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A01071 Summary:

BILL NOA01071C
 
SAME ASSAME AS S02071-B
 
SPONSORPaulin (MS)
 
COSPNSRZebrowski, Weprin, Galef, Otis, Stirpe, Benedetto, Bronson, Mosley, Ortiz, Dinowitz, Rosenthal L, Steck, Simon, Woerner, Carroll, De La Rosa, Simotas, Lavine, Epstein, Dickens, Reyes, Walker, Rodriguez, Stern, Pichardo, Cruz, Blake, Quart, Niou, Sayegh, D'Urso
 
MLTSPNSREnglebright, Gottfried, Peoples-Stokes, Thiele
 
Add Art 5-C Parts 1 - 7 581-101 - 581-704, Fam Ct Act; rpld 73, amd 121 - 124, Art 8 Head, Dom Rel L; amd 4135-b & 4365, add Art 25-B 2599-cc, Pub Health L; add Art 44 1400 - 1403, Gen Bus L
 
Relates to judgments of parentage for children conceived through assisted reproduction or pursuant to surrogacy agreements; restricts genetic surrogate parenting contracts; regulates surrogacy programs; repeals provisions relating to the legitimacy of children born by artificial insemination.
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A01071 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         1071--C
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 14, 2019
                                       ___________
 
        Introduced  by  M. of A. PAULIN, ZEBROWSKI, WEPRIN, GALEF, JAFFEE, OTIS,
          COOK, STIRPE, BENEDETTO, BRONSON, MOSLEY, ORTIZ,  DINOWITZ,  L. ROSEN-
          THAL,  STECK,  SIMON,  WOERNER,  SOLAGES,  CARROLL, DE LA ROSA, ROZIC,
          SIMOTAS, LAVINE, EPSTEIN, DICKENS, REYES,  WALKER,  RODRIGUEZ,  STERN,
          PICHARDO, CRUZ, BLAKE, QUART, NIOU, SAYEGH -- Multi-Sponsored by -- M.
          of  A. ENGLEBRIGHT, GOTTFRIED, PEOPLES-STOKES, THIELE -- read once and
          referred to the Committee on Judiciary -- committee  discharged,  bill
          amended,  ordered reprinted as amended and recommitted to said commit-
          tee -- reported and referred to the Committee on  Codes  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to  said  committee  -- again reported from said committee with amend-
          ments, ordered reprinted as amended and recommitted to said committee
 
        AN ACT to amend the family  court  act,  in  relation  to  judgments  of
          parentage  of  children  conceived  through  assisted  reproduction 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 regu-
          lation of surrogacy programs; and to repeal section 73 of the domestic
          relations law, relating to legitimacy of children born  by  artificial
          insemination
 
          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        JUDGMENTS OF PARENTAGE OF CHILDREN CONCEIVED THROUGH ASSISTED
     5              REPRODUCTION OR PURSUANT TO SURROGACY AGREEMENTS
     6  PART 1. General provisions (581-101 - 581-102)
     7       2. Judgment of parentage (581-201 - 581-206)
     8       3. Child of assisted reproduction (581-301 - 581-307)
     9       4. Surrogacy agreement (581-401 - 581-409)
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01279-28-9

        A. 1071--C                          2
 
     1       5. Payment to donors and persons acting as  surrogates  (581-501  -
     2            581-502)
     3       6. Surrogates' bill of rights (581-601 - 581-607)
     4       7. Miscellaneous provisions (581-701 - 581-704)
 
     5                                   PART 1
     6                             GENERAL PROVISIONS
     7  Section 581-101. Purpose.
     8          581-102. Definitions.
     9    §  581-101.  Purpose. The purpose of this article is to legally estab-
    10  lish a child's relationship to his or her parents  where  the  child  is
    11  conceived  through  assisted  reproduction except for children born to a
    12  person  acting  as  surrogate  who  contributed  the  gametes  used   in
    13  conception.  No fertilized egg, embryo or fetus shall have any independ-
    14  ent  rights  under the laws of this state, nor shall any fertilized egg,
    15  embryo or fetus be viewed as a child under the laws of this state.
    16    § 581-102. Definitions.  (a) "Assisted reproduction" means a method of
    17  causing pregnancy other than sexual intercourse and includes but is  not
    18  limited to:
    19    1. intrauterine or vaginal insemination;
    20    2. donation of gametes;
    21    3. donation of embryos;
    22    4. in vitro fertilization and transfer of embryos; and
    23    5. intracytoplasmic sperm injection.
    24    (b)  "Child" means a born individual of any age whose parentage may be
    25  determined under this act or other law.
    26    (c) "Compensation" means payment  of  any  valuable  consideration  in
    27  excess of reasonable medical and ancillary costs.
    28    (d) "Donor" means an individual who does not intend to be a parent who
    29  produces  gametes  and  provides  them to another person, other than the
    30  individual's spouse, for use in assisted reproduction.   The  term  does
    31  not  include  a person who is a parent under part three of this article.
    32  Donor also includes an individual who had dispositional  control  of  an
    33  embryo  who  then  transfers  dispositional control and relinquishes all
    34  present and future parental and inheritance rights and obligations to  a
    35  resulting child.
    36    (e)  "Embryo"  means  a  cell  or  group of cells containing a diploid
    37  complement of chromosomes or group  of  such  cells,  not  a  gamete  or
    38  gametes,  that has the potential to develop into a live born human being
    39  if transferred into the body of  a  person  under  conditions  in  which
    40  gestation may be reasonably expected to occur.
    41    (f) "Embryo transfer" means all medical and laboratory procedures that
    42  are  necessary  to effectuate the transfer of an embryo into the uterine
    43  cavity.
    44    (g) "Gamete" means a cell containing a haploid complement of DNA  that
    45  has  the  potential to form an embryo when combined with another gamete.
    46  Sperm and eggs are gametes.
    47    (h) "Surrogacy  agreement"  is  an  agreement  between  at  least  one
    48  intended parent and a person acting as surrogate intended to result in a
    49  live  birth  where  the  child  will  be the legal child of the intended
    50  parents.
    51    (i) "Person acting  as  surrogate"  means  an  adult  person,  not  an
    52  intended  parent,  who enters into a surrogacy agreement to bear a child
    53  who will be the legal child of the intended parent or parents so long as
    54  the person acting as surrogate has not provided the egg used to conceive
    55  the resulting child.

        A. 1071--C                          3
 
     1    (j) "Health care practitioner" means an individual licensed or  certi-
     2  fied  under  title  eight  of the education law acting within his or her
     3  scope of practice.
     4    (k)  "Intended parent" is an individual who manifests the intent to be
     5  legally bound as the parent of a child resulting from  assisted  reprod-
     6  uction  or  a  surrogacy agreement provided he or she meets the require-
     7  ments of this article.
     8    (l) "In vitro fertilization" means the formation  of  a  human  embryo
     9  outside the human body.
    10    (m)  "Parent"  means  an individual who has established a parent-child
    11  relationship under this act or other law.
    12    (n) "Participant" is an individual who either: provides a gamete  that
    13  is  used  in  assisted  reproduction, is an intended parent, is a person
    14  acting as surrogate, or is the spouse of an intended  parent  or  person
    15  acting as surrogate.
    16    (o)  "Record"  means  information  inscribed  in  a tangible medium or
    17  stored in an electronic or other medium that is retrievable in perceiva-
    18  ble form.
    19    (p) "Retrieval" means the procurement of eggs or sperm from  a  gamete
    20  provider.
    21    (q)  "Spouse"  means  an  individual  married to another, or who has a
    22  legal relationship entered into under the laws of the United  States  or
    23  of  any  state,  local  or  foreign jurisdiction, which is substantially
    24  equivalent to a marriage, including a civil union or  domestic  partner-
    25  ship.
    26    (r) "State" means a state of the United States, the District of Colum-
    27  bia,  Puerto Rico, the United States Virgin Islands, or any territory or
    28  insular possession subject to the jurisdiction of the United States.
    29    (s) "Transfer" means the placement of an embryo or  gametes  into  the
    30  body of a person with the intent to achieve pregnancy and live birth.
 
