A04319 Summary:

BILL NOA04319
 
SAME ASSAME AS S02765
 
SPONSORPaulin
 
COSPNSRTitone, Lavine, Zebrowski, Weprin, Robinson, Galef, Jaffee, Otis, Cook, Stirpe, Benedetto, Bronson, Brindisi, Mosley, Walter, Ortiz, Dinowitz, Rosenthal, Steck, Harris
 
MLTSPNSRBrennan, Englebright, Gottfried, Markey, Mayer, Peoples-Stokes, Schimel, Skartados, Wright
 
Add Art 5-C Parts 1 - 7 SS581-101 - 581-703, Fam Ct Act; rpld S73 & Art 8, Dom Rel L
 
Establishes the child-parent security act to legally establish a child's relationship with his or her parents.
Go to top    

A04319 Actions:

BILL NOA04319
 
01/30/2015referred to judiciary
01/06/2016referred to judiciary
Go to top

A04319 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A4319
 
SPONSOR: Paulin (MS)
  TITLE OF BILL: An act to amend the family court act, in relation to establishing the child-parent security act; and to repeal section 73 and article 8 of the domestic relations law, relating to legitimacy of chil- dren born by artificial insemination and surrogate parenting contracts   PURPOSE OR GENERAL IDEA OF BILL: To legally establish a child's relationship to his or her parents.   SUMMARY OF SPECIFIC PROVISIONS: Section 1 adds a new article 5-C to the Family Court Act, enacting the "Child-Parent Security Act." Part one of the article provides defi- nitions. Part two establishes the requirements and procedure for obtain- ing a judgment of parentage of a child born through assisted reprod- uction or artificial insemination, pursuant to a gestational carrier arrangement, and for a child whose parentage is established pursuant to section 581-601 of article 581-C. Part three sets forth provisions for determining the parentage of a child of assisted reproduction or artifi- cial insemination. Part four authorizes gestational carrier agreements and sets forth the requirements of such agreements. Part five sets forth the conditions for reimbursement and compensation to donors and gesta- tional carriers. Part six provides for determination of parenthood where an individual can demonstrate by clear and convincing evidence that the parent of the child consented to the formation of a parent- child relationship with the child, the person resided in the same house- hold with the child for a length of time sufficient to have established a parental relationship with the child, the person performed parental functions to a significant degree, and the person formed a parent- child bond with the child. Section 2 repeals section 73 of the Domestic Relations Law. Section 3 repeals Article 8 of the Domestic Relations Law. Section 4 provides the effective date.   JUSTIFICATION: New York law has failed to keep pace with medical advances in assisted reproduction, causing uncertainty about who the legal parents of a child are upon birth. In many cases, parentage created through these technolo- gies is not 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. Importantly, this legislation lifts the ban on surrogacy contracts to permit gestational carrier agreements and sets forth the criteria for such agreements. When all of the requirements set forth in the law are met, the intended parents can obtain an "Order of Parentage" from a court prior to the birth of the child, so that upon birth, the intended parents are the legal parents. The requirements are designed to ensure that all parties enter into the agreement on equal footing and with full knowledge of their duties and obligations. For example, all parties must be represented by independent legal counsel, and the agreement may not limit the right of the carrier to make her own healthcare decisions. Because of New York's laws, couples facing infertility and same-sex couples are forced to go out of state in order to have a child via gestational carrier. This is overly burdensome to the parents, who have often already struggled for many years to have a child. Having an out- of-state gestational carrier does not allow 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. This legislation also establishes a legal procedure for a partner of a biological or adoptive parent who has formed a parental bond with a child after birth, with the consent of the biological or adoptive parent to be declared a parent. This will allow such an individual to continue to have a relationship with the child should the relationship with the biological or adoptive parent dissolve. The Child-Parent Security Act will provide clear and decisive legal procedures to ensure that each child's relationship to his or her parent(s) is legally recognized. The new legal procedures will take into consideration the best interest of the child and the need for clarity and stability in family relationships. It is crucial that New York updates its laws to reflect all the ways in which families are formed.   PRIOR LEGISLATIVE HISTORY: A.6701, 2013 and 2014 referred to judiciary. Same-as S.4617, 2013 and 2014 referred to children and families. A10499, 2012 referred to judici- ary.   FISCAL IMPLICATION: None   EFFECTIVE DATE: This act shall take effect on the one hundred twentieth day after it shall have become a law. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date is authorized to be made on or before such date.
Go to top

A04319 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          4319
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 30, 2015
                                       ___________
 
        Introduced by M. of A. PAULIN, TITONE, LAVINE, ZEBROWSKI, WEPRIN, ROBIN-
          SON,  GALEF, JAFFEE, OTIS, SCARBOROUGH, COOK, STIRPE, BENEDETTO, BRON-
          SON, BRINDISI, MOSLEY, WALTER, ORTIZ, DINOWITZ,  ROSENTHAL  --  Multi-
          Sponsored  by  -- M. of A. BRENNAN, GOTTFRIED, MARKEY, MAYER, SCHIMEL,
          SKARTADOS, WRIGHT -- read once and referred to the Committee on  Judi-
          ciary
 
