NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1071C
SPONSOR: Paulin (MS) TITLE OF BILL: An act to amend the family court act, in relation to
judgments of parentage of children conceived through assisted reprod-
uction or pursuant to surrogacy agreements; to amend the domestic
relations law, in relation to restricting genetic surrogate parenting
contracts; to amend the public health law, in relation to voluntary
acknowledgments of parentage, gestational surrogacy and regulations
concerning ova donation; to amend the general business law, in relation
to the regulation of surrogacy programs; and to repeal section 73 of the
domestic relations law, relating to legitimacy of children born by arti-
ficial insemination
PURPOSE OR GENERAL IDEA OF BILL:
To legally establish a child's relationship to his or her parents where
the child is conceived through assisted reproduction, except for chil-
dren born to a person acting as surrogate who contributed the gametes
used in conception.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill adds a new article 5-C to the Family Court Act
entitled "Judgments of Parentage for Children Conceived Through Assisted
Reproduction or Pursuant to Surrogacy Agreements."
PART ONE: GENERAL PROVISIONS
-Section 581-101 establishes the purpose of the bill.
-Section 581-102 establishes definitions used throughout article 5-C.
PART TWO: JUDGMENT OF PARENTAGE
-Section 581-201 establishes civil proceedings to adjudicate the legal
parentage of a child born via assisted reproduction or a surrogacy
agreement (i.e. judgments of parentage).
-Section 581-202 establishes the conditions under which a proceeding for
judgment of parentage may be commenced and adjudicated to determine
parentage of a child conceived through assisted reproduction.
-Section 581-203 establishes the conditions under which a proceeding for
judgment of parentage may be commenced and adjudicated to determine
parentage of a child conceived pursuant to a surrogacy agreement.
-Section 581-204 allows parents who are each others' spouses to obtain a
judgment of parentage, notwithstanding any other legal presumptions of
parentage.
-Section 581-205 states that court records related to judgments of
parentage are sealed, but parties to the proceeding and resulting chil-
dren have the right to inspect the record, including, but not limited
to, the name of the person acting as surrogate and any known donors.
-Section 581-206 allows judgment of parentage proceedings to be initi-
ated in either Supreme Court or Family Court.
PART THREE: CHILD OF ASSISTED REPRODUCTION
-Section 581-301 clarifies that Article 5-C does not apply to the birth
of a child conceived through sexual intercourse.
-Section 581-302 clarifies that a donor in not a legal parent of a child
conceived through assisted reproduction.
-Section 581-303 clarifies that a person who provides gametes for, or
consents to, assisted reproduction with the intent to be a parent of the
resulting child with the consent of the gestating parent is a legal
parent of the resulting child.
-Section 581-304 establishes when consent to assisted reproduction is
presumed and how to prove consent when it is not presumed.
-Section 581-305 places limitations on a spouse's ability to dispute the
parentage of a child born through assisted reproduction.
-Section 581-306 discusses the effect of embryo disposition agreements
between intended parents which transfer legal rights and dispositional
control of the embryo(s) to one intended parent.
-Section 581-307 clarifies that a person who consented to be a parent by
assisted reproduction who dies before the transfer of gametes is not the
legal parent of any resulting children unless they consented in a signed
record to be the parent to children conceived through assisted reprod-
uction after their death.
PART FOUR: SURROGACY AGREEMENT
-Section 581-401 authorizes surrogacy agreements that meet the require-
ments of this article, establishes that such agreements may provide for
compensation, and clarifies that a surrogacy agreement shall not apply
to the birth of a child conceived through sexual intercourse.
-Section 581-402 establishes the eligibility requirements for persons
acting as surrogates and intended parents who wish to enter surrogacy
agreements, including the requirement that the person acting as surro-
gate and at least one intended parent be United States citizens or
lawful permanent residents.
-Section 581-403 establishes the requirements that must be met for a
surrogacy agreement to be enforceable.
-Section 581-404 clarifies that if the person acting as surrogate gets
married after executing a surrogacy agreement, or intended parents get
separated or divorced after executing a surrogacy agreement, it does not
affect the validity of the agreement or any of the rights, duties or
responsibilities outlined in the agreement.
-Section 581-405 provides that any party to a surrogacy agreement may
terminate the agreement before the person acting as surrogate has become
pregnant.
-Section 581-406 clarifies that upon birth of a child under an enforcea
ble surrogacy agreement, each intended parent is the legal parent of the
child and neither the person acting as surrogate or their spouse (if
any) is the legal parent.
-Section 581-407 establishes that surrogacy agreements that don't meet
the material requirements of Article 5-C are not enforceable, and in
such cases the court will determine parentage based on the intent of the
parties, taking into account the best interests of the child.
-Section 581-408 establishes that if there is no surrogacy agreement,
the court will determine parentage of the child under New York law.
-Section 581-409 gives the Supreme Court jurisdiction to hear any
dispute related to a surrogacy agreement other than disputes as to
parentage, and clarifies that there is no specific performance remedy
that would require a person acting as surrogate to either be impregnat-
ed, terminate or continue the pregnancy, or to reduce or retain the
number of fetuses or embryos they are carrying.
PART FIVE: PAYMENT TO DONORS AND PERSONS ACTING AS SURROGATES
-Section 581-501 establishes that donors who enter into valid agreements
to be a donor may reimbursed for economic losses incurred in connection
with donation.
