Bill Text: NY A01071 | 2019-2020 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relates to judgments of parentage for children conceived through assisted reproduction or pursuant to surrogacy agreements; restricts genetic surrogate parenting contracts; regulates surrogacy programs; repeals provisions relating to the legitimacy of children born by artificial insemination.

Spectrum: Partisan Bill (Democrat 36-0)

Status: (Introduced) 2019-06-10 - print number 1071c [A01071 Detail]

Download: New_York-2019-A01071-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          1071
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    January 14, 2019
                                       ___________
        Introduced  by  M. of A. PAULIN, ZEBROWSKI, WEPRIN, GALEF, JAFFEE, OTIS,
          COOK, STIRPE, BENEDETTO, BRONSON, MOSLEY, ORTIZ,  DINOWITZ,  L. ROSEN-
          THAL,   STECK,   HEVESI,   SIMON,  WOERNER,  SOLAGES,  CARROLL,  FAHY,
          SEAWRIGHT, DE LA ROSA, ROZIC, SIMOTAS -- Multi-Sponsored by --  M.  of
          A. ENGLEBRIGHT, GOTTFRIED, PEOPLES-STOKES -- read once and referred to
          the Committee on Judiciary
        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 - 581-205)
     7       3. Child of assisted reproduction (581-301 - 581-307)
     8       4. Gestational agreement (581-401 - 581-411)
     9       5. Payment to donors and gestational carriers (581-501 - 581-502)
    10       6. Miscellaneous provisions (581-601 - 581-604)
    11                                   PART 1
    12                             GENERAL PROVISIONS
    13  Section 581-101. Short title.
    14          581-102. Purpose.
    15          581-103. Definitions.
    16    § 581-101. Short title. This article shall be known and may  be  cited
    17  as the "child-parent security act".
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01279-01-9

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

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     1    (l) "Gestational carrier arrangement" means the  process  by  which  a
     2  gestational  carrier attempts to carry and give birth to a child created
     3  through assisted reproduction so long as the gestational carrier has not
     4  provided the egg used to conceive the resulting child.
     5    (m)  "Health care practitioner" means an individual licensed or certi-
     6  fied under title eight of the education law acting  within  his  or  her
     7  scope of practice.
     8    (n)  "Intended  parent"  is  an individual who manifests the intent as
     9  provided in this act to be legally  bound  as  the  parent  of  a  child
    10  resulting from assisted reproduction or collaborative reproduction.
    11    (o)  "In  vitro  fertilization"  means the formation of a human embryo
    12  outside the human body.
    13    (p) "Parent" means an individual who has  established  a  parent-child
    14  relationship under this act or other law and includes, but is not limit-
    15  ed  to:  (1)  a child's birth parent who is not a gestational carrier or
    16  the spouse of the gestational carrier; (2) a child's genetic parent  who
    17  is  not  the donor; (3) an individual who has legally adopted the child;
    18  (4) an individual who is a parent of  the  child  pursuant  to  a  legal
    19  presumption;  (5) an individual who is a parent of the child pursuant to
    20  an acknowledgment or judgment of parentage pursuant to  article  two  of
    21  this  act  or  other law; (6) an individual who is a parent of the child
    22  pursuant to article three or four of this act.
    23    (q) "Participant" means an individual who  provides  a  biological  or
    24  genetic  component of assisted reproduction, an intended parent, and the
    25  spouse of an intended parent or  gestational  carrier.  Gestation  is  a
    26  biological component within the meaning of this definition.
    27    (r)  "Record"  means  information  inscribed  in  a tangible medium or
    28  stored in an electronic or other medium that is retrievable in perceiva-
    29  ble form.
    30    (s) "Retrieval" means the procurement of eggs or sperm from  a  gamete
    31  provider.
    32    (t)  "Spouse"  means  an  individual  married to another, or who has a
    33  legal relationship entered into under the laws of the United  States  or
    34  of  any  state,  local  or  foreign jurisdiction, which is substantially
    35  equivalent to a marriage, including a civil union or  domestic  partner-
    36  ship.
    37    (u) "State" means a state of the United States, the District of Colum-
    38  bia,  Puerto Rico, the United States Virgin Islands, or any territory or
    39  insular possession subject to the jurisdiction of the United States.
