Bill Text: NY S06386 | 2021-2022 | General Assembly | Amended
Bill Title: Relates to the requirements of surrogacy programs and criteria for surrogacy arrangements.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2022-05-28 - PRINT NUMBER 6386B [S06386 Detail]
Download: New_York-2021-S06386-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 6386--B 2021-2022 Regular Sessions IN SENATE April 26, 2021 ___________ Introduced by Sen. HOYLMAN -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families -- recommitted to the Committee on Judiciary in accordance with Senate Rule 6, sec. 8 -- 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, the general business law and the domestic relations law, in relation to surrogacy programs and arrange- ments The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 581-102 of the family court act, as added by 2 section 1 of part L of chapter 56 of the laws of 2020, is amended to 3 read as follows: 4 § 581-102. 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) "Child" means a born individual of any age whose parentage may be 13 determined under this act or other law. 14 (c) "Compensation" means payment of any valuable consideration in 15 excess of reasonable medical and ancillary costs. 16 (d) "Donor" means an individual who does not intend to be a parent who 17 produces gametes and provides them to another person, other than the 18 individual's spouse, for use in assisted reproduction. The term does not 19 include a person who is a parent under part three of this article. Donor EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10517-07-2S. 6386--B 2 1 also includes an individual who had dispositional control of an embryo 2 or gametes who then transfers dispositional control and releases all 3 present and future parental and inheritance rights and obligations to a 4 resulting child. 5 (e) "Embryo" means a cell or group of cells containing a diploid 6 complement of chromosomes or group of such cells, not a gamete or 7 gametes, that has the potential to develop into a live born human being 8 if transferred into the body of a person under conditions in which 9 gestation may be reasonably expected to occur. 10 (f) "Embryo transfer" means all medical and laboratory procedures that 11 are necessary to effectuate the transfer of an embryo into the uterine 12 cavity. 13 (g) "Gamete" means a cell containing a haploid complement of DNA that 14 has the potential to form an embryo when combined with another gamete. 15 Sperm and eggs shall be considered gametes. A human gamete used or 16 intended for reproduction may not contain nuclear DNA that has been 17 deliberately altered, or nuclear DNA from one human combined with the 18 cytoplasm or cytoplasmic DNA of another human being. 19 (h) "Health care practitioner" means an individual licensed or certi- 20 fied under title eight of the education law, or a similar law of another 21 state or country, acting within his or her scope of practice. 22 (i) "Independent escrow agent" means someone other than the parties to 23 a surrogacy agreement and their attorneys. An independent escrow agent 24 can, but need not, be a surrogacy program, provided such surrogacy 25 program is owned [or managed] by an attorney licensed to practice law in 26 the state of New York. If such independent escrow agent is not an attor- 27 ney owned surrogacy program, it shall be [licensed,] bonded and insured. 28 [(i) "Surrogacy agreement" is an agreement between at least one29intended parent and a person acting as surrogate intended to result in a30live birth where the child will be the legal child of the intended31parents.] 32 (j) "In vitro fertilization" means the formation of a human embryo 33 outside the human body. 34 (k) "Intended parent" is an individual who manifests the intent to be 35 legally bound as the parent of a child resulting from assisted reprod- 36 uction or a surrogacy agreement, provided he or she meets the require- 37 ments of this article. 38 (l) "Parent" as used in this article means an individual with a 39 parent-child relationship created or recognized under this act or other 40 law. 41 (m) "Participant" is an individual who either provides a gamete that 42 is used in assisted reproduction, is an intended parent, is a person 43 acting as surrogate, or is the spouse of an intended parent or person 44 acting as surrogate. 45 (n) "Person acting as surrogate" means an adult person, not an 46 intended parent, who enters into a surrogacy agreement to bear a child 47 who will be the legal child of the intended parent or parents so long as 48 the person acting as surrogate has not provided the egg used to conceive 49 the resulting child. 