        AN  ACT  to  amend the family court act, in relation to establishing the
          child-parent security act; and to repeal section 73 and article  8  of
          the domestic relations law, relating to legitimacy of children born by
          artificial insemination and surrogate parenting contracts
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The family court act is amended by adding a new article 5-C
     2  to read as follows:
     3                                  ARTICLE 5-C
     4                          CHILD-PARENT SECURITY ACT
     5  PART 1 General provisions (581-101 - 581-103)
     6       2 Judgment of parentage (581-201 - 581-206)
     7       3 Child  of  assisted  reproduction  or   artificial   insemination
     8         (581-301 - 581-307)
     9       4 Gestational agreement (581-401 - 581-411)
    10       5 Payment to donors and gestational carriers (581-501 - 581-502)
    11       6 Formation of legal parent-child relationship after birth of child
    12         (581-601)
    13       7 Miscellaneous provisions (581-701 - 581-703)
 
    14                                   PART 1
    15                             GENERAL PROVISIONS
    16  Section 581-101. Short title.
    17          581-102. Purpose.
    18          581-103. Definitions.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01093-01-5

        A. 4319                             2
 
     1    §  581-101.  Short title. This article shall be known and may be cited
     2  as the "child-parent security act".
     3    §  581-102.  Purpose. The purpose of this article is to legally estab-
     4  lish a child's relationship to his or her parents.
     5    § 581-103. Definitions.  (a) "Artificial insemination" means insertion
     6  of sperm into female reproductive organs by any means other than  sexual
     7  intercourse,  including  intrauterine  insemination,  with the intent to
     8  cause a pregnancy.
     9    (b) "Assisted reproduction" includes all fertility treatments in which
    10  both eggs and sperm are handled. In  the  foregoing  context,  the  term
    11  includes,  but  is not limited to in-vitro fertilization and transfer of
    12  embryos including donated gametes or donated embryos.
    13    (c) "ART provider" means any entity which assists with assisted repro-
    14  ductive technology.
    15    (d) "Assisted reproductive technology" or  "ART"  is  any  medical  or
    16  scientific intervention, including, but not limited to, assisted reprod-
    17  uction,  provided  for  the purpose of achieving live birth that results
    18  from assisted conception. Assisted conception means the formation  of  a
    19  human embryo outside the body with the intent to produce a live birth.
    20    (e)  "Child"  means  a live born individual of any age whose parentage
    21  may be determined under this act or other law.
    22    (f) "Collaborative reproduction" involves artificial insemination with
    23  donor sperm and any assisted reproduction in which an  individual  other
    24  than the intended parent provides genetic material or agrees to act as a
    25  gestational carrier. It can include, but is not limited to, (1) attempts
    26  by  the intended parent to create a child through means of a gestational
    27  arrangement, with or  without  the  involvement  of  a  donor,  and  (2)
    28  assisted  reproduction  involving a donor where a gestational carrier is
    29  not used.
    30    (g) "Compensation" means payment of  any  valuable  consideration  for
    31  time, effort, pain and/or risk to health in excess of reasonable medical
    32  and ancillary costs.
    33    (h)  "Donor"  means  an individual who produces eggs or sperm used for
    34  assisted reproduction or artificial insemination,  whether  or  not  for
    35  consideration.  Donor  also  includes  an individual or individuals with
    36  dispositional control of an embryo who provide it to another person  for
    37  the  purpose  of  gestation  and  relinquishes  all  present  and future
    38  parental and inheritance rights and obligations to  a  resulting  child.
    39  The  term does not include an intended parent who provides gametes to be
    40  used for assisted reproduction or artificial insemination.
    41    (i) "Embryo" means a cell or  group  of  cells  containing  a  diploid
    42  complement  of  chromosomes  or  group  of  such  cells, not a gamete or
    43  gametes, that has the potential to develop into a live born human  being
    44  if  transferred  into  the  body  of  a  woman under conditions in which
    45  gestation may be reasonably expected to occur.
    46    (j) "Embryo transfer" means all medical and laboratory procedures that
    47  are necessary to effectuate the transfer of an embryo into  the  uterine
    48  cavity.
    49    (k)  "Gamete" means a cell containing a haploid complement of DNA that
    50  has the potential to form an embryo when combined with  another  gamete.
    51  Sperm and eggs are gametes. A gamete may consist of nuclear DNA from one
    52  human  being  combined with the cytoplasm, including cytoplasmic DNA, of
    53  another human being.
    54    (l) "Gamete provider" means an individual who provides sperm  or  eggs
    55  for use in assisted reproduction or artificial insemination.