    40    (v) "Transfer" means the placement of an embryo or  gametes  into  the
    41  body of a woman with the intent to achieve pregnancy and live birth.
    42                                   PART 2
    43                            JUDGMENT OF PARENTAGE
    44  Section 581-201. Judgment of parentage.
    45          581-202. Proceeding  for  judgment  of parentage of a child born
    46                     through assisted reproduction.
    47          581-203. Proceeding for judgment of parentage of  a  child  born
    48                     pursuant to a gestational carrier arrangement.
    49          581-204. Judgment  of  parentage  for  intended  parents who are
    50                     spouses.
    51          581-205. Jurisdiction.
    52    § 581-201. Judgment of parentage.  (a) A civil proceeding may be main-
    53  tained to adjudicate the parentage of a child  under  the  circumstances
    54  set  forth  in  this  article.  This proceeding is governed by the civil
    55  practice law and rules.

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     1    (b) A judgment of parentage may be issued prior to birth but shall not
     2  become effective until the birth of the child.
     3    (c)  A  judgment  of  parentage  shall be issued by the court upon the
     4  petition of (1) a child, or (2) a parent or a presumed parent, or (3)  a
     5  participant, or (4) the support/enforcement agency or other governmental
     6  agency  authorized  by  other law, or (5) a representative authorized by
     7  law to act for an individual who would otherwise be entitled to maintain
     8  a proceeding but who is deceased, incapacitated, or a minor, in order to
     9  legally establish the child-parent relationship of either a  child  born
    10  through  assisted  reproduction  under  part  three of this article or a
    11  child born pursuant to a gestational carrier arrangement under part four
    12  of this article.
    13    § 581-202. Proceeding for  judgment  of  parentage  of  a  child  born
    14  through  assisted  reproduction.    (a)  A  proceeding for a judgment of
    15  parentage may be commenced:
    16    (1) if the intended parent resides in New York state,  in  the  county
    17  where  the  intended parent resides any time after pregnancy is achieved
    18  or in the county where the child was born or resides; or
    19    (2) if the intended parent and child do not reside in New York  state,
    20  up  to  ninety days after the birth of the child in the county where the
    21  child was born.
    22    (b) The petition for a judgment of  parentage  must  be  verified  and
    23  include the following:
    24    (1)  a  statement  that the intended parent has been a resident of the
    25  state for at least ninety days or if the intended parent is  not  a  New
    26  York state resident, that the child was born in the state; and
    27    (2)  a  statement  from the gestating parent that the gestating parent
    28  became pregnant as a result of the donation of the gamete or embryo  and
    29  a representation of non-access during the time of conception; and
    30    (3)  a  statement  that the non-gestating intended parent consented to
    31  assisted reproduction pursuant to section 581-304 of this article; and
    32    (4) proof of donor's donative intent.
    33    (c) The following shall be deemed sufficient proof of a donor's  dona-
    34  tive intent for purposes of this section:
    35    (1) in the case of an anonymous donor or where gametes or embryos have
    36  previously  been  relinquished to a gamete or embryo storage facility, a
    37  statement from the gamete or embryo storage facility with custody of the
    38  gametes or embryos that the  donor  does  not  retain  any  parental  or
    39  proprietary interest in the gametes or embryos; or
    40    (2)  in  the  case of a donation from a known donor, a record from the
    41  gamete or embryo donor acknowledging the donation  and  confirming  that
    42  the  donor  has  no  parental  or proprietary interest in the gametes or
    43  embryos.  The record shall be signed by the gamete or embryo donor:
    44    i. before a notary public, or
    45    ii. before two witnesses who are not the intended parents, or
    46    iii. before the health care provider, who supervised the donation.
    47    (3) In the absence of a record  pursuant  to  paragraph  two  of  this
    48  subdivision,  notice  shall  be  given to the donor at least twenty days
    49  prior to the proceeding by delivery  of  a  copy  of  the  petition  and
    50  notice.  Upon  a  showing to the court, by affidavit or otherwise, on or
    51  before the date of the proceeding or within such  further  time  as  the
    52  court may allow, that personal service cannot be effected at the donor's
    53  last  known address with reasonable effort, notice may be given, without
    54  prior court order therefore, at least twenty days prior to the  proceed-
    55  ing  by  registered or certified mail directed to the donor's last known

        A. 1071                             5
     1  address. Notice by publication shall not be required to be  given  to  a
     2  donor entitled to notice pursuant to the provisions of this section.