    31                                   PART 2
    32                            JUDGMENT OF PARENTAGE
    33  Section 581-201. Judgment of parentage.
    34          581-202. Proceeding   for  judgment  of  parentage  of  a  child
    35                     conceived through assisted reproduction.
    36          581-203.  Proceeding  for  judgment  of  parentage  of  a  child
    37                     conceived pursuant to a surrogacy agreement.
    38          581-204. Judgment  of  parentage  for  intended  parents who are
    39                     spouses.
    40          581-205. Inspection of records.
    41          581-206. Jurisdiction, and exclusive continuing jurisdiction.
    42    § 581-201. Judgment of parentage.  (a) A civil proceeding may be main-
    43  tained to adjudicate the parentage of a child  under  the  circumstances
    44  set  forth  in  this  article.  This proceeding is governed by the civil
    45  practice law and rules.
    46    (b) A judgment of parentage may be issued prior to birth but shall not
    47  become effective until the birth of the child.
    48    (c) A petition for a judgment of parentage or nonparentage of a  child
    49  conceived through assisted reproduction may be initiated by (1) a child,
    50  or  (2)  a parent, or (3) a participant, or (4) a person with a claim to
    51  parentage, or (5) the support/enforcement agency or  other  governmental
    52  agency  authorized  by  other law, or (6) a representative authorized by
    53  law to act for an individual who would otherwise be entitled to maintain
    54  a proceeding but who is deceased, incapacitated, or a minor, in order to
    55  legally establish the child-parent relationship of either a  child  born

        A. 1071--C                          4
 
     1  through  assisted  reproduction  under  part  three of this article or a
     2  child born pursuant to a surrogacy agreement under  part  four  of  this
     3  article.
     4    §  581-202.  Proceeding for judgment of parentage of a child conceived
     5  through assisted reproduction.   (a) A  proceeding  for  a  judgment  of
     6  parentage  with  respect  to  a child conceived through assisted reprod-
     7  uction may be commenced:
     8    (1) if the intended parent resides in New York state,  in  the  county
     9  where  the  intended parent resides any time after pregnancy is achieved
    10  or in the county where the child was born or resides; or
    11    (2) if the intended parent and child do not reside in New York  state,
    12  up  to  ninety days after the birth of the child in the county where the
    13  child was born.
    14    (b) The petition for a judgment of parentage must be verified.
    15    (c) Where a petition includes the following statements, the court must
    16  adjudicate any intended parent to be the parent of the child:
    17    (1) a statement that an intended parent has been  a  resident  of  the
    18  state  for  at  least  ninety days or if an intended parent is not a New
    19  York state resident, that the child will be or was  born  in  the  state
    20  within ninety days of filing; and
    21    (2)  a statement from the gestating intended parent that the gestating
    22  intended parent became pregnant as a result  of  assisted  reproduction;
    23  and
    24    (3)  in cases where there is a non-gestating intended parent, a state-
    25  ment from the  gestating  intended  parent  and  non-gestating  intended
    26  parent  that  the  non-gestating  intended  parent consented to assisted
    27  reproduction pursuant to section 581-304 of this article; and
    28    (4) proof of any donor's donative intent.
    29    (d) The following shall be deemed sufficient proof of a donor's  dona-
    30  tive intent for purposes of this section:
    31    (1) in the case of an anonymous donor or where gametes or embryos have
    32  previously  been  relinquished to a gamete or embryo storage facility or
    33  in the presence of a health care  practitioner,  a  statement  from  the
    34  gamete  or  embryo storage facility or health care practitioner that the
    35  donor does not retain  any  parental  or  proprietary  interest  in  the
    36  gametes or embryos; or
    37    (2) in the case of a donation from a known donor, either: a.  a record
    38  from  the gamete or embryo donor acknowledging the donation and confirm-
    39  ing that the donor has  no  parental  or  proprietary  interest  in  the
    40  gametes  or  embryos.    The  record  shall  be  signed by the gestating
    41  intended parent and the gamete or embryo donor. The record may  be,  but
    42  is not required to be, signed:
    43    (i) before a notary public, or
    44    (ii) before two witnesses who are not the intended parents, or
    45    (iii) before a health care practitioner; or
    46    b.  clear  and  convincing  evidence  that  the gamete or embryo donor
    47  agreed, prior to conception, with the gestating parent  that  the  donor
    48  has no parental or proprietary interest in the gametes or embryos.
    49    (3)  In  the  absence  of  evidence  pursuant to paragraph two of this
    50  subdivision, notice shall be given to the donor  at  least  twenty  days
    51  prior  to  the  proceeding  by  delivery  of  a copy of the petition and
    52  notice. Upon a showing to the court, by affidavit or  otherwise,  on  or
    53  before  the  date  of  the proceeding or within such further time as the
    54  court may allow, that personal service cannot be effected at the donor's
    55  last known address with reasonable effort, notice may be given,  without
    56  prior  court order therefore, at least twenty days prior to the proceed-

        A. 1071--C                          5
 
     1  ing by registered or certified mail directed to the donor's  last  known
     2  address.  Notice  by  publication shall not be required to be given to a
     3  donor entitled to notice pursuant to the provisions of this section.
     4    (4)  Notwithstanding  the  above,  where  sperm  is provided under the
     5  supervision of a health care practitioner  to  someone  other  than  the
     6  sperm  provider's  intimate  partner  or  spouse without a record of the
     7  sperm provider's intent to parent, the sperm provider is presumed to  be
     8  a donor and notice is not required.
     9    (e) In cases not covered by subdivision (c) of this section, the court
    10  shall  adjudicate  the parentage of the child consistent with part three
    11  of this article.
    12    (f) Where the requirements of subdivision (c) of this section are  met
    13  or where the court finds the intended parent to be a parent under subdi-
    14  vision  (e) of this section, the court shall issue a judgment of parent-
    15  age:
    16    (1) declaring, that upon the birth of the child, the  intended  parent
    17  is the legal parent of the child; and
    18    (2)  ordering  the  intended  parent  to assume responsibility for the
    19  maintenance and support of the child immediately upon the birth  of  the
    20  child; and
    21    (3)  if  there  is a donor, ordering that the donor is not a parent of
    22  the child; and
    23    (4) ordering that upon the birth of the child, a copy of the  judgment
    24  of  parentage be served on the (i) department of health or New York city
    25  department of mental health and hygiene, or (ii) registrar of births  in
    26  the  hospital  where  the  child is born and directing that the hospital
    27  report the parentage of the  child  to  the  appropriate  department  of
    28  health  in conformity with the court order. If an original birth certif-
    29  icate has already issued, the court shall issue an order  directing  the
    30  appropriate  department  of  health to amend the birth certificate in an
    31  expedited manner and seal the previously issued birth certificate.
    32    § 581-203. Proceeding for judgment of parentage of a  child  conceived
    33  pursuant  to a surrogacy agreement.  (a) The proceeding may be commenced
    34  at any time after the surrogacy agreement has been executed  by  all  of
    35  the  parties.  Any  party  to the surrogacy agreement not joining in the
    36  petition must be served with notice of the proceeding.
    37    (b) The petition for a judgment of  parentage  must  be  verified  and
    38  include the following:
    39    (1) a statement that the person acting as surrogate or at least one of
    40  the intended parents has been a resident of the state for at least nine-
    41  ty days at the time the surrogacy agreement was executed; and
    42    (2) a certification from the attorney representing the intended parent
    43  or  parents and the attorney representing the person acting as surrogate
    44  that the requirements of part four of this article have been met; and
    45    (3) a statement from all parties to the surrogacy agreement that  they
    46  entered into the surrogacy agreement knowingly and voluntarily.
    47    (c)  Where  a  petition  satisfies subdivision (b) of this section the
    48  court  shall  issue  a  judgment  of   parentage,   without   additional
    49  proceedings or documentation:
    50    (1)  declaring,  that upon the birth of the child born during the term
    51  of the surrogacy agreement, the intended parent or parents is the  legal
    52  parent or parents of the child; and
    53    (2)  declaring,  that upon the birth of the child born during the term
    54  of the surrogacy agreement, the person  acting  as  surrogate,  and  the
    55  spouse  of  the  person  acting  as  surrogate, if any, is not the legal
    56  parent of the child; and

        A. 1071--C                          6
 
     1    (3) ordering the person acting as surrogate  and  the  spouse  of  the
     2  person  acting  as  surrogate,  if  any,  to  transfer  the child to the
     3  intended parent or parents if this has not already occurred; and
     4    (4)  ordering  the intended parent or parents to assume responsibility
     5  for the maintenance and support of the child immediately upon the  birth
     6  of the child; and
     7    (5)  ordering that upon the birth of the child, a copy of the judgment
     8  of parentage be served on the (i) department of health or New York  city
     9  department  of mental health and hygiene, or (ii) registrar of births in
    10  the hospital where the child is born and  directing  that  the  hospital
    11  report  the  parentage  of  the  child  to the appropriate department of
    12  health in conformity with the court order. If an original birth  certif-
    13  icate  has  already issued, the court shall issue an order directing the
    14  appropriate department of health to amend the birth  certificate  in  an
    15  expedited manner and seal the previously issued birth certificate.
    16    (d) In the event the certification required by paragraph two of subdi-
    17  vision  (b)  of  this  section  cannot be made because of a technical or
    18  non-material deviation from the requirements of this article; the  court
    19  may nevertheless enforce the agreement and issue a judgment of parentage
    20  if  the court determines the agreement is in substantial compliance with
    21  the requirements of this article.
    22    § 581-204. Judgment of parentage for intended parents who are spouses.
    23  Notwithstanding or without limitation on presumptions of parentage  that
    24  apply,  a  judgment  of  parentage  may  be  obtained under this part by
    25  intended parents who are each other's spouse.
    26    §  581-205.    Inspection  of  records.  Court  records  relating   to
    27  proceedings  under  this  article  shall  be  sealed. The parties to the
    28  proceeding and the child shall have the  right  to  inspect  the  entire
    29  court  record,  including,  but  not  limited to, the name of the person
    30  acting as surrogate and any known donors.
    31    § 581-206. Jurisdiction, and exclusive  continuing  jurisdiction.  (a)
    32  Proceedings pursuant to this article may be instituted in the supreme or
    33  family court.
    34    (b)  Subject to the jurisdictional standards of section seventy-six of
    35  the domestic relations law, the court conducting a proceeding under this
    36  article has exclusive, continuing jurisdiction of all  matters  relating
    37  to the determination of parentage until the child attains the age of one
    38  hundred eighty days.
 