        A. 4319                             3
 
     1    (m) "Gestational agreement" is a contract between intended parents and
     2  a gestational carrier intended to result in a live birth where the child
     3  will be the legal child of the intended parents.
     4    (n)  "Gestational  carrier"  means  an  adult  woman,  not an intended
     5  parent, who enters into a gestational agreement to bear a child who will
     6  be the legal child of the intended  parents  so  long  as  she  has  not
     7  provided the egg used to conceive the resulting child.
     8    (o)  "Gestational  carrier  arrangement"  means the process by which a
     9  gestational carrier attempts to carry and give birth to a child  created
    10  through assisted reproduction so long as the gestational carrier has not
    11  provided the egg used to conceive the resulting child.
    12    (p)  "Health care practitioner" means an individual licensed or certi-
    13  fied under title eight of the education law acting  within  his  or  her
    14  scope of practice.
    15    (q)  "Intended  parent"  is  an individual who manifests the intent as
    16  provided in this act to be legally  bound  as  the  parent  of  a  child
    17  resulting from assisted reproduction or collaborative reproduction.
    18    (r)  "In-vitro  fertilization"  means  the formation of a human embryo
    19  outside the human body.
    20    (s) "Medical evaluation" means an evaluation and consultation  with  a
    21  health care provider regarding the anticipated pregnancy.
    22    (t)  "Parent"  means  an individual who has established a parent-child
    23  relationship under this act or other law and includes, but is not limit-
    24  ed to: (1) a child's birth parent who is not a  gestational  carrier  or
    25  the  spouse of the gestational carrier; (2) a child's genetic parent who
    26  is not the donor; (3) an individual who has legally adopted  the  child;
    27  (4)  an  individual  who  is  a  parent of the child pursuant to a legal
    28  presumption; (5) an individual who is a parent of the child pursuant  to
    29  an  acknowledgment  or  judgment of parentage pursuant to article two of
    30  this act or other law; (6) an individual who is a parent  of  the  child
    31  pursuant to article three, four, or six of this act.
    32    (u)  "Participant"  means  an  individual who provides a biological or
    33  genetic component of assisted reproduction or  artificial  insemination,
    34  an  intended parent, and the spouse of an intended parent or gestational
    35  carrier. Gestation is a biological component within the meaning of  this
    36  definition.
    37    (v)  "Record"  means  information  inscribed  in  a tangible medium or
    38  stored in an electronic or other medium that is retrievable in perceiva-
    39  ble form.
    40    (w) "Retrieval" means the procurement of eggs or sperm from  a  gamete
    41  provider.
    42    (x)  "Spouse"  means  an  individual  married to another, or who has a
    43  legal relationship entered into under the laws of the United  States  or
    44  of  any  state,  local  or  foreign jurisdiction, which is substantially
    45  equivalent to a marriage, including a civil union or  domestic  partner-
    46  ship.
    47    (y) "State" means a state of the United States, the District of Colum-
    48  bia,  Puerto Rico, the United States Virgin Islands, or any territory or
    49  insular possession subject to the jurisdiction of the United States.
    50    (z) "Time of transfer" means the time at which a gamete or  embryo  is
    51  transferred  into  the  body  of a woman with the intent to produce live
    52  birth.
    53    (aa) "Transfer" means the placement of an embryo or gametes  into  the
    54  body of a woman with the intent to achieve pregnancy and live birth.

        A. 4319                             4
 
     1                                   PART 2
     2                            JUDGMENT OF PARENTAGE
     3  Section 581-201. Judgment of parentage.
     4          581-202. Proceeding  for  judgment  of parentage of a child born
     5                     through assisted reproduction or artificial insemina-
     6                     tion.
     7          581-203. Proceeding for judgment of parentage of  a  child  born
     8                     pursuant to a gestational carrier arrangement.
     9          581-204. Proceeding  for  judgment of parentage of a child whose
    10                     parentage is established pursuant to section  581-601
    11                     of this article.
    12          581-205. Judgment  of  parentage  for  intended  parents who are
    13                     spouses.
    14          581-206. Jurisdiction.
    15    § 581-201. Judgment of parentage.  (a) A civil proceeding may be main-
    16  tained to adjudicate the parentage of a child  under  the  circumstances
    17  set  forth  in  this  article.  This proceeding is governed by the civil
    18  practice law and rules.
    19    (b) A judgment of parentage may be issued prior to birth but shall not
    20  become effective until the birth of the child.
    21    (c) A judgment of parentage shall be issued by the court  (1)  brought
    22  pursuant  to a proceeding authorized pursuant to parts three and four of
    23  this act upon the petition of (i) a child, or (ii) a parent, or (iii)  a
    24  participant,  or  (iv)  the  support/enforcement agency or other govern-
    25  mental agency authorized by other law, or (v) a  representative  author-
    26  ized  by law to act for an individual who would otherwise be entitled to
    27  maintain a proceeding but who is deceased, incapacitated, or a minor, in
    28  order to legally establish the child-parent relationship, (2)  or  in  a
    29  proceeding authorized pursuant to part six of this act upon the petition
    30  of  (i)  a  child,  or (ii) a parent, or (iii) a person claiming to have
    31  formed a parent-child relationship with a child under section 581-601 of
    32  this article, under the following circumstances:
    33    A. A child born through assisted reproduction or artificial  insemina-
    34  tion under part three of this article; or
    35    B.  A  child  born pursuant to a gestational carrier arrangement under
    36  part four of this article; or
    37    C. A child whose parentage can be established pursuant to part six  of
    38  this article.
    39    §  581-202.  Proceeding  for  judgment  of  parentage  of a child born
    40  through  assisted  reproduction  or  artificial  insemination.    (a)  A
    41  proceeding for a judgment of parentage may be commenced:
    42    (1)  if  the  intended parents reside in New York state, in the county
    43  where the intended parents reside any time after pregnancy  is  achieved
    44  or in the county where the child was born or resides; or
    45    (2) if the intended parents and child do not reside in New York state,
    46  up  to  ninety days after the birth of the child in the county where the
    47  child is born.
    48    (b) The petition for a judgment of  parentage  must  be  verified  and
    49  include the following:
    50    (1)  a  statement that the intended parents have been residents of the
    51  state for at least ninety days or if they are not New York  state  resi-
    52  dents, the child was born in the state; and
    53    (2)  a statement from the gestating mother that she became pregnant as
    54  a result of the donation of the gametes or embryos and a  representation
    55  of non-access during the time of conception; and