     3    (4)  Notwithstanding  the  above,  where  sperm  is provided under the
     4  supervision of a health care provider to someone other  than  the  sperm
     5  provider's  intimate  partner  or  spouse  without a record of the sperm
     6  provider's intent to parent, the sperm provider  is  presumed  to  be  a
     7  Donor and notice is not required.
     8    (d)  Where  a  petition  for parentage demonstrates the consent of the
     9  intended parent to assisted reproduction, the  donative  intent  of  the
    10  gamete  or  embryo  donor  and  that  the  pregnancy  resulted  from the
    11  donation, the court shall issue a judgment of parentage:
    12    (1) declaring, that upon the birth of the child, the  intended  parent
    13  is the only legal parent of the child; and
    14    (2) ordering the intended parent to assume sole responsibility for the
    15  maintenance  and  support of the child immediately upon the birth of the
    16  child; and
    17    (3) ordering that upon the birth of the child, a copy of the  judgment
    18  of  parentage be served on the (i) department of health or New York city
    19  department of mental health and hygiene, or (ii) registrar of births  in
    20  the  hospital  where  the  child is born and directing that the hospital
    21  report the parentage of the  child  to  the  appropriate  department  of
    22  health  in conformity with the court order. If an original birth certif-
    23  icate has already issued, the court shall issue an order  directing  the
    24  appropriate  department  of  health to amend the birth certificate in an
    25  expedited manner and seal the previously issued birth certificate.
    26    § 581-203. Proceeding for judgment of parentage of a child born pursu-
    27  ant to a gestational carrier arrangement.   (a) The  proceeding  may  be
    28  commenced  at any time after the gestational agreement has been executed
    29  by all of the parties. Any party to the gestational agreement not  join-
    30  ing  in the petition must be served with notice of the proceeding. Fail-
    31  ure to respond to the notice  shall  be  considered  a  default  and  no
    32  further notice shall be required.
    33    (b)  The  petition  for  a  judgment of parentage must be verified and
    34  include the following:
    35    (1) A statement that the gestational carrier or  the  intended  parent
    36  has  been  a  resident of the state for at least ninety days at the time
    37  the gestational agreement was executed; and
    38    (2) A certification from the attorneys  representing  the  petitioners
    39  that  the parties are eligible to participate in the gestational carrier
    40  arrangement as required by section 581-404 of this article and that  the
    41  gestational  agreement contains the required terms under section 581-405
    42  of this article; and
    43    (3) A statement that the parties entered into the  gestational  agree-
    44  ment knowingly and voluntarily.
    45    (c)  Where  a  petition satisfies subdivision (b) of this section, the
    46  court  shall  issue  a  judgment  of   parentage,   without   additional
    47  proceedings or documentation:
    48    (1)  Declaring, that upon the birth of a child born during the term of
    49  the gestational agreement, the intended parent is the  legal  parent  of
    50  the child; and
    51    (2)  Declaring, that upon the birth of a child born during the term of
    52  the gestational agreement, the gestational carrier, and the  gestational
    53  carrier's spouse, if any, is not the legal parent of the child; and
    54    (3)  Ordering  the  gestational  carrier and the gestational carrier's
    55  spouse, if any, to transfer the child to the intended parent if this has
    56  not already occurred; and

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     1    (4) Ordering the intended parent to assume sole responsibility for the
     2  maintenance and support of the child immediately upon the birth  of  the
     3  child; and
     4    (5)  Ordering that upon the birth of the child, a copy of the judgment
     5  of parentage be served on the (i) department of health or New York  city
     6  department  of mental health and hygiene, or (ii) registrar of births in
     7  the hospital where the child is born and  directing  that  the  hospital
     8  report  the  parentage  of  the  child  to the appropriate department of
     9  health in conformity with the court order. If an original birth  certif-
    10  icate  has  already issued, the court shall issue an order directing the
    11  appropriate department of health to amend the birth  certificate  in  an
    12  expedited manner and seal the previously issued birth certificate.