    39                                   PART 3
    40                       CHILD OF ASSISTED REPRODUCTION
    41  Section 581-301. Scope of article.
    42          581-302. Status of donor.
    43          581-303. Parentage of child of assisted reproduction.
    44          581-304. Consent to assisted reproduction.
    45          581-305. Limitation on spouses' dispute of parentage of child of
    46                     assisted reproduction.
    47          581-306. Effect of embryo disposition agreement between intended
    48                     parents  which  transfers  legal  rights and disposi-
    49                     tioned control to one intended parent.
    50          581-307. Effect of death of intended parent.
    51    § 581-301. Scope of article.  This article does not apply to the birth
    52  of a child conceived by means of sexual intercourse.
    53    § 581-302. Status of donor.   A donor is  not  a  parent  of  a  child
    54  conceived by means of assisted reproduction.

        A. 1071--C                          7
 
     1    §  581-303. Parentage of child of assisted reproduction.  (a) An indi-
     2  vidual who provides gametes for, or who consents  to,  assisted  reprod-
     3  uction  with  the intent to be a parent of the child with the consent of
     4  the gestating parent as provided in section 581-304 of this part,  is  a
     5  parent of the resulting child for all legal purposes.
     6    (b)  The  court  shall  issue a judgment of parentage pursuant to this
     7  article upon application by any participant.
     8    § 581-304. Consent to assisted reproduction.  (a) Where  the  intended
     9  parent who gives birth to a child by means of assisted reproduction is a
    10  spouse,  the  consent  of  both  spouses to the assisted reproduction is
    11  presumed and neither spouse may challenge the parentage  of  the  child,
    12  except as provided in section 581-305 of this part.
    13    (b)  Where  the intended parent who gives birth to a child by means of
    14  assisted reproduction is not a  spouse,  the  consent  to  the  assisted
    15  reproduction  must  be  in  a record in such a manner as to indicate the
    16  mutual agreement of the intended parents to conceive and parent a  child
    17  together.
    18    (c)  The  absence  of  a  record  described in subdivision (b) of this
    19  section shall not preclude a finding that such consent  existed  if  the
    20  court  finds  by  clear  and convincing evidence that at the time of the
    21  assisted reproduction the intended parents agreed to conceive and parent
    22  the child together.
    23    § 581-305. Limitation on spouses' dispute of  parentage  of  child  of
    24  assisted  reproduction.  (a) Except as otherwise provided in subdivision
    25  (b) of this section, neither spouse may  challenge  the  presumption  of
    26  parentage of the child unless:
    27    (1)  within  two  years  after  learning  of  the birth of the child a
    28  proceeding is commenced to adjudicate parentage; and
    29    (2) the court finds by  clear  and  convincing  evidence  that  either
    30  spouse  did  not  consent for the non-gestating spouse to be a parent of
    31  the child.
    32    (b) A proceeding for a judgment of parentage may be maintained at  any
    33  time if the court finds by clear and convincing evidence that:
    34    (1)  the  spouse did not consent to assisted reproduction by the indi-
    35  vidual who gave birth; and
    36    (2) the spouse and the individual who gave birth  have  not  cohabited
    37  since the spouse knew or had reason to know of the pregnancy; and
    38    (3) the spouse never openly held out the child as his or her own.
    39    (c)  The  limitation  provided  in  this  section applies to a spousal
    40  relationship that has been declared invalid after assisted  reproduction
    41  or artificial insemination.
    42    §  581-306.  Effect  of  embryo disposition agreement between intended
    43  parents which transfers legal rights and dispositional  control  to  one
    44  intended  parent.  (a)  An embryo disposition agreement between intended
    45  parents with joint dispositional control of an embryo shall  be  binding
    46  under the following circumstances:
    47    (1) it is in writing;
    48    (2)  each  intended parent had the advice of independent legal counsel
    49  prior to its execution; and
    50    (3) where the intended parents are married, transfer of  legal  rights
    51  and dispositional control occurs only upon divorce.
    52    (b)  The  intended parent who transfers legal rights and dispositional
    53  control of the embryo is not a parent of any child  conceived  from  the
    54  embryo  unless  the  agreement  states  that  he or she consents to be a
    55  parent.

        A. 1071--C                          8

     1    (c) If the intended parent transferring legal rights and dispositional
     2  control consents to be a parent, he or  she  may  withdraw  his  or  her
     3  consent to be a parent upon written notice to the embryo storage facili-
     4  ty  and to the other intended parent prior to transfer of the embryo. If
     5  he  or  she  timely  withdraws consent to be a parent he or she is not a
     6  parent for any purpose including  support  obligations  but  the  embryo
     7  transfer may still proceed.
     8    (d)  An  embryo disposition agreement or advance directive that is not
     9  in compliance with subdivision (a) of this section may still be found to
    10  be enforceable by the court after balancing the respective interests  of
    11  the  parties except that the intended parent who divested him or herself
    12  of legal rights and dispositional control may not be declared  to  be  a
    13  parent  for  any  purpose without his or her consent. The parent awarded
    14  legal rights and dispositional control of the  embryos  shall,  in  this
    15  instance, be declared to be the only parent of the child.
    16    §  581-307.  Effect of death of intended parent.  If an individual who
    17  consented in a record to be  a  parent  by  assisted  reproduction  dies
    18  before  the transfer of eggs, sperm, or embryos, the deceased individual
    19  is not a parent of the resulting child unless  the  deceased  individual
    20  consented in a signed record that if assisted reproduction were to occur
    21  after  death,  the  deceased  individual would be a parent of the child,
    22  provided that the record complies with the estates,  powers  and  trusts
    23  law.
    24                                   PART 4
    25                             SURROGACY AGREEMENT
    26  Section 581-401. Surrogacy agreement authorized.
    27          581-402. Eligibility to enter surrogacy agreement.
    28          581-403. Requirements of surrogacy agreement.
    29          581-404. Surrogacy   agreement:  effect  of  subsequent  spousal
    30                     relationship.
    31          581-405. Termination of surrogacy agreement.
    32          581-406. Parentage under compliant surrogacy agreement.
    33          581-407. Insufficient surrogacy agreement.
    34          581-408. Absence of surrogacy agreement.
    35          581-409. Dispute as to surrogacy agreement.
    36    § 581-401. Surrogacy agreement authorized.  (a) If eligible under this
    37  article to enter into a surrogacy agreement, a person acting  as  surro-
    38  gate,  the  spouse of the person acting as surrogate, if applicable, and
    39  the intended parent or parents may  enter  into  a  surrogacy  agreement
    40  which  will  be  enforceable  provided the surrogacy agreement meets the
    41  requirements of this article.
    42    (b) A surrogacy agreement shall not apply to  the  birth  of  a  child
    43  conceived by means of sexual intercourse.
    44    (c)  A  surrogacy  agreement  may  provide for payment of compensation
    45  under part five of this article.
    46    § 581-402. Eligibility to enter surrogacy agreement.    (a)  A  person
    47  acting  as  surrogate  shall  be  eligible  to enter into an enforceable
    48  surrogacy agreement under this article if the person acting as surrogate
    49  has met the following requirements at the time the  surrogacy  agreement
    50  is executed:
    51    (1)  the  person  acting  as surrogate is at least twenty-one years of
    52  age; and
    53    (2) the person acting as surrogate is a United  States  citizen  or  a
    54  permanent lawful resident;
    55    (3)  the  person  acting as surrogate has not provided the egg used to
    56  conceive the resulting child; and

        A. 1071--C                          9

     1    (4) the person acting as surrogate has completed a medical  evaluation
     2  with  a  health care practitioner relating to the anticipated pregnancy;
     3  and
     4    (5)  the  person  acting  as  surrogate,  and the spouse of the person
     5  acting as surrogate, if applicable, have been represented throughout the
     6  contractual process and the duration of the contract and  its  execution
     7  by  independent  legal counsel of their own choosing which shall be paid
     8  for by the intended parent or parents except that  a  person  acting  as
     9  surrogate  who  is receiving no compensation may waive the right to have
    10  the intended parent or parents pay the fee for such legal counsel. Where
    11  the intended parent or parents are  paying  for  the  independent  legal
    12  counsel  of the person acting as surrogate, and the spouse of the person
    13  acting as surrogate, if applicable, a separate retainer agreement  shall
    14  be  prepared clearly stating that such legal counsel will only represent
    15  the person acting as surrogate and the spouse of the  person  acting  as
    16  surrogate,  if  applicable,  in  all matters pertaining to the surrogacy
    17  agreement, that such legal counsel will not offer legal  advice  to  any
    18  other  parties  to the surrogacy agreement, and that the attorney-client
    19  relationship lies with the person acting as surrogate and the spouse  of
    20  the person acting as surrogate, if applicable; and
    21    (6)  the  person  acting  as surrogate has, or the surrogacy agreement
    22  stipulates that prior to the  embryo  transfer,  the  person  acting  as
    23  surrogate  will  obtain  a  health  insurance  policy  that covers major
    24  medical treatments and hospitalization, and the health insurance  policy
    25  has a term that extends throughout the duration of the expected pregnan-
    26  cy  and  for  twenty-six  weeks after the birth of the child; the policy
    27  shall be paid for, whether directly or through  reimbursement  or  other
    28  means,  by the intended parent or parents on behalf of the person acting
    29  as surrogate pursuant to the surrogacy agreement, except that  a  person
    30  acting as surrogate who is receiving no compensation may waive the right
    31  to  have  the  intended  parent  or parents pay for the health insurance
    32  policy.  The intended parent or parents shall also pay for or  reimburse
    33  the  person acting as surrogate for all co-payments, deductibles and any
    34  other out-of-pocket medical costs associated with pregnancy, that accrue
    35  through twelve weeks after the birth of the child or termination of  the
    36  pregnancy,  except  that such responsibility shall be extended for up to
    37  six months after the birth of the child or termination of the  pregnancy
    38  in  the  event  a medical complication related to the pregnancy is diag-
    39  nosed within twelve weeks after the birth of the child or termination or
    40  the pregnancy. A person acting as surrogate who is receiving no  compen-
    41  sation  may  waive the right to have the intended parent or parents make
    42  such payments or reimbursements.
    43    (b) The intended parent or parents shall be eligible to enter into  an
    44  enforceable  surrogacy  agreement  under this article if he, she or they
    45  have met the following requirements at the time the surrogacy  agreement
    46  was executed:
    47    (1)  at  least  one  intended  parent  is a United States citizen or a
    48  permanent lawful resident;
    49    (2) the intended parent or parents has been represented throughout the
    50  contractual process and the duration of the contract and  its  execution
    51  by independent legal counsel of his, her or their own choosing; and
    52    (3) he or she is an adult person who is not in a spousal relationship,
    53  or  adult  spouses together, or any two adults who are intimate partners
    54  together, except an adult in a spousal relationship is eligible to enter
    55  into an enforceable surrogacy agreement without his or her spouse if:

        A. 1071--C                         10
 
     1    (i) they are living separate and apart pursuant to a decree  or  judg-
     2  ment  of  separation  or  pursuant  to a written agreement of separation
     3  subscribed by the parties thereto and acknowledged or proved in the form
     4  required to entitle a deed to be recorded; or
     5    (ii) they have been living separate and apart for at least three years
     6  prior to execution of the surrogacy agreement.
     7    (4)  where the spouse of an intended parent is not a required party to
     8  the agreement, the spouse is not an intended parent and shall  not  have
     9  rights or obligations to the child.
    10    § 581-403. Requirements  of surrogacy agreement. A surrogacy agreement
    11  shall be deemed to have satisfied the requirements of this  article  and
    12  be enforceable if it meets the following requirements:
    13    (a) it shall be in a signed record verified by:
    14    (1) each intended parent, and
    15    (2)  the  person  acting  as  surrogate,  and the spouse of the person
    16  acting as surrogate, if any, unless:
    17    (i) the person acting as surrogate and the spouse of the person acting
    18  as surrogate are living separate and apart pursuant to a decree or judg-
    19  ment of separation or pursuant to  a  written  agreement  of  separation
    20  subscribed by the parties thereto and acknowledged or proved in the form
    21  required to entitle a deed to be recorded; or
    22    (ii)  have  been  living  separate  and apart for at least three years
    23  prior to execution of the surrogacy agreement; and
    24    (b) it shall be executed prior to the embryo transfer; and
    25    (c) it shall be executed by a person acting as surrogate  meeting  the
    26  eligibility  requirements  of subdivision (a) of section 581-402 of this
    27  part and by the spouse of the person acting  as  surrogate,  unless  the
    28  signature  of  the  spouse  of  the  person  acting  as surrogate is not
    29  required as set forth in this section; and
    30    (d) it shall be executed by intended parent or  parents  who  met  the
    31  eligibility  requirements  of subdivision (b) of section 581-402 of this
    32  part; and
    33    (e) the person acting as surrogate and the spouse of the person acting
    34  as surrogate, if applicable, and the intended parent  or  parents  shall
    35  have  been  represented throughout the contractual process and the dura-
    36  tion of the contract and its execution by  separate,  independent  legal
    37  counsel of their own choosing; and
    38    (f)  if  the  surrogacy  agreement provides for the payment of compen-
    39  sation to the person acting as surrogate, those funds  shall  have  been
    40  placed  in  escrow  with an independent escrow agent prior to the person
    41  acting as surrogate commencing with any  medical  procedure  other  than
    42  medical  evaluations  necessary to determine the person acting as surro-
    43  gate's eligibility; and
    44    (g) the surrogacy agreement must include  information  disclosing  how
    45  the  intended  parent  or parents will cover the medical expenses of the
    46  person acting as surrogate and the child. If  health  care  coverage  is
    47  used  to  cover  the  medical  expenses,  the disclosure shall include a
    48  review of the health care policy provisions related to coverage for  the
    49  person acting as surrogate's pregnancy, including any possible liability
    50  of the person acting as surrogate's third-party liability liens or other
    51  insurance coverage, and any notice requirements that could affect cover-
    52  age or liability of the person acting as surrogate.
    53    (h)  the  surrogacy  agreement  must  comply with all of the following
    54  terms:
    55    (1) As to the person acting as surrogate and the spouse of the  person
    56  acting as surrogate, if applicable:

        A. 1071--C                         11
 
     1    (i)  the  person acting as surrogate agrees to undergo embryo transfer
     2  and attempt to carry and give birth to the child; and
     3    (ii)  the  person  acting  as  surrogate  and the spouse of the person
     4  acting as surrogate, if applicable, agree to surrender  custody  of  all
     5  resulting  children  to  the intended parent or parents immediately upon
     6  birth; and
     7    (iii) the surrogacy agreement shall include the name of  the  attorney
     8  representing  the  person  acting  as  surrogate and, if applicable, the
     9  spouse of the person acting as surrogate; and
    10    (iv) the surrogacy agreement must permit the person acting  as  surro-
    11  gate  to  make  all  health and welfare decisions regarding themself and
    12  their pregnancy including but not limited to, whether to  consent  to  a
    13  cesarean  section  or  multiple embryo transfer, and notwithstanding any
    14  other provisions in this chapter, provisions in  the  agreement  to  the
    15  contrary  are void and unenforceable. This article does not diminish the
    16  right of the person acting as surrogate to terminate a pregnancy; and
    17    (v) the surrogacy agreement must permit the person acting as a  surro-
    18  gate  to  utilize  the  services  of  a  health care practitioner of the
    19  person's choosing; and
    20    (vi) the surrogacy agreement must not limit the right  of  the  person
    21  acting  as surrogate to terminate or continue the pregnancy or reduce or
    22  retain the number of fetuses or embryos the person is carrying; and
    23    (vii) the surrogacy agreement must provide  that,  upon  request,  the
    24  intended  parent  or  parents  have  or  will procure and pay for a life
    25  insurance policy for the person acting as surrogate; the  person  acting
    26  as surrogate may designate the beneficiary of the person's choosing; and
    27    (viii)  the  surrogacy  agreement  shall  provide for the right of the
    28  person acting as  surrogate,  upon  request,  to  obtain  counseling  to
    29  address issues resulting from the person's participation in the surroga-
    30  cy  agreement. The cost of that counseling shall be paid by the intended
    31  parent or parents.
    32    (2) As to the intended parent or parents:
    33    (i) the intended parent or parents agree  to  accept  custody  of  all
    34  resulting  children immediately upon birth regardless of number, gender,
    35  or mental or physical condition; and
    36    (ii) the intended parent or parents agree to assume responsibility for
    37  the support of all resulting children immediately upon birth; and
    38    (iii) the surrogacy agreement shall include the name of  the  attorney
    39  representing the intended parent or parents; and
    40    (iv)  the  surrogacy agreement shall provide that the rights and obli-
    41  gations of the intended parent or parents under the surrogacy  agreement
    42  are not assignable; and
    43    (v)  the  intended parent or parents agree to execute a will, prior to
    44  the embryo transfer, designating a guardian for all  resulting  children
    45  who  is  authorized  to  perform the intended parent's or parents' obli-
    46  gations pursuant to the surrogacy agreement.
    47    § 581-404. Surrogacy agreement: effect of subsequent spousal relation-
    48  ship. (a) After the execution of a surrogacy agreement under this  arti-
    49  cle,  the subsequent spousal relationship of the person acting as surro-
    50  gate does not affect the validity of a surrogacy agreement, the  consent
    51  of  the  spouse of the person acting as surrogate to the agreement shall
    52  not be required, and the spouse of the person acting as surrogate  shall
    53  not be the presumed parent of any resulting children.
    54    (b)  The subsequent separation or divorce of the intended parents does
    55  not affect the rights,  duties  and  responsibilities  of  the  intended
    56  parents as outlined in the surrogacy agreement.