        A. 4319                             5
 
     1    (3)  a  statement  that  the  intended  parents  consented to assisted
     2  reproduction or artificial insemination pursuant to section  581-304  of
     3  this article; and
     4    (4) where the gametes or embryos were received from a gamete or embryo
     5  storage facility, an attached statement from the facility having custody
     6  of  the  gametes  or  embryos  demonstrating  the donative intent of the
     7  gamete or embryo donor.
     8    (c) The following shall be deemed sufficient proof of a donor's  dona-
     9  tive intent:
    10    (1)  in the case of an anonymous donor, a statement from the gamete or
    11  embryo storage facility with custody of the gametes or embryos that  the
    12  donor  relinquished  any parental or proprietary interest in the gametes
    13  or embryos at the time of donation; and
    14    (2) in the case of a donation from a known donor, a  notarized  state-
    15  ment  from  the  gamete  or  embryo donor acknowledging the donation and
    16  confirming that the donors have no parental or proprietary  interest  in
    17  the gametes or embryos. In the absence of a notarized statement from the
    18  donor,  the  donor  shall  be  served  by mail at the donor's last known
    19  address with notice of the proceeding. Failure to respond to said notice
    20  shall be considered a default and no further notice shall be required.
    21    (d) Where a petition demonstrates the consent of the intended  parents
    22  pursuant  to section 581-304 of this article, the donative intent of the
    23  gamete or embryo  donors  and  that  the  pregnancy  resulted  from  the
    24  donation, the court shall issue a judgment of parentage:
    25    (1)  declaring, that upon the birth of the child, the intended parents
    26  are the only legal parents of the child; and
    27    (2) ordering the intended parents to assume  sole  responsibility  for
    28  the  maintenance  and support of the child immediately upon the birth of
    29  the child; and
    30    (3) ordering that upon the birth of the child, a copy of the  judgment
    31  of  parentage be served on the (i) department of health or New York city
    32  department of mental health and hygiene, or (ii) registrar of births  in
    33  the  hospital  where  the  child is born and directing that the hospital
    34  report the parentage of the  child  to  the  appropriate  department  of
    35  health  in conformity with the court order. If an original birth certif-
    36  icate has already issued, the court shall issue an order  directing  the
    37  appropriate  department  of  health to amend the birth certificate in an
    38  expedited manner and seal the previously issued birth certificate.
    39    § 581-203. Proceeding for judgment of parentage of a child born pursu-
    40  ant to a gestational carrier arrangement.   (a) The  proceeding  may  be
    41  commenced  at any time after the gestational agreement has been executed
    42  by all of the parties. Any party to the gestational agreement not  join-
    43  ing  in the petition must be served with notice of the proceeding. Fail-
    44  ure to respond to the notice  shall  be  considered  a  default  and  no
    45  further notice shall be required.
    46    (b)  The  petition  for  a  judgment of parentage must be verified and
    47  include the following:
    48    (1) A statement that the gestational carrier or the  intended  parents
    49  have  been  residents  of the state for at least ninety days at the time
    50  the gestational agreement was executed; and
    51    (2) A certification from the attorneys  representing  the  petitioners
    52  that  the parties are eligible to participate in the gestational carrier
    53  arrangement as required by section 581-404 of this article and that  the
    54  gestational  agreement contains the required terms under section 581-405
    55  of this article; and