    13    (d) In the event the certification required by paragraph two of subdi-
    14  vision  (b)  of  this  section  cannot be made because of a technical or
    15  non-substantial deviation from the requirements of sections  581-404  or
    16  581-405  of  this article; the court may nevertheless enforce the agree-
    17  ment and issue an order of parentage if the court determines the  agree-
    18  ment  is  in  substantial  compliance  with the requirements of sections
    19  581-404 and 581-405 of this article.
    20    (e) The agreement of the intended parent  to  pay  reasonable  compen-
    21  sation  to  the  gestational carrier in excess of reasonable medical and
    22  ancillary costs shall not be a bar to the  issuance  of  a  judgment  of
    23  parentage.
    24    § 581-204. Judgment of parentage for intended parents who are spouses.
    25  Notwithstanding  or without limitation on presumptions of parentage that
    26  apply, a judgment of parentage  may  be  obtained  under  this  part  by
    27  intended parents who are each other's spouse.
    28    §  581-205. Jurisdiction.  Proceedings pursuant to this article may be
    29  instituted in the supreme, family or surrogate's court.
    30                                   PART 3
    31                       CHILD OF ASSISTED REPRODUCTION
    32  Section 581-301. Scope of article.
    33          581-302. Status of donor.
    34          581-303. Parentage of child of assisted reproduction.
    35          581-304. Consent to assisted reproduction.
    36          581-305. Limitation on spouses' dispute of parentage of child of
    37                     assisted reproduction.
    38          581-306. Effect of embryo disposition agreement between intended
    39                     parents which transfers custody and  control  to  one
    40                     intended parent.
    41          581-307. Effect of death of intended parent.
    42    § 581-301. Scope of article.  This article does not apply to the birth
    43  of a child conceived by means of sexual intercourse.
    44    §  581-302.  Status  of  donor.    A  donor is not a parent of a child
    45  conceived by means of assisted reproduction.
    46    § 581-303. Parentage of child of assisted reproduction.  (a) An  indi-
    47  vidual who provides gametes for assisted reproduction with the intent to
    48  be  a parent of the child and consents to assisted reproduction with the
    49  consent of the gestating parent as provided in section 581-304  of  this
    50  part, is a parent of the resulting child for all legal purposes.
    51    (b) Upon application by any participant, the court shall issue a judg-
    52  ment  of  parentage  to any participant who is a parent pursuant to this
    53  act.
    54    § 581-304. Consent to assisted reproduction.  (a) Where  the  intended
    55  parent who gives birth to a child by means of assisted reproduction is a

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     1  spouse,  the  consent  of  both  spouses to the assisted reproduction is
     2  presumed and neither spouse may challenge the parentage  of  the  child,
     3  except as provided in section 581-305 of this part.
     4    (b)  Where  the intended parent who gives birth to a child by means of
     5  assisted reproduction is not a  spouse,  the  consent  to  the  assisted
     6  reproduction  must  be  in  a record in such a manner as to indicate the
     7  mutual agreement of the intended parents to conceive and parent a  child
     8  together.
     9    (c)  The  absence  of  a  record  described in subdivision (b) of this
    10  section shall not preclude a finding that such consent  existed  if  the
    11  court  finds  by  clear  and convincing evidence that at the time of the
    12  assisted reproduction the intended parents agreed to conceive and parent
    13  the child together.
    14    § 581-305. Limitation on spouses' dispute of  parentage  of  child  of
    15  assisted  reproduction.  (a) Except as otherwise provided in subdivision
    16  (b) of this section, neither spouse may  challenge  the  presumption  of
    17  parentage of the child unless:
    18    (1)  Within  two  years  after  learning  of  the birth of the child a
    19  proceeding is commenced to adjudicate parentage; and
    20    (2) The court finds by  clear  and  convincing  evidence  that  either
    21  spouse  did  not  consent for the non-gestating spouse to be a parent of
    22  the child.
    23    (b) A proceeding for a judgment of parentage may be maintained at  any
    24  time if the court finds by clear and convincing evidence that:
    25    (1)  The  spouse did not consent to assisted reproduction by the indi-
    26  vidual who gave birth; and
    27    (2) The spouse and the individual who gave birth  have  not  cohabited
    28  since the spouse knew or had reason to know of the pregnancy; and
    29    (3) The spouse never openly held out the child as his or her own.