        A. 1071--C                         12
 
     1    § 581-405. Termination  of surrogacy agreement. After the execution of
     2  a surrogacy agreement but before the person acting as surrogate  becomes
     3  pregnant  by means of assisted reproduction, the person acting as surro-
     4  gate, the spouse of the person acting as surrogate,  if  applicable,  or
     5  any  intended  parent  may  terminate  the surrogacy agreement by giving
     6  notice of termination in a record to  all  other  parties.  Upon  proper
     7  termination of the surrogacy agreement the parties are released from all
     8  obligations  recited in the surrogacy agreement except that the intended
     9  parent or parents remains responsible for all expenses  that  are  reim-
    10  bursable  under  the  agreement  which  have been incurred by the person
    11  acting as surrogate through the date of termination. Unless  the  agree-
    12  ment  provides  otherwise, the person acting as surrogate is entitled to
    13  keep all payments received and obtain all payments to which  the  person
    14  is entitled up until the date of termination. Neither a person acting as
    15  surrogate  nor  the spouse of the person acting as surrogate, if any, is
    16  liable to the intended parent or parents  for  terminating  a  surrogacy
    17  agreement as provided in this section.
    18    §  581-406.  Parentage  under  compliant surrogacy agreement. Upon the
    19  birth of a child conceived by assisted reproduction  under  a  surrogacy
    20  agreement  that  complies  with  this  part, each intended parent is, by
    21  operation of law, a parent of the child and neither the person acting as
    22  a surrogate nor the person's spouse, if any, is a parent of the child.
    23    § 581-407. Insufficient surrogacy agreement. If a surrogacy  agreement
    24  does  not  meet the material requirements of this article, the agreement
    25  is not enforceable and the court shall determine parentage based on  the
    26  intent  of  the  parties,  taking into account the best interests of the
    27  child.  An intended parent's absence of genetic connection to the  child
    28  is  not  a  sufficient basis to deny that individual a judgment of legal
    29  parentage.
    30    § 581-408. Absence of surrogacy agreement. Where there is no surrogacy
    31  agreement, the parentage of the child will be determined based on  other
    32  laws of this state.
    33    §  581-409.  Dispute as to surrogacy agreement.  (a) Any dispute which
    34  is related to a surrogacy agreement other than disputes as to  parentage
    35  shall  be  resolved  by  the  supreme  court,  which shall determine the
    36  respective rights and obligations of the parties.
    37    (b) Except as expressly  provided  in  the  surrogacy  agreement,  the
    38  intended  parent  or parents and the person acting as surrogate shall be
    39  entitled to all remedies available at  law  or  equity  in  any  dispute
    40  related to the surrogacy agreement.
    41    (c)  There  shall  be  no  specific performance remedy available for a
    42  breach by the person acting as surrogate of a surrogacy  agreement  term
    43  that  requires  the  person  acting as surrogate to be impregnated or to
    44  terminate or continue the pregnancy or to reduce or retain the number of
    45  fetuses or embryos the person acting as surrogate is carrying.
 
    46                                   PART 5
    47             PAYMENT TO DONORS AND PERSONS ACTING AS SURROGATES
    48  Section 581-501. Reimbursement.
    49          581-502. Compensation.
    50    § 581-501. Reimbursement.  (a) A donor who has entered  into  a  valid
    51  agreement  to  be  a  donor  may  receive reimbursement from an intended
    52  parent or parents for economic losses incurred in  connection  with  the
    53  donation  which result from the retrieval or storage of gametes or embr-
    54  yos.

        A. 1071--C                         13
 
     1    (b) Premiums paid  for  insurance  against  economic  losses  directly
     2  resulting  from  the  retrieval  or  storage  of  gametes or embryos for
     3  donation may be reimbursed.
     4    §  581-502. Compensation.   (a) Compensation may be paid to a donor or
     5  person acting as surrogate based on medical risks, physical  discomfort,
     6  inconvenience   and   the   responsibilities  they  are  undertaking  in
     7  connection with their participation in the assisted reproduction.  Under
     8  no circumstances may compensation be paid to purchase gametes or embryos
     9  or for the relinquishment of a parental interest in a child.
    10    (b) The compensation, if any, paid to a  donor  or  person  acting  as
    11  surrogate  must  be  reasonable and negotiated in good faith between the
    12  parties, and said payments to a person acting  as  surrogate  shall  not
    13  exceed  the  duration  of the pregnancy and recuperative period of up to
    14  eight weeks after the birth of any resulting children.
    15    (c) Compensation may not be conditioned upon the purported quality  or
    16  genome-related traits of the gametes or embryos.
    17    (d)  Compensation may not be conditioned on actual genotypic or pheno-
    18  typic characteristics of the donor or of any resulting children.
 
    19                                   PART 6
    20                         SURROGATES' BILL OF RIGHTS
    21  Section 581-601. Applicability.
    22          581-602. Health and welfare decisions.
    23          581-603. Independent legal counsel.
    24          581-604. Health insurance and medical costs.
    25          581-605. Counseling.
    26          581-606. Life insurance.
    27          581-607. Termination of surrogacy agreement.
    28    § 581-601. Applicability. The rights enumerated  in  this  part  shall
    29  apply  to  any person acting as surrogate in this state, notwithstanding
    30  any surrogacy agreement, judgment of  parentage,  memorandum  of  under-
    31  standing,  verbal  agreement  or  contract  to the contrary.   Except as
    32  otherwise provided by law, any written or verbal agreement purporting to
    33  waive or limit any of the rights in this part is void as against  public
    34  policy.    The rights enumerated in this part are not exclusive, and are
    35  in addition to any other rights provided by law, regulation, or a surro-
    36  gacy agreement that meets the requirements of this article.
    37    § 581-602. Health and welfare decisions. A person acting as  surrogate
    38  has  the  right to make all health and welfare decisions regarding them-
    39  self and their pregnancy,  including  but  not  limited  to  whether  to
    40  consent  to  a  cesarean section or multiple embryo transfer, to utilize
    41  the services of a health care practitioner of their choosing, whether to
    42  terminate or continue the pregnancy, and whether to reduce or retain the
    43  number of fetuses or embryos they are carrying.
    44    § 581-603. Independent legal counsel. A person acting as surrogate has
    45  the right to be represented throughout the contractual process  and  the
    46  duration  of  the  surrogacy  agreement and its execution by independent
    47  legal counsel of their own choosing, to be  paid  for  by  the  intended
    48  parent or parents.
    49    §  581-604.  Health  insurance  and  medical costs. A person acting as
    50  surrogate has the right to a health insurance policy that  covers  major
    51  medical  treatments and hospitalization for a term that extends through-
    52  out the duration of the expected pregnancy and for  twelve  weeks  after
    53  the  birth  of  the  child,  to  be  paid  for by the intended parent or
    54  parents. The intended parent or parents shall also pay for or  reimburse
    55  the  person acting as surrogate for all co-payments, deductibles and any

        A. 1071--C                         14
 
     1  other out-of-pocket medical costs associated with pregnancy that  accrue
     2  through  twelve weeks after the birth of the child or termination of the
     3  pregnancy, except that such responsibility shall be extended for  up  to
     4  six  months after the birth of the child or termination of the pregnancy
     5  in the event a medical complication related to the  pregnancy  is  diag-
     6  nosed within twelve weeks after the birth of the child or termination of
     7  the pregnancy.
     8    §  581-605.  Counseling. A person acting as surrogate has the right to
     9  obtain counseling to address issues resulting from  their  participation
    10  in  a  surrogacy  agreement,  to  be  paid for by the intended parent or
    11  parents.
    12    § 581-606. Life insurance. A person acting as surrogate has the  right
    13  to  be  provided  with  a  life insurance policy for the duration of the
    14  surrogacy agreement, with a beneficiary or beneficiaries of their choos-
    15  ing, to be paid for by the intended parent or parents.
    16    § 581-607. Termination of surrogacy  agreement.  A  person  acting  as
    17  surrogate  has  the  right  to  terminate a surrogacy agreement prior to
    18  becoming pregnant by means of assisted reproduction pursuant to  section
    19  581-405 of this article.
 
    20                                   PART 7
    21                          MISCELLANEOUS PROVISIONS
    22  Section 581-701. Remedial.
    23          581-702. Severability.
    24          581-703. Parent  under section seventy of the domestic relations
    25                     law.
    26          581-704. Interpretation.
    27    § 581-701. Remedial.   This legislation is hereby  declared  to  be  a
    28  remedial  statute and is to be construed liberally to secure the benefi-
    29  cial interests and purposes thereof for the best interests of the child.
    30    § 581-702. Severability.  The invalidation of any part of this  legis-
    31  lation  by  a  court  of  competent jurisdiction shall not result in the
    32  invalidation of any other part.
    33    § 581-703. Parent under section seventy of the domestic relations law.
    34  The term "parent" in section seventy of the domestic relations law shall
    35  include a person established to be a parent under this  article  or  any
    36  other relevant law.
    37    § 581-704. Interpretation.  Unless  the  context  indicates otherwise,
    38  words importing the singular  include  and  apply  to  several  persons,
    39  parties, or things; words importing the plural include the singular.
    40    § 2. Section 73 of the domestic relations law is REPEALED.
    41    §  3.  Section  121 of the domestic relations law, as added by chapter
    42  308 of the laws of 1992, is amended to read as follows:
    43    § 121. Definitions. When used in this article, unless the  context  or
    44  subject matter manifestly requires a different interpretation:
    45    1.[ "Birth  mother"]  "Genetic  surrogate" shall mean a [woman] person
    46  who gives birth to a child who is the person's genetic child pursuant to
    47  a genetic surrogate parenting [contract] agreement.
    48    2. ["Genetic father" shall mean a man who provides sperm for the birth
    49  of a child born pursuant to a surrogate parenting contract.
    50    3. "Genetic mother" shall mean a woman who provides an  ovum  for  the
    51  birth of a child born pursuant to a surrogate parenting contract.
    52    4. "Surrogate parenting contract"] "Genetic surrogate parenting agree-
    53  ment" shall mean any agreement, oral or written, in which:
    54    (a)  a  [woman] genetic surrogate agrees either to be inseminated with
    55  the sperm of a [man] person who is not [her husband] their spouse or  to

