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A06959 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A6959A
 
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 where the child was conceived through third party reproduction including those children born through gestational surrogacy arrangements.   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 definitions. Part two establishes the requirements and procedure for obtaining a judgment of parentage of a child born through assisted reproduction or pursuant to a gestational carrier arrangement. Part three sets forth provisions for determining the parentage of a child of assisted reproduction 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 gestational carriers. Part six contains miscellaneous provisions, including a declaration that this is a remedial statute and a severability clause. 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, the parentage of children created through donated sperm, eggs and embryos is unsettled or open to attack at the time of the child's birth and thereafter. Confusion or uncertainty regarding the parental rights of donors and intended parents (both genetic and non-genetic) who participate in the conception of the child through assisted reproduction is detrimental to the child and secure family relations. Where children are born to a gestational carrier the parentage of the intended parents may not be recognized under current law. This is not only detrimental to the child; it also causes confusion in many critical situations. For example, a hospital does not know who must give consent when a newborn requires medical procedures. The Child Parent Security Act will provide clear and decisive legal procedures to ensure that children born through third party reproduction have secure and legally recognized parental relationships with their intended parents.The law will make it clear that donors do not have parental rights or obligations and that those rights and obligations reside with the Intended Parents. Importantly, this legislation lifts the ban on surrogacy contracts to permit enforceable 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 seek an "Order of Parentage" from a court, prior to the birth of the child, which becomes effective immediately upon birth. The requirements are designed to ensure that all parties enter into the agreement on an equal footing and with full know- ledge of their duties and obligations. For example, all parties must be represented by independent legal counsel, and the agreement may not limit the right of the carrier to make her own healthcare decisions. Because of existing New York laws, couples facing infertility and same- sex couples are forced to go out of state in order to have a child with the assistance of a gestational carrier. This is overly burdensome to the parents, who have often struggled for many years to have a child. Having an out-of-state gestational carrier may make it difficult, if not impossible, for the parents to fully participate in the pregnancy by attending doctor's appointments, etc. It also requires the participants to use out-of-state clinics and medical professionals despite the fact that New York is home to world-class medical facilities and fertility professionals. New York appellate courts have repeatedly called upon the Legislature to act to provide much needed clarity to the essential question of who is a parent. The need to answer that call is more important today than ever as increasing numbers of children are being conceived and born through third party reproduction. The Child-Parent Security Act clarifies the issue of who is a parent and establishes clear legal procedures which ensure that each child's relationship to his or her parent(s) is legally recognized from birth. As the New York Court of Appeals held in Brooke S.B. v Elizabeth A.C.0 biology and adoption are not the only touchstones to determine parentage. The Child Parent Security Act provides a frame- work for determining the parentage of the large number of children unprotected under existing New York state law.   PRIOR LEGISLATIVE HISTORY: A.4319, 2015 and 2016 referred to judiciary. Same as S.2765, 2015 and 2016 referred to children and families. A.6701, 2013 and 2014 referred to judiciary. Same as S. 4617, 2013 and 2014 referred to children and families. A.10499, 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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