    30    (c)  The  limitation  provided  in  this  section applies to a spousal
    31  relationship that has been declared invalid after assisted  reproduction
    32  or artificial insemination.
    33    §  581-306.  Effect  of  embryo disposition agreement between intended
    34  parents which transfers custody and control to one intended parent.  (a)
    35  An embryo disposition agreement  between  intended  parents  with  joint
    36  custody  and  control  of an embryo shall be binding under the following
    37  circumstances:
    38    (1) it is in writing;
    39    (2) each intended parent had  the  advice  of  counsel  prior  to  its
    40  execution; and
    41    (3)  where  the  intended parents are married, transfer of custody and
    42  control occurs only upon divorce.
    43    (b) The intended parent who  transfers  custody  and  control  of  the
    44  embryo  is  not  a  parent  of any child born from the embryo unless the
    45  agreement states that he or she consents to be a parent.
    46    (c) If the intended parent transferring custody and  control  consents
    47  to be a parent, he or she may withdraw his or her consent to be a parent
    48  upon  notice  to  the  embryo storage facility and to the other intended
    49  parent prior to transfer of the embryo. If he or  she  timely  withdraws
    50  consent  to  parent  he or she is not a parent for any purpose including
    51  support obligations but the embryo transfer may still proceed.
    52    (d) An embryo disposition agreement or advance directive that  is  not
    53  in compliance with subdivision (a) of this section may still be found to
    54  be  enforceable by the court after balancing the respective interests of
    55  the parties except that under no circumstances may the  intended  parent
    56  who  divested  him or herself of custody and control be declared to be a

        A. 1071                             8
     1  parent for any purpose without his or her consent.  The  parent  awarded
     2  custody  and control of the embryos shall, in this instance, be declared
     3  to be the only parent of the child.
     4    §  581-307.  Effect of death of intended parent.  If an individual who
     5  consented in a record to be  a  parent  by  assisted  reproduction  dies
     6  before  the transfer of eggs, sperm, or embryos, the deceased individual
     7  is not a parent of the resulting child unless  the  deceased  individual
     8  consented in a signed record that if assisted reproduction were to occur
     9  after  death,  the  deceased  individual would be a parent of the child,
    10  provided that the record complies with the estates,  powers  and  trusts
    11  law.
    12                                   PART 4
    13                            GESTATIONAL AGREEMENT
    14  Section 581-401. Gestational agreement authorized.
    15          581-404. Eligibility.
    16          581-405. Requirements of gestational agreement.
    17          581-406. Termination of gestational agreement.
    18          581-407. Gestational  agreement:  effect  of  subsequent spousal
    19                     relationship.
    20          581-408. Failure to obtain a judgment of parentage.
    21          581-409. Dispute as to gestational agreement.
    22          581-410. Inspection of records.
    23          581-411. Exclusive, continuing jurisdiction.
    24    § 581-401. Gestational agreement authorized.   (a) If  eligible  under
    25  this article to enter into a gestational agreement, a gestational carri-
    26  er,  the  gestational  carrier's  spouse if applicable, and the intended
    27  parent may enter into a gestational agreement which will be  enforceable
    28  provided  the gestational agreement meets the requirements of this arti-
    29  cle.
    30    (b) A gestational agreement shall not apply to the birth  of  a  child
    31  conceived by means of sexual intercourse.
    32    (c)  A  gestational  agreement may provide for payment of compensation
    33  under part five of this article.
    34    (d) A gestational agreement may not limit the right of the gestational
    35  carrier to make decisions to safeguard the gestational carrier's  health
    36  or that of any fetus or embryo the gestational carrier is carrying.
    37    (e) A gestational agreement may not limit the right of the gestational
    38  carrier  to  terminate  the pregnancy or reduce the number of fetuses or
    39  embryos the gestational carrier is carrying.