        A. 1071--C                         15
 
     1  be  impregnated  with  an embryo that is the product of [an] the genetic
     2  surrogate's ovum fertilized with the sperm of a [man] person who is  not
     3  [her husband] their spouse; and
     4    (b)  the [woman] genetic surrogate agrees to, or intends to, surrender
     5  or consent to the adoption of the child born as a result of such insemi-
     6  nation or impregnation.
     7    § 4. Section 122 of the domestic relations law, as  added  by  chapter
     8  308 of the laws of 1992, is amended to read as follows:
     9    §   122.   Public  policy.  [Surrogate]  Genetic  surrogate  parenting
    10  [contracts] agreements are hereby declared contrary to the public policy
    11  of this state, and are void and unenforceable.
    12    § 5. Section 123 of the domestic relations law, as  added  by  chapter
    13  308 of the laws of 1992, is amended to read as follows:
    14    §  123.  Prohibitions  and  penalties.  [1.] No person or other entity
    15  shall knowingly request, accept, receive, pay or give any  fee,  compen-
    16  sation or other remuneration, directly or indirectly, in connection with
    17  any genetic surrogate parenting [contract] agreement, or induce, arrange
    18  or   otherwise   assist  in  arranging  a  genetic  surrogate  parenting
    19  [contract] agreement for a  fee,  compensation  or  other  remuneration,
    20  except for:
    21    (a)  payments  in connection with the adoption of a child permitted by
    22  subdivision six of section three  hundred  seventy-four  of  the  social
    23  services  law and disclosed pursuant to subdivision eight of section one
    24  hundred fifteen of this chapter; or
    25    (b) payments for reasonable  and  actual  medical  fees  and  hospital
    26  expenses  for artificial insemination or in vitro fertilization services
    27  incurred by the [mother] genetic surrogate in connection with the  birth
    28  of the child.
    29    [2.  (a) A birth mother or her husband, a genetic father and his wife,
    30  and, if the genetic mother is not the birth mother, the  genetic  mother
    31  and  her  husband  who  violate this section shall be subject to a civil
    32  penalty not to exceed five hundred dollars.
    33    (b) Any other person or entity  who  or  which  induces,  arranges  or
    34  otherwise assists in the formation of a surrogate parenting contract for
    35  a  fee,  compensation  or  other remuneration or otherwise violates this
    36  section shall be subject to a civil penalty not to exceed  ten  thousand
    37  dollars  and  forfeiture  to  the state of any such fee, compensation or
    38  remuneration in accordance with the provisions  of  subdivision  (a)  of
    39  section  seven  thousand  two  hundred one of the civil practice law and
    40  rules, for the first such offense.  Any person or entity  who  or  which
    41  induces,  arranges  or otherwise assists in the formation of a surrogate
    42  parenting contract for a fee,  compensation  or  other  remuneration  or
    43  otherwise  violates  this  section,  after having been once subject to a
    44  civil penalty for violating this section, shall be guilty of a felony.]
    45    § 6. Section 124 of the domestic relations law, as  added  by  chapter
    46  308 of the laws of 1992, is amended to read as follows:
    47    §  124.  Proceedings regarding parental rights, status or obligations.
    48  In any action or proceeding involving a dispute between the [birth moth-
    49  er] genetic surrogate and [(i) the  genetic  father,  (ii)  the  genetic
    50  mother,  (iii)  both  the genetic father and genetic mother, or (iv) the
    51  parent or parents of the genetic father or  genetic  mother]  any  party
    52  with  a claim to legal parentage pursuant to a genetic surrogate parent-
    53  ing agreement, regarding parental rights,  status  or  obligations  with
    54  respect  to  a  child  born  pursuant  to  a genetic surrogate parenting
    55  [contract] agreement:

        A. 1071--C                         16
 
     1    1. the court shall not consider the [birth  mother's]  genetic  surro-
     2  gate's  participation in a genetic surrogate parenting [contract] agree-
     3  ment as adverse to [her] their parental rights, status, or  obligations;
     4  and
     5    2.  the  court,  having regard to the circumstances of the case and of
     6  the respective parties including the parties' relative  ability  to  pay
     7  such  fees  and  expenses,  in  its  discretion  and in the interests of
     8  justice, may award to either party reasonable and  actual  counsel  fees
     9  and  legal  expenses incurred in connection with such action or proceed-
    10  ing. Such award may be made in  the  order  or  judgment  by  which  the
    11  particular  action  or  proceeding   is finally determined, or by one or
    12  more orders from time to time before the final order or judgment, or  by
    13  both  such  order  or  orders and the final order or judgment; provided,
    14  however, that in any dispute involving a [birth mother]  genetic  surro-
    15  gate  who  has  executed  a  valid surrender or consent to the adoption,
    16  nothing in this section shall empower a court to make any award that  it
    17  would not otherwise be empowered to direct.
    18    §  7.  Section 4135-b of the public health law, as added by chapter 59
    19  of the laws of 1993, subdivisions 1 and 2 as amended by chapter  402  of
    20  the  laws  of  2013,  and subdivision 3 as amended by chapter 170 of the
    21  laws of 1994, is amended to read as follows:
    22    § 4135-b. Voluntary acknowledgments of  [paternity]  parentage;  child
    23  born  out  of  wedlock.  1.  (a)  Immediately preceding or following the
    24  in-hospital birth of a child to an unmarried  [woman]  person  or  to  a
    25  person   who   gave   birth   to  a  child  conceived  through  assisted
    26  reproduction, the person in charge of such hospital or his or her desig-
    27  nated representative shall provide to the [child's mother and] unmarried
    28  person who gave birth to the child and  the  putative  father,  if  such
    29  father  is readily identifiable and available, or to the person who gave
    30  birth and the  other  intended  parent  of  a  child  conceived  through
    31  assisted  reproduction if such person is readily identifiable and avail-
    32  able, the documents and written instructions necessary for  such  mother
    33  and putative [father] persons to complete an acknowledgment of [paterni-
    34  ty]  parentage  witnessed  by  two persons not related to the signatory.
    35  Such acknowledgment, if signed by both parties, at  any  time  following
    36  the birth of a child, shall be filed with the registrar at the same time
    37  at which the certificate of live birth is filed, if possible, or anytime
    38  thereafter.  Nothing  herein  shall  be  deemed to require the person in
    39  charge of such hospital or his or her designee to seek out or  otherwise
    40  locate a putative father or intended parent of a child conceived through
    41  assisted reproduction who is not readily identifiable or available.
    42    (b)  The  following persons may sign an acknowledgment of parentage to
    43  establish the parentage of the child:
    44    (i) An unmarried person who gave birth to the child and another person
    45  who is a genetic parent.
    46    (ii) A married or unmarried person who gave birth  to  the  child  and
    47  another  person  who  is an intended parent under section 581-303 of the
    48  family court act of a child conceived through assisted reproduction.
    49    (c) An acknowledgment of parentage shall be in a record signed by  the
    50  person  who  gave  birth  to  the child and by either the genetic parent
    51  other than the person who gave birth to the child or a person who  is  a
    52  parent  under  section  581-303  of  the  family  court act of the child
    53  conceived through assisted reproduction.
    54    (d) An acknowledgment of parentage is void if, at the time of signing,
    55  any of the following are true:

        A. 1071--C                         17
 
     1    (i) A person other than the person who gave birth to the  child  or  a
     2  person  seeking  to  establish  parentage  through  an acknowledgment of
     3  parentage is a presumed parent of the child under section twenty-four of
     4  the domestic relations law;
     5    (ii) A court has entered a judgment of parentage of the child;
     6    (iii)  Another  person  has signed a valid acknowledgment of parentage
     7  with regard to the child;
     8    (iv) The child has a parent under section 581-303 of the family  court
     9  act other than the signatories;
    10    (v)  The person seeking to establish parentage is a gamete donor under
    11  section 581-302 of the family court act;
    12    (vi) The person seeking to establish parentage asserts that he or  she
    13  is a parent under section twenty-four of the domestic relations law;
    14    (vii) The person seeking to establish parentage asserts that he or she
    15  is  a  parent of a child conceived through assisted reproduction and the
    16  person is in fact, not a parent under  section  581-303  of  the  family
    17  court act.
    18    (e)  The  acknowledgment  shall  be executed on a form provided by the
    19  commissioner developed in consultation with the appropriate commissioner
    20  of the department of family assistance, which shall include  the  social
    21  security  number  of the [mother] person who gave birth to the child and
    22  of the [putative  father]  acknowledged  parent  and  provide  in  plain
    23  language  (i)  a  statement by the [mother] person who gave birth to the
    24  child consenting to the acknowledgment of [paternity]  parentage  and  a
    25  statement  that  the  [putative  father] acknowledged parent is the only
    26  possible [father] other genetic parent or that the  acknowledged  parent
    27  is  an  intended  parent  and  the  child was conceived through assisted
    28  reproduction, (ii) a statement by the putative father, if any,  that  he
    29  is  the  biological  father of the child, and (iii) a statement that the
    30  signing of the acknowledgment of [paternity] parentage by  both  parties
    31  shall  have  the  same force and effect as an order of filiation entered
    32  after a court hearing by a court of competent jurisdiction, including an
    33  obligation to provide support for the child except that, only  if  filed
    34  with  the  registrar  of the district in which the birth certificate has
    35  been filed, will the acknowledgment have  such  force  and  effect  with
    36  respect to inheritance rights.
    37    [(b)]  (f)  Prior to the execution of an acknowledgment of [paternity]
    38  parentage, the [mother] person who gave  birth  to  the  child  and  the
    39  [putative father] other signatory shall be provided orally, which may be
    40  through  the  use  of audio or video equipment, and in writing with such
    41  information as is required pursuant to  this  section  with  respect  to
    42  their  rights and the consequences of signing a voluntary acknowledgment
    43  of [paternity] parentage including, but not limited to:
    44    (i) that the signing of the acknowledgment  of  [paternity]  parentage
    45  shall  establish  the  [paternity] parentage of the child and shall have
    46  the same force and effect as an order of [paternity] parentage or filia-
    47  tion issued by a court of competent jurisdiction establishing  the  duty
    48  of both parties to provide support for the child;
    49    (ii) that if such an acknowledgment is not made, the [putative father]
    50  signatory  other than the person who gave birth to the child can be held
    51  liable for support only if the family court, after a hearing,  makes  an
    52  order declaring that the [putative father] person is the [father] parent
    53  of  the child whereupon the court may make an order of support which may
    54  be retroactive to the birth of the child;
    55    (iii) that if made a respondent in a proceeding to establish [paterni-
    56  ty] parentage the [putative father] signatory other than the person  who