        A. 4319                             6
 
     1    (3) A statement that the parties entered into the  gestational  agree-
     2  ment knowingly and voluntarily.
     3    (c)  Where  a  petition satisfies subdivision (b) of this section, the
     4  court  shall  issue  a  judgment  of   parentage,   without   additional
     5  proceedings or documentation:
     6    (1)  Declaring, that upon the birth of a child born during the term of
     7  the gestational agreement, the intended parents are the legal parents of
     8  the child; and
     9    (2) Declaring, that upon the birth of a child born during the term  of
    10  the  gestational  agreement, the gestational carrier, and her spouse, if
    11  any, are not the legal parents of the child; and
    12    (3) Ordering the gestational carrier and her spouse, if any, to trans-
    13  fer the child to the intended parents if this has not already  occurred;
    14  and
    15    (4)  Ordering  the  intended parents to assume sole responsibility for
    16  the maintenance and support of the child immediately upon the  birth  of
    17  the child; and
    18    (5)  Ordering that upon the birth of the child, a copy of the judgment
    19  of parentage be served on the (i) department of health or New York  city
    20  department  of mental health and hygiene, or (ii) registrar of births in
    21  the hospital where the child is born and  directing  that  the  hospital
    22  report  the  parentage  of  the  child  to the appropriate department of
    23  health in conformity with the court order. If an original birth  certif-
    24  icate  has  already issued, the court shall issue an order directing the
    25  appropriate department of health to amend the birth  certificate  in  an
    26  expedited manner and seal the previously issued birth certificate.
    27    (d)  The  agreement  of the intended parents to pay reasonable compen-
    28  sation to the gestational carrier in excess of  reasonable  medical  and
    29  ancillary  costs  shall  not  be  a bar to the issuance of a judgment of
    30  parentage.
    31    § 581-204. Proceeding for judgment  of  parentage  of  a  child  whose
    32  parentage is established pursuant to section 581-601 of this article.  A
    33  proceeding  for  a  judgment  of  parentage may be commenced by verified
    34  petition to establish parentage under section 581-601 of this article at
    35  any time in the county of residence of the child or of a parent, includ-
    36  ing a person asserting to have formed a parent-child relationship with a
    37  child under section 581-601 of this article.  Upon  a  determination  of
    38  parentage under section 581-601 of this article, the court shall issue a
    39  judgment  of  parentage declaring the parents of the child for all legal
    40  purposes.
    41    § 581-205. Judgment of parentage for intended parents who are spouses.
    42  Notwithstanding or without limitation on presumptions of parentage  that
    43  apply,  a  judgment  of  parentage  may  be  obtained under this part by
    44  intended parents who are each other's spouse.
    45    § 581-206. Jurisdiction.  Proceedings pursuant to this article may  be
    46  instituted  in  the  supreme,  family  or  surrogate's  court except for
    47  proceedings pursuant to section 581-204 of this part may  be  instituted
    48  in the supreme or family court.
 
    49                                   PART 3
    50          CHILD OF ASSISTED REPRODUCTION OR ARTIFICIAL INSEMINATION
    51  Section 581-301. Scope of article.
    52          581-302. Status of donor.
    53          581-303. Parentage  of child of assisted reproduction or artifi-
    54                     cial insemination.

        A. 4319                             7
 
     1          581-304. Consent to assisted reproduction or artificial  insemi-
     2                     nation.
     3          581-305. Limitation on spouses' dispute of parentage of child of
     4                     assisted reproduction and artificial insemination.
     5          581-306. Effect  of  dissolution  of  relationship of spouses or
     6                     withdrawal of consent.
     7          581-307. Effect of death of intended parent.
     8    § 581-301. Scope of article.  This article does not apply to the birth
     9  of a child conceived by means of sexual intercourse.
    10    § 581-302. Status of donor.   A donor is  not  a  parent  of  a  child
    11  conceived  by  means of assisted reproduction or artificial insemination
    12  except as provided in section 581-303 of this part.
    13    § 581-303. Parentage of child of assisted reproduction  or  artificial
    14  insemination.    (a)  An  individual  who  provides gametes for assisted
    15  reproduction or artificial insemination with the intent to be  a  parent
    16  of the child, or consents to assisted reproduction or artificial insemi-
    17  nation  as  provided in section 581-304 of this part, is a parent of the
    18  resulting child for all legal purposes.
    19    (b) Upon application by any participant, the court shall issue a judg-
    20  ment of parentage to any participant who is a parent  pursuant  to  this
    21  act.
    22    §  581-304.  Consent  to assisted reproduction or artificial insemina-
    23  tion.  (a) Where the intended parent who gives birth to a child by means
    24  of assisted reproduction or artificial insemination  is  a  spouse,  the
    25  consent of both spouses to the assisted reproduction or artificial inse-
    26  mination  is  presumed and neither spouse may challenge the parentage of
    27  the child, except as provided in section 581-305 of this part.
    28    (b) Consent to assisted reproduction or artificial insemination by  an
    29  individual  who  intends  to  be  a  parent and is not the spouse of the
    30  intended parent who gives birth to a child by means of assisted  reprod-
    31  uction  or  artificial  insemination  must  be  in a signed record which
    32  acknowledges the intended parents' joint participation and intention  to
    33  parent together.
    34    (c)  The  failure  of  a  person  to  sign a record evidencing his/her
    35  consent as provided  in  subdivision  (b)  of  this  section  shall  not
    36  preclude a finding that such consent existed if the court finds by clear
    37  and  convincing  evidence  that at the time of the child's conception or
    38  birth, both the intended parent who gives birth to the  child  and  such
    39  person  resided  in  the  same  household as intimate partners, and held
    40  themselves and each other out as the parents of the intended child.
    41    § 581-305. Limitation on spouses' dispute of  parentage  of  child  of
    42  assisted reproduction and artificial insemination.  (a) Except as other-
    43  wise  provided  in  subdivision  (b) of this section, neither spouse may
    44  challenge the presumption of parentage of the child unless:
    45    (1) Within two years after learning  of  the  birth  of  the  child  a
    46  proceeding is commenced to adjudicate parentage; and
    47    (2)  The  court  finds  by  clear  and convincing evidence that either
    48  spouse did not consent for the non-gestating spouse to be  a  parent  of
    49  the child.
    50    (b)  A proceeding for a judgment of parentage may be maintained at any
    51  time if the court determines that:
    52    (1) The spouse did not provide gametes for, or  consent  to,  assisted
    53  reproduction  or  artificial  insemination  by  the  individual who gave
    54  birth; and
    55    (2) The spouse and the individual who gave birth  have  not  cohabited
    56  since the spouse knew or had reason to know of the pregnancy; and