    40    § 581-404. Eligibility.  (a) A gestational carrier shall  be  eligible
    41  to enter into an enforceable gestational agreement under this article if
    42  the  gestational  carrier has met the following requirements at the time
    43  the gestational agreement is executed:
    44    (1) The gestational carrier is at least twenty-one years of age; and
    45    (2) The gestational carrier has not provided the egg used to  conceive
    46  the resulting child; and
    47    (3)  The gestational carrier has completed a medical evaluation with a
    48  health care practitioner relating to the anticipated pregnancy; and
    49    (4) The gestational carrier, and the gestational carrier's  spouse  if
    50  applicable  have  undergone  legal  consultation  with independent legal
    51  counsel of their own choosing which may be  paid  for  by  the  intended
    52  parent  regarding  the terms of the gestational agreement and the poten-
    53  tial legal consequences of the gestational carrier arrangement; and
    54    (5) The gestational carrier has, or the gestational  agreement  stipu-
    55  lates  that  prior  to the embryo transfer, the gestational carrier will

        A. 1071                             9
     1  obtain, a health insurance policy that covers major  medical  treatments
     2  and  hospitalization,  and  the  health insurance policy has a term that
     3  extends throughout the duration of the expected pregnancy and for  eight
     4  weeks  after the birth of the child; the policy may be procured and paid
     5  for by the intended parents on behalf of the gestational carrier  pursu-
     6  ant to the gestational agreement.
     7    (b) The intended parent shall be eligible to enter into an enforceable
     8  gestational  agreement  under  this article if he, she, or they have met
     9  the following requirements at the time  the  gestational  agreement  was
    10  executed:
    11    (1)  He, she, or they have undergone legal consultation with independ-
    12  ent legal counsel regarding the terms of the gestational  agreement  and
    13  the potential legal consequences of the gestational carrier arrangement;
    14  and
    15    (2) He or she is an adult person who is not in a spousal relationship,
    16  or  adult  spouses together, or any two adults who are intimate partners
    17  together, except the spouse of the intended parent is not required to be
    18  a party to the gestational agreement and shall not have parental  rights
    19  or  obligations  to  the  child where the intended parent and his or her
    20  spouse:
    21    (i) are living separate and apart pursuant to a decree or judgment  of
    22  separation  or  pursuant to a written agreement of separation subscribed
    23  by the parties thereto and acknowledged or proved in the  form  required
    24  to entitle a deed to be recorded; or
    25    (ii)  have  been  living  separate  and apart for at least three years
    26  prior to execution of the gestational agreement.
    27    § 581-405. Requirements of gestational agreement.  (a)  A  gestational
    28  agreement  shall  be  deemed  to have satisfied the requirements of this
    29  article and be enforceable if it meets the following requirements:
    30    (1) It shall be in a signed record verified by:
    31    i. the intended parents, and
    32    ii. the gestational carrier, and  the  gestational  carrier's  spouse,
    33  unless;
    34    A.  the  gestational  carrier and the gestational carrier's spouse are
    35  living separate and apart pursuant to a decree or judgment of separation
    36  or pursuant to a written  agreement  of  separation  subscribed  by  the
    37  parties thereto and acknowledged or proved in the form required to enti-
    38  tle a deed to be recorded; or
    39    B.  have been living separate and apart for at least three years prior
    40  to execution of the gestational agreement; and
    41    (2) It shall be executed prior to the embryo transfer; and
    42    (3) It shall be executed by a gestational carrier meeting  the  eligi-
    43  bility  requirements  of subdivision (a) of section 581-404 of this part
    44  and by the gestational carrier's spouse, unless the  gestational  carri-
    45  er's  spouse's  signature  is not required as set forth in this section;
    46  and
    47    (4) It shall be executed by intended parents meeting  the  eligibility
    48  requirements of subdivision (b) of section 581-404 of this part; and
    49    (5)  The  gestational  carrier and the gestational carrier's spouse if
    50  applicable and the intended parents shall have been represented by sepa-
    51  rate, independent counsel in  all  matters  concerning  the  gestational
    52  agreement; and
    53    (6)  If  the gestational agreement provides for the payment of compen-
    54  sation to the gestational carrier,  the  compensation  shall  have  been
    55  placed  in  escrow  with an independent escrow agent prior to the gesta-
    56  tional carrier's  commencement  of  any  medical  procedure  other  than

        A. 1071                            10
     1  medical  evaluations  necessary  to  determine the gestational carrier's
     2  eligibility; and
     3    (7) The agreement must include information disclosing how the intended
     4  parents  will cover the medical expenses of the surrogate and the child.