-Section 581-502 establishes that compensation to a donor or person
acting as surrogate may be paid based on medical risks, physical discom-
fort, inconvenience and the responsibilities they are undertaking in
connection with their participation in assisted reproduction. Such
compensation must be reasonable and negotiated in good faith between
parties, and cannot be conditioned upon the purported quality or traits
of the gametes or embryos, or the actual genotypic or phenotypic charac-
teristics of the donor or any resulting children.
PART SIX: SURROGATES' BILL OF RIGHTS
This part enumerates rights that apply to any person acting as surrogate
in New York, and establishes that unless otherwise provided by law, any
written or verbal agreement purporting to waive or limit any of the
rights enumerated in this part are void as against public policy.
The rights enumerated in this part include: health and welfare deci-
sions; independent legal counsel; health insurance and medical costs;
counseling; life insurance; and termination of surrogacy agreements.
PART SEVEN: MISCELLANEOUS PROVISIONS
-Section 581-701 establishes that the article is to be construed liber-
ally to secure the beneficial interests and purposes thereof for the
best interests of the child.
-Section 581-702 is a severability clause.
-Section 581-703 establishes that the term "parent" as used in section
70 of the Domestic Relations Law includes parents established pursuant
to this article.
-Section 581-704 establishes that unless context indicates otherwise,
singular words may be interpreted as plural and vice versa.
Section 2 of the bill repeals section 73 of the Domestic Relations Law.
Sections 3 through 6 of the bill amend Article 8 of the Domestic
Relations Law to no longer apply the legal prohibition on surrogacy
contracts to surrogacy agreements authorized and regulated under section
1 of this bill, but continuing to render void and enforceable so called
"traditional" surrogacy agreements where the person acting as surrogate
provided, the egg used in conceiving the resulting child.
Section 7 of the bill amends section 4135-b of the Public Health Law to
update and modernize terminology throughout the section to reflect same-
sex parents and conform the provisions of the section with the judgments
of parentage and surrogacy agreements authorized and regulated in
section 1 of this bill.
Section 8 of the bill amends the heading of article 8 of the Domestic
Relations Law.
Section 9 of the bill adds a new article 44 to the General Business Law
entitled "Regulation of Surrogacy Programs."
-Section 1400 establishes definitions used throughout the newly-created
article.
-Section 1401 applies the newly-created article to any agency, agent,
business or individual engaged in, arranging or facilitating trans-
actions contemplated in a surrogacy agreement if the program does busi-
ness in New York, a person acting as surrogate party to a surrogacy
agreement resides in New York during the term of the agreement, or any
medical procedure under the surrogacy agreement is performed in New
York.
-Section 1402 states that surrogacy programs to which the newly-created
article applies: must keep all funds paid by or on behalf of intended
parents in separate, licensed escrow funds; may not be owned or managed
by any attorney representing a party to a surrogacy agreement; may not
make or receive paid referrals to attorneys representing any party to a
surrogacy agreement, or any health care providers providing health
services to any party to a surrogacy agreement; must be licensed to
operate in New York State pursuant to regulations promulgated by the
Department of Financial Services in consultation with the Department of
Health; and must ensure that all potential parties to a surrogacy agree-
ment are provided with written notice of the Surrogates' Bill of Rights
enumerated in setions 581601 to 581-607 of the Family Court Act.
-Section 1403 directs the Department of Financial Services, in consulta-
tion with the Department of Health to promulgate regulations to imple-
ment the requirements of this newly-created article, and annually report
to the Legislature regarding the practices of surrogacy programs and all
business transactions related to surrogacy, along with recommendations
for any necessary legislative changes.
Section 10 of the bill creates a new article 25-B of the Public Health
Law entitled "Gestational Surrogacy.
-Section 2599-C requires the Commissioner of the Department of Health to
promulgate regulations on the practice of gestational surrogacy, includ-
ing establishing guidelines and procedures for obtaining fully informed
consent from potential persons acting as surrogates, developing and
distributing informational material relating to gestational surrogacy,
and establishing a voluntary central tracking registry of persons acting
as. surrogates.
Section 11 of the bill adds a new subdivision 4 to section 4365 of the
Public Health Law to require the Commissioner of the Department of
Health, in consultation with the Transplant Council, to promulgate regu-
lations on the donation of ova (i.e. eggs), including establishing
guidelines and procedures for obtaining fully informed consent from
donors, developing and distributing informational material, relating to
egg donation, and establishing a voluntary central tracking registry of
egg donors.
Section 12 of the bill is 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 person acting as surro-
gate 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.
This bill will provide clear and decisive legal procedures to ensure
that children born through assisted 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 obli-
gations and that those rights and obli gations reside with the intended
parents.
Importantly, this legislation lifts the existing ban on surrogacy
contracts to permit enforceable surrogacy 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 a "Judgment 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 person acting as surrogate to make their 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 person acting as surrogate. This is overly burden-
some to the parents, who have often struggled for many years to have a
child. Having an out-of-state person acting as surrogate 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
assisted reproduction. This bill 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.O
biology and adoption are not the only touchstones to determine parent-
age. This legislation provides a framework for determining the parentage
of the large number of children unprotected under existing New York
state law.
PRIOR LEGISLATIVE HISTORY:
S.0017-A of 2017-2018 (Hoylman): Died on 3rd Reading; Died in Judiciary
A.6959-A of 2017-2018 (Paulin): Died in Judiciary
S.2765 of 2015-2016 (Hoylman): Died in Children & Families
A.4319 of 2015-2016 (Paulin): Died in Judiciary
S.4617 of 2013-2014 (Hoylman): Died in Children & Families
A.6701 of 2013-2014 (Paulin): Died in Judiciary
FISCAL IMPLICATION:
To be determined.
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 are authorized to be made on or before
such date.