        A. 1071--C                         18
 
     1  gave  birth  to  the  child  has a right to free legal representation if
     2  indigent;
     3    (iv)  that [the putative father] an alleged genetic parent has a right
     4  to a genetic marker test or to a DNA test when available;
     5    (v) that  by  executing  the  acknowledgment,  the  [putative  father]
     6  alleged  genetic  parent waives [his] their right to a hearing, to which
     7  [he] they would otherwise be  entitled,  on  the  issue  of  [paternity]
     8  parentage;
     9    (vi)  that a copy of the acknowledgment of [paternity] parentage shall
    10  be filed with the putative father registry  pursuant  to  section  three
    11  hundred  seventy-two-c  of the social services law, and that such filing
    12  may establish the child's right to inheritance from the putative  father
    13  pursuant  to  clause (B) of subparagraph two of paragraph (a) of section
    14  4-1.2 of the estates, powers and trusts law;
    15    (vii) that, if such acknowledgment is filed with the registrar of  the
    16  district in which the birth certificate has been filed, such acknowledg-
    17  ment  will  establish inheritance rights from the putative father or the
    18  other intended parent of a child conceived through assisted reproduction
    19  pursuant to clause (A) of subparagraph two of paragraph (a)  of  section
    20  4-1.2 of the estates, powers and trusts law;
    21    (viii)  that  no  further  judicial  or administrative proceedings are
    22  required to ratify an unchallenged acknowledgment of [paternity] parent-
    23  age provided, however, that:
    24    (A) A signatory to an acknowledgment of [paternity] parentage, who had
    25  attained the age of eighteen at the time of execution of the acknowledg-
    26  ment, shall have the right to  rescind  the  acknowledgment  within  the
    27  earlier of sixty days from the date of signing the acknowledgment or the
    28  date  of  an administrative or a judicial proceeding (including, but not
    29  limited to, a proceeding to establish a support order) relating  to  the
    30  child  in  which the signatory is a party, provided that the "date of an
    31  administrative or a judicial proceeding" shall be the date by which  the
    32  respondent is required to answer the petition;
    33    (B) A signatory to an acknowledgment of [paternity] parentage, who had
    34  not  attained  the  age  of  eighteen  at  the  time of execution of the
    35  acknowledgment, shall have  the  right  to  rescind  the  acknowledgment
    36  anytime  up  to  sixty  days  after the signatory's attaining the age of
    37  eighteen years or sixty days after the date on which the  respondent  is
    38  required to answer a petition (including, but not limited to, a petition
    39  to establish a support order) relating to the child, whichever is earli-
    40  er; provided, however, that the signatory must have been advised at such
    41  proceeding of his or her right to file a petition to vacate the acknowl-
    42  edgment within sixty days of the date of such proceeding;
    43    (ix) that after the expiration of the time limits set forth in clauses
    44  (A)  and (B) of subparagraph (viii) of this paragraph, any of the signa-
    45  tories may challenge the  acknowledgment  of  [paternity]  parentage  in
    46  court  only  on the basis of fraud, duress, or material mistake of fact,
    47  with the burden of proof on the party challenging the voluntary acknowl-
    48  edgment;
    49    (x) that the [putative father and mother] person who gave birth to the
    50  child and the other signatory may wish to consult with attorneys  before
    51  executing the acknowledgment; and that they have the right to seek legal
    52  representation  and  supportive  services including counseling regarding
    53  such acknowledgment;
    54    (xi) that the acknowledgment of [paternity] parentage may be the basis
    55  for the [putative father] signatory other than the person who gave birth
    56  to the child establishing custody and visitation rights to the child and

        A. 1071--C                         19

     1  for requiring the [putative father's] consent  of  the  signatory  other
     2  than  the  person  who  gave  birth  to  the  child prior to an adoption
     3  proceeding;
     4    (xii)  that the [mother's] refusal of the person who gave birth to the
     5  child to sign the acknowledgment shall not be deemed a failure to  coop-
     6  erate in establishing [paternity for] parentage of the child; and
     7    (xiii)  that the child may bear the last name of either parent, or any
     8  combination thereof, which name shall not affect the legal status of the
     9  child.
    10  In addition, the governing body  of  such  hospital  shall  insure  that
    11  appropriate  staff  shall  provide  to  the [child's mother and putative
    12  father] person who gave birth to the  child  and  the  other  signatory,
    13  prior  to  the  [mother's] discharge from the hospital of the person who
    14  gave birth to the child, the opportunity to speak with hospital staff to
    15  obtain clarifying information  and  answers  to  their  questions  about
    16  [paternity]  parentage  establishment,  and shall also provide the tele-
    17  phone number of the local support collection unit.
    18    [(c)] (g) Within ten days after receiving the  certificate  of  birth,
    19  the registrar shall furnish without charge to each parent or guardian of
    20  the child or to the [mother] person who gave birth at the address desig-
    21  nated  by  her  for that purpose, a certified copy of the certificate of
    22  birth and, if applicable, a certified copy of the written acknowledgment
    23  of [paternity] parentage.  If the [mother] person who gave birth  is  in
    24  receipt of child support enforcement services pursuant to title six-A of
    25  article  three  of  the  social  services  law, the registrar also shall
    26  furnish without charge a certified copy of the certificate of birth and,
    27  if applicable, a certified copy of the written acknowledgment of [pater-
    28  nity] parentage to the social services district  of  the  county  within
    29  which the [mother] person who gave birth resides.
    30    2.  (a) When a child's [paternity] parentage is acknowledged voluntar-
    31  ily pursuant to section one hundred eleven-k of the social services law,
    32  the social services official shall file the executed acknowledgment with
    33  the registrar of the district in which the birth occurred and  in  which
    34  the birth certificate has been filed.
    35    (b)  Where  a  child's [paternity] parentage has not been acknowledged
    36  voluntarily pursuant to paragraph (a) of subdivision one of this section
    37  or paragraph (a) of this subdivision, the [child's mother and the  puta-
    38  tive  father] person who gave birth to the child and the other signatory
    39  may voluntarily acknowledge a child's [paternity] parentage pursuant  to
    40  this paragraph by signing the acknowledgment of [paternity] parentage.
    41    (c) A signatory to an acknowledgment of [paternity] parentage, who has
    42  attained the age of eighteen at the time of execution of the acknowledg-
    43  ment  shall  have  the  right  to  rescind the acknowledgment within the
    44  earlier of sixty days from the date of signing the acknowledgment or the
    45  date of an administrative or a judicial proceeding (including,  but  not
    46  limited  to,  a proceeding to establish a support order) relating to the
    47  child in which either signatory is a party; provided that  for  purposes
    48  of  this  section, the "date of an administrative or a judicial proceed-
    49  ing" shall be the date by which the respondent is required to answer the
    50  petition.
    51    (d) A signatory to an acknowledgment of [paternity] parentage, who has
    52  not attained the age of  eighteen  at  the  time  of  execution  of  the
    53  acknowledgment,  shall  have  the  right  to  rescind the acknowledgment
    54  anytime up to sixty days after the  signatory's  attaining  the  age  of
    55  eighteen  years  or sixty days after the date on which the respondent is
    56  required to answer a petition (including, but not limited to, a petition