     5  If health care coverage is used  to  cover  the  medical  expenses,  the
     6  disclosure  shall  include a review of the health care policy provisions
     7  related to coverage for  surrogate  pregnancy,  including  any  possible
     8  liability  of the surrogate, third-party liability liens or other insur-
     9  ance coverage, and any notice requirements that could affect coverage or
    10  liability of the surrogate.
    11    (8) The gestational agreement must include the following terms:
    12    (i) As to  the  gestational  carrier  and  the  gestational  carrier's
    13  spouse, if any:
    14    (A)  the agreement of the gestational carrier to undergo embryo trans-
    15  fer and attempt to carry and give birth to the child; and
    16    (B) the agreement of  the  gestational  carrier  and  the  gestational
    17  carrier's spouse, if any, to surrender custody of all resulting children
    18  to the intended parent immediately upon the birth; and
    19    (C)  the right of the gestational carrier to utilize the services of a
    20  health care practitioner  of  the  gestational  carrier's  choosing,  to
    21  provide her care during the pregnancy; and
    22    (ii) As to the intended parent:
    23    (A)  the  agreement  to accept custody of all resulting children imme-
    24  diately upon birth regardless of number, gender, or mental  or  physical
    25  condition; and
    26    (B) the agreement to assume sole responsibility for the support of the
    27  child immediately upon the child's birth; and
    28    (C)  the  agreement  that  the  rights and obligations of the intended
    29  parent under the gestational agreement are not assignable.
    30    § 581-406. Termination of gestational agreement. After  the  execution
    31  of  a  gestational  agreement but before the gestational carrier becomes
    32  pregnant by means of assisted reproduction, the gestational carrier, the
    33  gestational carrier's spouse, if any, or any intended parent may  termi-
    34  nate  the  gestational  agreement  by  giving notice of termination in a
    35  record to all other parties. Upon proper termination of the  gestational
    36  agreement  the  parties are released from all obligations recited in the
    37  agreement except that the intended parent remains  responsible  for  all
    38  expenses  that  are  reimbursable  under  the  agreement which have been
    39  incurred by the gestational carrier through  the  date  of  termination.
    40  Unless  the  agreement  provides  otherwise,  the gestational carrier is
    41  entitled to keep all payments she has received and obtain  all  payments
    42  to  which  the  gestational  carrier  is entitled. Neither a prospective
    43  gestational carrier nor the gestational carrier's  spouse,  if  any,  is
    44  liable to the intended parent for terminating a gestational agreement as
    45  provided in this section.
    46    § 581-407. Gestational   agreement:   effect   of  subsequent  spousal
    47  relationship. After the execution of a gestational agreement under  this
    48  article,  the subsequent spousal relationship of the gestational carrier
    49  does not affect the validity of a gestational agreement, the gestational
    50  carrier's spouse's consent to the agreement shall not be  required,  and
    51  the gestational carrier's spouse shall not be the presumed parent of the
    52  resulting child.
    53    § 581-408. Failure  to  obtain  a  judgment  of  parentage.  Where  an
    54  intended parent or the gestational carrier fails to obtain a judgment of
    55  parentage pursuant to section 581-203 of this  article,  either  because
    56  the gestational agreement does not meet the requirements of this article

        A. 1071                            11
     1  or  there was no gestational agreement, the parentage of a child will be
     2  determined based on the best interests of the child taking into  account
     3  genetics  and the intent of the parties. An intended parent's absence of
     4  genetic  connection  to the child is not a sufficient basis to deny that
     5  individual a judgment of legal parentage.
     6    § 581-409. Dispute as to gestational agreement.  (a) Any dispute which
     7  is related to a gestational agreement other than disputes as to  parent-
     8  age  shall  be  resolved by the supreme court, which shall determine the
     9  respective rights and obligations  of  the  parties.  If  a  gestational
    10  agreement  does not meet the requirements of this article, except as set
    11  forth in subdivision (d) of section 581-203 of this article  the  agree-
    12  ment is not enforceable.