        A. 4319                             8
 
     1    (3) The spouse never openly held out the child as his or her own.
     2    (c)  The  limitation  provided  in  this  section applies to a spousal
     3  relationship that has been declared invalid after assisted  reproduction
     4  or artificial insemination.
     5    §  581-306.  Effect of dissolution of relationship of spouses or with-
     6  drawal of consent.  If the relationship of spouses is  dissolved  before
     7  transfer  of eggs, sperm, or embryos, the consent of both spouses to the
     8  use of the gametes or the transfer of embryos is required if the spouses
     9  have joint custody and control of the gametes or  embryos.  However,  if
    10  there is a signed record assigning custody and control of the gametes or
    11  embryos  to  one spouse, that spouse may use or transfer said gametes or
    12  embryos without the consent of the former spouse. The former  spouse  is
    13  not  a  parent of the resulting child unless the former spouse consented
    14  in a record that if assisted  reproduction  or  artificial  insemination
    15  were  to  occur  after a divorce or dissolution of the relationship, the
    16  former spouse would be a parent of the child.
    17    § 581-307. Effect of death of intended parent.   Except  as  otherwise
    18  provided  in  the  estates,  powers and trusts law, if an individual who
    19  consented in a record to be a parent by assisted reproduction or artifi-
    20  cial insemination dies before the transfer of eggs, sperm,  or  embryos,
    21  the  deceased  individual  is not a parent of the resulting child unless
    22  the deceased individual consented in a signed record  that  if  assisted
    23  reproduction  or  artificial insemination were to occur after death, the
    24  deceased individual would be a parent of the child.
 
    25                                   PART 4
    26                            GESTATIONAL AGREEMENT
    27  Section 581-401. Gestational agreement authorized.
    28          581-404. Eligibility.
    29          581-405. Requirements of gestational agreement.
    30          581-406. Termination of gestational agreement.
    31          581-407. Gestational agreement:  effect  of  subsequent  spousal
    32                     relationship.
    33          581-408. Failure to obtain a judgment of parentage.
    34          581-409. Dispute as to gestational agreement.
    35          581-410. Inspection of records.
    36          581-411. Exclusive, continuing jurisdiction.
    37    §  581-401.  Gestational agreement authorized.   (a) If eligible under
    38  this article to enter into a gestational agreement, a gestational carri-
    39  er, her spouse if applicable, and the intended parents may enter into  a
    40  gestational agreement which will be enforceable provided the gestational
    41  agreement meets the requirements of this article.
    42    (b)  A  gestational  agreement shall not apply to the birth of a child
    43  conceived by means of sexual intercourse.
    44    (c) A gestational agreement may provide for  payment  of  compensation
    45  under part five of this article.
    46    (d) A gestational agreement may not limit the right of the gestational
    47  carrier to make decisions to safeguard her health.
    48    §  581-404. Eligibility.   (a) A gestational carrier shall be eligible
    49  to enter into an enforceable gestational agreement under this article if
    50  she has met the following  requirements  at  the  time  the  gestational
    51  agreement is executed:
    52    (1) She is at least twenty-one years of age; and
    53    (2)  She has completed a medical evaluation with a health care practi-
    54  tioner relating to the anticipated pregnancy; and

        A. 4319                             9
 
     1    (3) She has undergone legal consultation with independent legal  coun-
     2  sel  regarding  the terms of the gestational agreement and the potential
     3  legal consequences of the gestational carrier arrangement; and
     4    (4) She has, or the gestational agreement stipulates that prior to the
     5  embryo  transfer, she will obtain, a health insurance policy that covers
     6  major medical treatments and hospitalization, and the  health  insurance
     7  policy  has  a term that extends throughout the duration of the expected
     8  pregnancy and for eight weeks after the birth of the child;  the  policy
     9  may  be  procured  and paid for by the intended parents on behalf of the
    10  gestational carrier pursuant to the gestational agreement.
    11    (b) The intended parents shall be eligible to enter into an  enforcea-
    12  ble  gestational  agreement  under this article if he, she, or they have
    13  met the following requirements at the time the gestational agreement was
    14  executed:
    15    (1) He, she, or they have undergone legal consultation with  independ-
    16  ent  legal  counsel regarding the terms of the gestational agreement and
    17  the potential legal consequences of the gestational carrier arrangement;
    18  and
    19    (2) He or she is an adult person who is not in a spousal relationship,
    20  or adult spouses together, or any two adults who are  intimate  partners
    21  together, except where the intended parent and his or her spouse:
    22    (i)  are living separate and apart pursuant to a decree or judgment of
    23  separation or pursuant to a written agreement of  separation  subscribed
    24  by  the  parties thereto and acknowledged or proved in the form required
    25  to entitle a deed to be recorded; or
    26    (ii) have been living separate and apart  for  at  least  three  years
    27  prior  to execution of the gestational agreement, then the spouse of the
    28  intended parent is not required to be a party to the gestational  agree-
    29  ment and shall not have parental rights or obligations to the child.
    30    §  581-405.  Requirements of gestational agreement.  (a) A gestational
    31  agreement shall be deemed to have satisfied  the  requirements  of  this
    32  article and be enforceable if it meets the following requirements:
    33    (1)  It  shall be in a signed record verified by the intended parents,
    34  the gestational carrier, and her spouse, if any; and
    35    (2) It shall be executed prior to  the  commencement  of  any  medical
    36  procedures  in  furtherance of the gestational carrier arrangement other
    37  than medical evaluations  necessary  to  determine  eligibility  of  the
    38  parties pursuant to section 581-404 of this part; and
    39    (3)  It  shall be executed by a gestational carrier meeting the eligi-
    40  bility requirements of subdivision (a) of section 581-404 of  this  part
    41  and by the gestational carrier's spouse, if any; and
    42    (4)  It  shall be executed by intended parents meeting the eligibility
    43  requirements of subdivision (b) of section 581-404 of this part; and
    44    (5) The gestational carrier and the intended parents shall  have  been
    45  represented  by  separate, independent counsel in all matters concerning
    46  the gestational carrier arrangement and the gestational agreement; and
    47    (6) If the gestational agreement provides for the payment  of  compen-
    48  sation  to  the  gestational  carrier,  the compensation shall have been
    49  placed in escrow with an independent escrow agent prior  to  the  gesta-
    50  tional  carrier's  commencement  of  any  medical  procedure  other than
    51  medical evaluations necessary to  determine  the  gestational  carrier's
    52  eligibility; and
    53    (7) The gestational agreement must include the following terms:
    54    (i) As to the gestational carrier and her spouse, if any:
    55    (A)  the agreement of the gestational carrier to undergo embryo trans-
    56  fer and attempt to carry and give birth to the child; and