        A. 1071--C                         20
 
     1  to establish a support order) relating to the child in which the  signa-
     2  tory  is  a  party,  whichever  is  earlier; provided, however, that the
     3  signatory must have been advised at such proceeding of his or her  right
     4  to file a petition to vacate the acknowledgment within sixty days of the
     5  date of such proceeding.
     6    (e)  After  the  expiration of the time limits set forth in paragraphs
     7  (c) and (d) of this subdivision, any of the  signatories  may  challenge
     8  the  acknowledgment  of [paternity] parentage in court only on the basis
     9  of fraud, duress, or material mistake of fact, with the burden of  proof
    10  on  the  party challenging the voluntary acknowledgment. The acknowledg-
    11  ment shall have full force and effect once so signed. The original or  a
    12  copy  of  the  acknowledgment  shall  be filed with the registrar of the
    13  district in which the birth certificate has been filed.
    14    3. (a) An executed acknowledgment of [paternity] parentage executed by
    15  [the mother and father of a child born out of wedlock]  any  two  people
    16  eligible  to sign such an acknowledgment under paragraph (b) of subdivi-
    17  sion one of this section, married  or  unmarried,  shall  establish  the
    18  [paternity]  parentage  of  a  child  and  shall have the same force and
    19  effect as an order of [paternity] parentage or  filiation  issued  by  a
    20  court  of  competent jurisdiction. Such acknowledgement shall thereafter
    21  be filed with the registrar pursuant to subdivision one or two  of  this
    22  section.
    23    (b)  A  registrar with whom an acknowledgment of [paternity] parentage
    24  has been filed pursuant to subdivision one or two of this section  shall
    25  file  the  acknowledgment  with  the  state department of health and the
    26  putative father registry.
    27    4. The court shall give full faith and credit to an acknowledgment  of
    28  parentage  effective  in  another  state  if the acknowledgment was in a
    29  signed record and otherwise complies with the law of the other state.
    30    5. A new certificate of birth shall be issued if  the  certificate  of
    31  birth of [a] the child [born out of wedlock] as defined in paragraph (b)
    32  of  subdivision  one of section four thousand one hundred thirty-five of
    33  this article has been filed without entry of the name  of  the  [father]
    34  signatory  other  than  the  person who gave birth, and the commissioner
    35  thereafter receives a notarized acknowledgment of [paternity]  parentage
    36  accompanied  by  the written consent of the [putative father and mother]
    37  person who gave birth to the child and other signatory to the  entry  of
    38  the  name of such [father] person, which consent may also be to a change
    39  in the surname of the child.
    40    6. Any reference to an acknowledgment of paternity in any law of  this
    41  state shall be interpreted to mean an acknowledgment of parentage signed
    42  pursuant  to this section or signed in another state consistent with the
    43  law of that state.
    44    § 8. The article heading of article 8 of the domestic  relations  law,
    45  as  added  by  chapter  308  of  the laws of 1992, is amended to read as
    46  follows:
    47                    GENETIC SURROGATE PARENTING CONTRACTS
    48    § 9. The general business law is amended by adding a new article 44 to
    49  read as follows:
 
    50                                 ARTICLE 44
    51                      REGULATION OF SURROGACY PROGRAMS
    52  Section 1400. Definitions.
    53          1401. Programs regulated under this article.
    54          1402. Conflicts of interest; prohibition on payments;  funds  in
    55                  escrow; licensure; notice of surrogates' bill of rights.

        A. 1071--C                         21
 
     1          1403. Regulations.
     2    § 1400. Definitions. As used in this section:
     3    (a)  The  definitions in section 581-102 of the family court act shall
     4  apply.
     5    (b) "Payment" means any type of monetary compensation or  other  valu-
     6  able  consideration  including  but  not  limited  to  a rebate, refund,
     7  commission, unearned discount, or profit by means  of  credit  or  other
     8  valuable consideration.
     9    (c)  "Surrogacy  program"  does  not  include any party to a surrogacy
    10  agreement or any person licensed to  practice  law  and  representing  a
    11  party to the surrogacy agreement, but does include and is not limited to
    12  any  agency,  agent,  business,  or individual engaged in, arranging, or
    13  facilitating transactions contemplated by a surrogacy agreement, regard-
    14  less of whether such agreement ultimately comports with the requirements
    15  of article five-C of the family court act.
    16    § 1401. Programs regulated under this article. The provisions of  this
    17  article  apply  to  surrogacy  programs arranging or facilitating trans-
    18  actions contemplated by a surrogacy agreement under part four of article
    19  five-C of the family court act if:
    20    (a) The surrogacy program does business in New York state;
    21    (b) A person acting as surrogate who is party to a surrogacy agreement
    22  resides in New York state during the term of the surrogacy agreement; or
    23    (c) Any medical procedures under the surrogacy agreement are performed
    24  in New York state.
    25    § 1402. Conflicts of  interest;  prohibition  on  payments;  funds  in
    26  escrow;  licensure;  notice  of surrogates' bill of rights.  A surrogacy
    27  program to which this article applies:
    28    (a) Must keep all funds paid by or on behalf of the intended parent or
    29  parents in a separate, licensed escrow fund;
    30    (b) May not be owned or managed, in any part, directly or  indirectly,
    31  by any attorney representing a party to the surrogacy agreement;
    32    (c) May not pay or receive payment, directly or indirectly, to or from
    33  any  person  licensed  to  practice  law and representing a party to the
    34  surrogacy agreement in connection with the referral  of  any  person  or
    35  party for the purpose of a surrogacy agreement;
    36    (d) May not pay or receive payment, directly or indirectly, to or from
    37  any  health  care  provider  providing  any  health  services, including
    38  assisted reproduction, to a party to the surrogacy agreement; and
    39    (e) May not be owned or managed, in any part, directly or  indirectly,
    40  by  any  health  care  provider providing any health services, including
    41  assisted reproduction, to a party to the surrogacy agreement.
    42    (f) Must be licensed to operate in New York state  pursuant  to  regu-
    43  lations promulgated by the department of financial services in consulta-
    44  tion with the department of health.
    45    (g)  Must  ensure that all potential parties to a surrogacy agreement,
    46  at the time of consultation with such surrogacy  program,  are  provided
    47  with written notice of the surrogates' bill of rights enumerated in part
    48  six of article five-C of the family court act.
    49    § 1403. Regulations.  The department of financial services, in consul-
    50  tation with the department of health, shall  promulgate  regulations  to
    51  implement the requirements of this article, and shall annually report to
    52  the  state legislature regarding the practices of surrogacy programs and
    53  all business transactions related to surrogacy in New York  state,  with
    54  recommendations for any necessary amendments to this article.
    55    § 10. The public health law is amended by adding a new article 25-B to
    56  read as follows:

        A. 1071--C                         22
 
     1                                ARTICLE 25-B
     2                            GESTATIONAL SURROGACY
     3  Section 2599-cc. Gestational surrogacy.
     4    § 2599-cc. Gestational surrogacy. 1. The commissioner shall promulgate
     5  regulations  on  the practice of gestational surrogacy. Such regulations
     6  shall include, but not be limited to:
     7    (a) guidelines and procedures for  obtaining  fully  informed  consent
     8  from  potential  persons acting as surrogates, including but not limited
     9  to a full disclosure of any known health risks associated with acting as
    10  a surrogate;
    11    (b) the development and distribution,  in  printed  form  and  on  the
    12  department's  website, of informational material relating to gestational
    13  surrogacy; and
    14    (c) the establishment of a  voluntary  central  tracking  registry  of
    15  persons acting as surrogates, as reported by surrogacy programs licensed
    16  by the department pursuant to article forty-four of the general business
    17  law  upon  the affirmative consent of a person acting as surrogate. Such
    18  registry shall provide a means for gathering  and  maintaining  accurate
    19  information on the:
    20    (i) number of times a person has acted as a surrogate;
    21    (ii) health information of the person acting as surrogate; and
    22    (iii) other information deemed appropriate by the commissioner.
    23    2.  All  such  regulations  shall maintain the anonymity of the person
    24  acting as surrogate and any resulting offspring  and  govern  access  to
    25  information maintained by the registry.
    26    §  11.  Subdivisions  4,  5,  6, 7 and 8 of section 4365 of the public
    27  health law are renumbered subdivisions 5, 6, 7,  8,  and  9  and  a  new
    28  subdivision 4 is added to read as follows:
    29    4.  The  commissioner,  in  consultation  with the transplant council,
    30  shall promulgate regulations on the donation of  ova.  Such  regulations
    31  shall include, but not be limited to:
    32    (a)  guidelines  and  procedures  for obtaining fully informed consent
    33  from potential donors, including but not limited to a full disclosure of
    34  any known health risks of the ova donation process;
    35    (b) the development and distribution,  in  printed  form  and  on  the
    36  department's website, of informational material relating to the donation
    37  of ova; and
    38    (c)  the establishment of a voluntary central tracking registry of ova
    39  donor information, as reported by banks and storage facilities  licensed
    40  pursuant  to  this article upon the affirmative consent of an ova donor.
    41  Such registry shall provide a means for gathering and maintaining  accu-
    42  rate information on the:
    43    (i) number of ova donated from a single donor;
    44    (ii) health information of the donor at the time of the donation; and
    45    (iii) other information deemed appropriate by the commissioner.
    46    In  addition, all such regulations shall maintain the anonymity of the
    47  donor and any resulting offspring and govern access to information main-
    48  tained by the registry.
    49    § 12. This act shall take effect on  the  one  hundred  twentieth  day
    50  after  it  shall have become a law. Effective immediately, the addition,
    51  amendment and/or repeal of any rule  or  regulation  necessary  for  the
    52  implementation  of  this  act on its effective date are authorized to be
    53  made and completed on or before such date.
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