    13    (b)  Except  as  expressly  provided in the gestational agreement, the
    14  intended parent and the gestational carrier shall  be  entitled  to  all
    15  remedies available at law or equity in any dispute related to the gesta-
    16  tional agreement.
    17    (c)  There  shall  be  no  specific performance remedy available for a
    18  breach by the gestational carrier of a gestational agreement  term  that
    19  requires  the  gestational carrier to be impregnated or to terminate the
    20  pregnancy or to reduce the number of fetuses or embryos the  gestational
    21  carrier is carrying.
    22    § 581-410. Inspection of records.  The proceedings, records, and iden-
    23  tities  of  the individual parties to a gestational agreement under this
    24  article shall be sealed except upon the petition of the parties  to  the
    25  gestational  agreement  or the child born as a result of the gestational
    26  carrier arrangement.
    27    § 581-411. Exclusive, continuing jurisdiction.  Subject to the  juris-
    28  dictional  standards  of  section  seventy-six of the domestic relations
    29  law, the court conducting a proceeding under this article has exclusive,
    30  continuing jurisdiction of all matters arising out  of  the  gestational
    31  agreement until a child born to the gestational carrier during the peri-
    32  od governed by the agreement attains the age of one hundred eighty days.
    33                                   PART 5
    34                 PAYMENT TO DONORS AND GESTATIONAL CARRIERS
    35  Section 581-501. Reimbursement.
    36          581-502. Compensation.
    37    §  581-501.  Reimbursement.   (a) A donor who has entered into a valid
    38  agreement to be a donor, may  receive  reimbursement  from  an  intended
    39  parent  for  economic  losses  incurred  in connection with the donation
    40  which result from the retrieval or storage of gametes or embryos.
    41    (b) Premiums paid  for  insurance  against  economic  losses  directly
    42  resulting  from  the  retrieval  or  storage  of  gametes or embryos for
    43  donation may be reimbursed.
    44    § 581-502. Compensation.  (a) Compensation may be paid to a  donor  or
    45  gestational  carrier based on services rendered, expenses and or medical
    46  risks that have been or will be incurred, time, and inconvenience. Under
    47  no circumstances may compensation be paid to purchase gametes or embryos
    48  or to pay for the relinquishment of a parental interest in a child.
    49    (b) The compensation, if any, paid to a donor or  gestational  carrier
    50  must be reasonable and negotiated in good faith between the parties, and
    51  said  payments to a gestational carrier shall not exceed the duration of
    52  the pregnancy and recuperative period of up to  eight  weeks  after  the
    53  birth of the child.
    54    (c)  Compensation may not be conditioned upon the purported quality or
    55  genome-related traits of the gametes or embryos.

        A. 1071                            12
     1    (d) Compensation may not be conditioned on actual genotypic or  pheno-
     2  typic characteristics of the donor or of the child.
     3                                   PART 6
     4                          MISCELLANEOUS PROVISIONS
     5  Section 581-601. Remedial.
     6          581-602. Severability.
     7          581-603. Parent  under section seventy of the domestic relations
     8                     law.
     9          581-604. Interpretation.
    10    § 581-601. Remedial.   This legislation is hereby  declared  to  be  a
    11  remedial  statute and is to be construed liberally to secure the benefi-
    12  cial interests and purposes thereof for the best interests of the child.
    13    § 581-602. Severability.  The invalidation of any part of this  legis-
    14  lation  by  a  court  of  competent jurisdiction shall not result in the
    15  invalidation of any other part.
    16    § 581-603. Parent under section seventy of the domestic relations law.
    17  The term "parent" in section seventy of the domestic relations law shall
    18  include a person established to be a parent under this  article  or  any
    19  other relevant law.
    20    § 581-604. Interpretation.  Unless  the  context  indicates otherwise,
    21  words importing the singular  include  and  apply  to  several  persons,
    22  parties, or things; words importing the plural include the singular.
    23    § 2. Section 73 of the domestic relations law is REPEALED.
    24    § 3. Article 8 of the domestic relations law is REPEALED.
    25    § 4. This act shall take effect on the one hundred twentieth day after
    26  it  shall have become a law. Effective immediately, the addition, amend-
    27  ment and/or repeal of any rule or regulation necessary for the implemen-
    28  tation of this act on its effective date are authorized to be made on or
    29  before such date.
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