        A. 4319                            10
 
     1    (B) the agreement of the gestational carrier and her spouse,  if  any,
     2  to  surrender  custody of all resulting children to the intended parents
     3  immediately upon the birth; and
     4    (C)  the right of the gestational carrier to utilize the services of a
     5  health care practitioner of her choosing, after  consultation  with  the
     6  intended parents, to provide her care during the pregnancy; and
     7    (ii) As to the intended parent or parents:
     8    (A)  the  agreement  to accept custody of all resulting children imme-
     9  diately upon birth regardless of number, gender, or mental  or  physical
    10  condition; and
    11    (B) the agreement to assume sole responsibility for the support of the
    12  children immediately upon the children's birth; and
    13    (C)  the  agreement  that  the  rights and obligations of the intended
    14  parent or parents under the gestational agreement are not assignable.
    15    § 581-406. Termination of gestational agreement.   (a) After  issuance
    16  of  a judgment of parentage pursuant to section 581-203 of this article,
    17  but before the gestational carrier becomes pregnant by means of assisted
    18  reproduction, the gestational carrier, her spouse, if any, or either  of
    19  the  intended  parents may terminate the gestational agreement by giving
    20  notice of termination in a record to all other parties and any liability
    21  resulting therefrom will be determined pursuant to  section  581-408  of
    22  this part.
    23    (b)  An  individual  who terminates a gestational agreement under this
    24  section shall file notice of the termination with the court. On  receipt
    25  of  the  notice, the court shall vacate the judgment of parentage issued
    26  under this article.
    27    §  581-407.  Gestational  agreement:  effect  of  subsequent   spousal
    28  relationship.  After the execution of a gestational agreement under this
    29  article,  the subsequent spousal relationship of the gestational carrier
    30  does not affect the validity of a gestational  agreement,  her  spouse's
    31  consent to the agreement shall not be required, and her spouse shall not
    32  be the presumed parent of the resulting child.
    33    §  581-408.  Failure  to  obtain  a judgment of parentage.   Where the
    34  intended parents or the gestational carrier fail to obtain a judgment of
    35  parentage pursuant to section 581-203 of this article, the parentage  of
    36  a  child born as the result of a gestational carrier arrangement will be
    37  determined based on the best interests of the child taking into  account
    38  genetics and the intent of the parties.
    39    § 581-409. Dispute as to gestational agreement.  (a) Any dispute which
    40  is  related to a gestational agreement other than disputes as to parent-
    41  age shall be resolved by the supreme court, which  shall  determine  the
    42  respective  rights  and  obligations  of  the  parties. If a gestational
    43  agreement does not meet the requirements of this article, the  agreement
    44  is not enforceable.
    45    (b)  Except  as  expressly  provided in the gestational agreement, the
    46  intended parent or parents and gestational carrier shall be entitled  to
    47  all  remedies  available  at law or equity in any dispute related to the
    48  gestational agreement.
    49    (c) There shall be no specific  performance  remedy  available  for  a
    50  breach  by  the gestational carrier of a gestational agreement term that
    51  requires her to be impregnated.
    52    § 581-410. Inspection of records.  The proceedings, records, and iden-
    53  tities of the individual parties to a gestational agreement  under  this
    54  article  shall  be sealed except upon the petition of the parties to the
    55  gestational agreement or the child born as a result of  the  gestational
    56  carrier arrangement.

        A. 4319                            11
 
     1    §  581-411. Exclusive, continuing jurisdiction.  Subject to the juris-
     2  dictional standards of section seventy-six  of  the  domestic  relations
     3  law, the court conducting a proceeding under this article has exclusive,
     4  continuing  jurisdiction  of  all matters arising out of the gestational
     5  agreement until a child born to the gestational carrier during the peri-
     6  od governed by the agreement attains the age of one hundred eighty days.
 