50 [(k) "Health care practitioner" means an individual licensed or certi-51fied under title eight of the education law, or a similar law of another52state or country, acting within his or her scope of practice.53(l) "Intended parent" is an individual who manifests the intent to be54legally bound as the parent of a child resulting from assisted reprod-55uction or a surrogacy agreement provided he or she meets the require-56ments of this article.S. 6386--B 3 1(m) "In vitro fertilization" means the formation of a human embryo2outside the human body.3(n) "Parent" as used in this article means an individual with a4parent-child relationship created or recognized under this act or other5law.6(o) "Participant" is an individual who either: provides a gamete that7is used in assisted reproduction, is an intended parent, is a person8acting as surrogate, or is the spouse of an intended parent or person9acting as surrogate.10(p)] (o) "Record" means information inscribed in a tangible medium or 11 stored in an electronic or other medium that is retrievable in perceiva- 12 ble form. 13 [(q)] (p) "Retrieval" means the procurement of eggs or sperm from a 14 gamete provider. 15 [(r)] (q) "Spouse" means an individual married to another, or who has 16 a legal relationship entered into under the laws of the United States or 17 of any state, local or foreign jurisdiction, which is substantially 18 equivalent to a marriage, including a civil union or domestic partner- 19 ship. 20 [(s)] (r) "State" means a state of the United States, the District of 21 Columbia, Puerto Rico, the United States Virgin Islands, or any territo- 22 ry or insular possession subject to the jurisdiction of the United 23 States. 24 (s) "Surrogacy agreement" means an agreement between at least one 25 intended parent and a person acting as surrogate intended to result in a 26 live birth where the child will be the legal child of the intended 27 parents. 28 (t) "Transfer" means the placement of an embryo or gametes into the 29 body of a person with the intent to achieve pregnancy and live birth. 30 § 2. Section 581-202 of the family court act, as added by section 1 of 31 part L of chapter 56 of the laws of 2020, is amended to read as follows: 32 § 581-202. Proceeding for judgment of parentage of a child conceived 33 through assisted reproduction. (a) A proceeding for a judgment of 34 parentage with respect to a child conceived through assisted reprod- 35 uction may be commenced: 36 (1) if [the] an intended parent or child resides in New York state, in 37 the county where the intended parent resides any time after pregnancy is 38 achieved or in the county where the child was born or resides or in the 39 county where the birth is intended to occur; or 40 (2) if [the] neither an intended parent [and] nor the child [do not] 41 reside in New York state, up to ninety days after the birth of the child 42 in the county where the child was born. 43 (b) The petition for a judgment of parentage must be verified. 44 (c) Where [a petition includes the following truthful] the court finds 45 the following statements in the petition to be true, the court shall 46 adjudicate the intended parent or parents to be the parent or parents of 47 the child without the need for additional proceedings or documentation: 48 (1) a statement that an intended parent or child has been a resident 49 of the state for at least six months, or if an intended parent or child 50 is not a New York state resident, that the child [will be or was] is 51 intended to be born in [the] New York state or that the child was born 52 in the state within ninety days of filing; and 53 (2) a statement from the gestating intended parent that the gestating 54 intended parent became pregnant as a result of assisted reproduction; 55 andS. 6386--B 4 1 (3) in cases where there is a non-gestating intended parent, a state- 2 ment from the gestating intended parent and non-gestating intended 3 parent that the non-gestating intended parent consented to assisted 4 reproduction pursuant to section 581-304 of this article; and 5 (4) proof of any donor's donative intent. 6 The court may, in its discretion, dispense with testimony to establish 7 the truthfulness of the statements. 8 (d) The following shall be deemed sufficient proof of a donor's dona- 9 tive intent for purposes of this section: 10 (1) [in the case of an anonymous donor or] where gametes or embryos 11 have [previously] been [released] relinquished to a gamete or embryo 12 storage facility or were donated in the presence of a health care prac- 13 titioner, either: 14 (i) a statement or documentation from the gamete or embryo storage 15 facility or health care practitioner stating or demonstrating that the 16 donor or donors of such gametes or embryos [were anonymously donated or17had previously been released] relinquished all parental or proprietary 18 interest to them; [or] 19 (ii) a record from the gamete or embryo donor or donors evidencing 20 intent to relinquish all parental or proprietary interest in the gametes 21 or embryos; or 22 (iii) clear and convincing evidence that the gamete or embryo donor 23 intended to donate gametes or embryos anonymously or intended to release 24 such gametes or embryos to a gamete or embryo storage facility or health 25 care practitioner; [or] 26 (2) [in the case of a donation from a known donor, either: a.] where 27 the gametes or embryos were not relinquished to a gamete or embryo stor- 28 age facility or donated in the presence of a health care practitioner, 29 either: 30 (i) a record from the gamete or embryo donor acknowledging the 31 donation and confirming that the donor [has] or donors shall have no 32 parental or proprietary interest in the gametes or embryos. The record 33 shall be signed by the [gestating] intended parent or parents and the 34 gamete or embryo donor[. The record may be, but is not required to be,35signed] or donors: 36 [(i)] (A) before a notary public, or 37 [(ii)] (B) before two witnesses who are not the intended parents, or 38 [(iii)] (C) before a health care practitioner; or 39 [b.] (ii) clear and convincing evidence that the gamete or embryo 40 donor agreed, prior to conception, [with the gestating parent] that the 41 donor [has] or donors would have no parental or proprietary interest in 42 the gametes or embryos. 