STATE OF NEW YORK ________________________________________________________________________
2071--B
2019-2020 Regular Sessions
IN SENATE
January 22, 2019 ___________
Introduced by Sens. HOYLMAN, ADDABBO, BAILEY, BIAGGI, BROOKS, CARLUCCI, GAUGHRAN, GIANARIS, GOUNARDES, JACKSON, KAMINSKY, KAPLAN, KAVANAGH, KENNEDY, MARTINEZ, METZGER, MONTGOMERY, MYRIE, PARKER, RAMOS, RIVERA, SALAZAR, SANDERS, SAVINO, SERRANO, SKOUFIS, STAVISKY -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, 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. LBD01279-27-9
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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.
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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
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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-
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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
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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.
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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.
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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
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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:
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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:
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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.
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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.
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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
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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
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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:
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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:
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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
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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
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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
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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.
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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:
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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.