     7                                   PART 5
     8                 PAYMENT TO DONORS AND GESTATIONAL CARRIERS
     9  Section 581-501. Reimbursement.
    10          581-502. Compensation.
    11    §  581-501.  Reimbursement.   (a) A donor who has entered into a valid
    12  agreement to be a donor, may  receive  reimbursement  from  an  intended
    13  parent  or  parents  for economic losses incurred in connection with the
    14  donation which result from the retrieval or storage of gametes or  embr-
    15  yos.
    16    (b)  Premiums  paid  for  insurance  against  economic losses directly
    17  resulting from the retrieval  or  storage  of  gametes  or  embryos  for
    18  donation may be reimbursed.
    19    §  581-502. Compensation.   (a) Compensation may be paid to a donor or
    20  gestational carrier based on services rendered, expenses that have  been
    21  or will be incurred, time, and inconvenience. Under no circumstances may
    22  compensation  be  paid  to purchase gametes or embryos or to pay for the
    23  relinquishment of a parental interest in a child.
    24    (b) The compensation, if any, paid to a donor or  gestational  carrier
    25  must be reasonable and negotiated in good faith between the parties, and
    26  said  payments to a gestational carrier shall not exceed the duration of
    27  the pregnancy and recuperative period of up to  eight  weeks  after  the
    28  birth of the child.
    29    (c)  Compensation may not be conditioned upon the purported quality or
    30  genome-related traits of the gametes or embryos.
    31    (d) Compensation may not be conditioned on actual genotypic or  pheno-
    32  typic characteristics of the donor or of the child.
 
    33                                   PART 6
    34      FORMATION OF LEGAL PARENT-CHILD RELATIONSHIP AFTER BIRTH OF CHILD
    35  Section 581-601. Determination of parenthood.
    36    § 581-601. Determination of parenthood.  (a) A person seeking to qual-
    37  ify for a judgment of parentage under this part is referred to herein as
    38  "putative parent".
    39    (b)  The court shall issue a judgment of parentage to a petitioner who
    40  demonstrates the following by clear and convincing evidence:
    41    (1) Any parent or  parents  of  a  child  consented  to  the  putative
    42  parent's  formation  of a parent-child relationship with the child, such
    43  consent to be expressed in written form, including but not  limited  to,
    44  any  of  the  following examples: a signed letter agreement, an executed
    45  contract, a birth announcement, a  religious  ceremony  document,  or  a
    46  school or medical record; and
    47    (2)  The  putative parent resided in the same household with the child
    48  for a length of time sufficient, given the age of  the  child,  to  have
    49  established  with the child a bonded, dependent relationship parental in
    50  nature; and
    51    (3) The putative parent performed parental functions for the child  to
    52  a significant degree; and
    53    (4) The putative parent formed a parent-child bond with the child; and
    54    (5) Such judgment is in the best interest of the child.

        A. 4319                            12
 
     1    (c)  A putative parent under this part shall not include a grandparent
     2  of such minor child, a person whose relationship with the child is based
     3  on payment by the parent, or a person who has not at any  time  been  an
     4  intimate partner with a parent of the child.
     5    (d)  The  court shall appoint an attorney for the child to represent a
     6  minor who is the subject of the proceeding.
     7    (e) A parent's withdrawal of consent to the parent-child  relationship
     8  subsequent  to  the  occurrence of the factors in paragraphs one through
     9  five of subdivision (b) of this  section  shall  not  change  the  legal
    10  parental  status  or rights of the putative parent qualifying under this
    11  part.
    12    (f) The putative parent qualifying as  a  parent  under  this  section
    13  shall be deemed to be the legal parent of such child for all purposes.
    14    (g)  A  judgment  of  parentage  shall  be  issued pursuant to section
    15  581-204 of this  article  confirming  establishment  of  a  parent-child
    16  relationship as provided in this part.
 
    17                                   PART 7
    18                          MISCELLANEOUS PROVISIONS
    19  Section 581-701. Remedial.
    20          581-702. Severability.
    21          581-703. Parent  under section seventy of the domestic relations
    22                     law.
    23    § 581-701. Remedial.   This legislation is hereby  declared  to  be  a
    24  remedial  statute and is to be construed liberally to secure the benefi-
    25  cial interests and purposes thereof for the best interests of the child.
    26    § 581-702. Severability.  The invalidation of any part of this  legis-
    27  lation  by  a  court  of  competent jurisdiction shall not result in the
    28  invalidation of any other part.
    29    § 581-703. Parent under section seventy of the domestic relations law.
    30  The term "parent" in section seventy of the domestic relations law shall
    31  include a person established to be a parent under this  article  or  any
    32  other relevant law.
    33    § 2. Section 73 of the domestic relations law is REPEALED.
    34    § 3. Article 8 of the domestic relations law is REPEALED.
    35    § 4. This act shall take effect on the one hundred twentieth day after
    36  it  shall have become a law. Effective immediately, the addition, amend-
    37  ment and/or repeal of any rule or regulation necessary for the implemen-
    38  tation of this act on its effective date is authorized to be made on  or
    39  before such date.
Go to top