  An  individual  who terminates a gestational agreement under this
    24  section shall file notice of the termination with the court. On  receipt
    25  of  the  notice, the court shall vacate the judgment of parentage issued
    26  under this article.
    27    §  581-407.  Gestational  agreement:  effect  of  subsequent   spousal
    28  relationship.  After the execution of a gestational agreement under this
    29  article,  the subsequent spousal relationship of the gestational carrier
    30  does not affect the validity of a gestational  agreement,  her  spouse's
    31  consent to the agreement shall not be required, and her spouse shall not
    32  be the presumed parent of the resulting child.
    33    §  581-408.  Failure  to  obtain  a judgment of parentage.   Where the
    34  intended parents or the gestational carrier fail to obtain a judgment of
    35  parentage pursuant to section 581-203 of this article, the parentage  of
    36  a  child born as the result of a gestational carrier arrangement will be
    37  determined based on the best interests of the child taking into  account
    38  genetics and the intent of the parties.
    39    § 581-409. Dispute as to gestational agreement.  (a) Any dispute which
    40  is  related to a gestational agreement other than disputes as to parent-
    41  age shall be resolved by the supreme court, which  shall  determine  the
    42  respective  rights  and  obligations  of  the  parties. If a gestational
    43  agreement does not meet the requirements of this article, the  agreement
    44  is not enforceable.
    45    (b)  Except  as  expressly  provided in the gestational agreement, the
    46  intended parent or parents and gestational carrier shall be entitled  to
    47  all  remedies  available  at law or equity in any dispute related to the
    48  gestational agreement.
    49    (c) There shall be no specific  performance  remedy  available  for  a
    50  breach  by  the gestational carrier of a gestational agreement term that
    51  requires her to be impregnated.
    52    § 581-410. Inspection of records.  The proceedings, records, and iden-
    53  tities of the individual parties to a gestational agreement  under  this
    54  article  shall  be sealed except upon the petition of the parties to the
    55  gestational agreement or the child born as a result of  the  gestational
    56  carrier arrangement.

        S. 2765                            11
 
     1    §  581-411. Exclusive, continuing jurisdiction.  Subject to the juris-
     2  dictional standards of section seventy-six  of  the  domestic  relations
     3  law, the court conducting a proceeding under this article has exclusive,
     4  continuing  jurisdiction  of  all matters arising out of the gestational
     5  agreement until a child born to the gestational carrier during the peri-
     6  od governed by the agreement attains the age of one hundred eighty days.
 
     7                                   PART 5
     8                 PAYMENT TO DONORS AND GESTATIONAL CARRIERS
     9  Section 581-501. Reimbursement.
    10          581-502. Compensation.
    11    §  581-501.  Reimbursement.   (a) A donor who has entered into a valid
    12  agreement to be a donor, may  receive  reimbursement  from  an  intended
    13  parent  or  parents  for economic losses incurred in connection with the
    14  donation which result from the retrieval or storage of gametes or  embr-
    15  yos.
    16    (b)  Premiums  paid  for  insurance  against  economic losses directly
    17  resulting from the retrieval  or  storage  of  gametes  or  embryos  for
    18  donation may be reimbursed.
    19    §  581-502. Compensation.   (a) Compensation may be paid to a donor or
    20  gestational carrier based on services rendered, expenses that have  been
    21  or will be incurred, time, and inconvenience. Under no circumstances may
    22  compensation  be  paid  to purchase gametes or embryos or to pay for the
    23  relinquishment of a parental interest in a child.
    24    (b) The compensation, if any, paid to a donor or  gestational  carrier
    25  must be reasonable and negotiated in good faith between the parties, and
    26  said  payments to a gestational carrier shall not exceed the duration of
    27  the pregnancy and recuperative period of up to  eight  weeks  after  the
    28  birth of the child.
    29    (c)  Compensation may not be conditioned upon the purported quality or
    30  genome-related traits of the gametes or embryos.
    31    (d) Compensation may not be conditioned on actual genotypic or  pheno-
    32  typic characteristics of the donor or of the child.
 
    33                                   PART 6
    34      FORMATION OF LEGAL PARENT-CHILD RELATIONSHIP AFTER BIRTH OF CHILD
    35  Section 581-601. Determination of parenthood.
    36    § 581-601. Determination of parenthood.  (a) A person seeking to qual-
    37  ify for a judgment of parentage under this part is referred to herein as
    38  "putative parent".
    39    (b)  The court shall issue a judgment of parentage to a petitioner who
    40  demonstrates the following by clear and convincing evidence:
    41    (1) Any parent or  parents  of  a  child  consented  to  the  putative
    42  parent's  formation  of a parent-child relationship with the child, such
    43  consent to be expressed in written form, including but not  limited  to,
    44  any  of  the  following examples: a signed letter agreement, an executed
    45  contract, a birth announcement, a  religious  ceremony  document,  or  a
    46  school or medical record; and
    47    (2)  The  putative parent resided in the same household with the child
    48  for a length of time sufficient, given the age of  the  child,  to  have
    49  established  with the child a bonded, dependent relationship parental in
    50  nature; and
    51    (3) The putative parent performed parental functions for the child  to
    52  a significant degree; and
    53    (4) The putative parent formed a parent-child bond with the child; and
    54    (5) Such judgment is in the best interest of the child.

        S. 2765                            12
 
     1    (c)  A putative parent under this part shall not include a grandparent
     2  of such minor child, a person whose relationship with the child is based
     3  on payment by the parent, or a person who has not at any  time  been  an
     4  intimate partner with a parent of the child.
     5    (d)  The  court shall appoint an attorney for the child to represent a
     6  minor who is the subject of the proceeding.
     7    (e) A parent's withdrawal of consent to the parent-child  relationship
     8  subsequent  to  the  occurrence of the factors in paragraphs one through
     9  five of subdivision (b) of this  section  shall  not  change  the  legal
    10  parental  status  or rights of the putative parent qualifying under this
    11  part.
    12    (f) The putative parent qualifying as  a  parent  under  this  section
    13  shall be deemed to be the legal parent of such child for all purposes.
    14    (g)  A  judgment  of  parentage  shall  be  issued pursuant to section
    15  581-204 of this  article  confirming  establishment  of  a  parent-child
    16  relationship as provided in this part.
 
    17                                   PART 7
    18                          MISCELLANEOUS PROVISIONS
    19  Section 581-701. Remedial.
    20          581-702. Severability.
    21          581-703. Parent  under section seventy of the domestic relations
    22                     law.
    23    § 581-701. Remedial.   This legislation is hereby  declared  to  be  a
    24  remedial  statute and is to be construed liberally to secure the benefi-
    25  cial interests and purposes thereof for the best interests of the child.
    26    § 581-702. Severability.  The invalidation of any part of this  legis-
    27  lation  by  a  court  of  competent jurisdiction shall not result in the
    28  invalidation of any other part.
    29    § 581-703. Parent under section seventy of the domestic relations law.
    30  The term "parent" in section seventy of the domestic relations law shall
    31  include a person established to be a parent under this  article  or  any
    32  other relevant law.
    33    § 2. Section 73 of the domestic relations law is REPEALED.
    34    § 3. Article 8 of the domestic relations law is REPEALED.
    35    § 4. This act shall take effect on the one hundred twentieth day after
    36  it  shall have become a law. Effective immediately, the addition, amend-
    37  ment and/or repeal of any rule or regulation necessary for the implemen-
    38  tation of this act on its effective date is authorized to be made on  or
    39  before such date.
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