43 (3) This subdivision shall not apply where the person providing the 44 gametes or embryos is the spouse of the intended parent. 45 (e)[(1)] In the absence of evidence pursuant to [paragraph two of46this] subdivision (d) of this section, notice shall be given to the 47 donor at least twenty days prior to the date set for the proceeding to 48 determine the existence of donative intent by delivery of a copy of the 49 petition and notice pursuant to section three hundred eight of the civil 50 practice law and rules. If an intended parent or an intended parent's 51 spouse is not a petitioner, such notice shall also be given to such 52 person who shall be a necessary party. Upon a showing to the court, by 53 affidavit or otherwise, on or before the date of the proceeding or with- 54 in such further time as the court may allow, that personal service 55 cannot be effected at the [donor's] last known address or addresses of 56 the donor or donors, and/or the non-petitioning intended parent, if any,S. 6386--B 5 1 with reasonable effort, notice may be given, without prior court order 2 therefore, at least twenty days prior to the proceeding by registered or 3 certified mail directed to [the donor's] such last known address or 4 addresses. Notice by publication shall not be required to be given to 5 [a donor] anyone entitled to notice pursuant to the provisions of this 6 section. 7 [(2) Notwithstanding the above, where sperm is provided under the8supervision of a health care practitioner to someone other than the9sperm provider's intimate partner or spouse without a record of the10sperm provider's intent to parent notice is not required.] 11 (f) In cases not covered by subdivision (c) of this section, the court 12 shall adjudicate the parentage of the child consistent with part three 13 of this article. 14 (g) Where the requirements of subdivision (c) of this section are met 15 or where the court finds the intended parent or parents to be a parent 16 under subdivision [(e)] (f) of this section, the court shall issue a 17 judgment of parentage: 18 (1) declaring[, that] the intended parent or parents to be the legal 19 parent or parents of the child immediately upon the birth of the child[,20the intended parent or parents is or are the legal parent or parents of21the child]; and 22 (2) ordering the intended parent or parents to assume responsibility 23 for the maintenance and support of the child immediately upon the birth 24 of the child; and 25 (3) if there is a donor or donors, ordering that [the] any donor is 26 not a parent of the child; and 27 (4) ordering that: 28 (i) [Pursuant] The hospital birth registrar shall report the parentage 29 of the child on the record of live birth in conformity with the judgment 30 of parentage, if the judgment of parentage is issued before the birth of 31 the child; and 32 (ii) If a change to the child's birth certificate is necessitated by 33 the judgment of parentage, then pursuant to section two hundred fifty- 34 four of the judiciary law, the clerk of the court shall transmit to the 35 state commissioner of health, or for a person born in New York city, to 36 the commissioner of health of the city of New York, on a form prescribed 37 by the commissioner, a written notification of such entry together with 38 such other facts as may assist in identifying the birth record of the 39 person whose parentage was in issue and, if such person whose parentage 40 has been determined is under eighteen years of age, the clerk shall also 41 transmit forthwith to the registry operated by the department of social 42 services pursuant to section three hundred seventy-two-c of the social 43 services law a notification of such determination; and 44 [(ii)] (iii) Pursuant to section forty-one hundred thirty-eight of the 45 public health law and NYC Public Health Code section 207.05 that upon 46 receipt of a judgment of parentage the local registrar where a child is 47 born will report the parentage of the child to the appropriate depart- 48 ment of health in conformity with the court order. If an original birth 49 certificate has already been issued, the appropriate department of 50 health will amend the birth certificate in an expedited manner and seal 51 the previously issued birth certificate except that it may be rendered 52 accessible to the child at eighteen years of age or the legal parent or 53 parents; and 54 (5) if the judgment of parentage is issued prior to the birth of the 55 child, ordering the petitioner or petitioners, within seven days of such 56 birth, to provide the court with notification thereof, together withS. 6386--B 6 1 such other facts as may assist in identifying the birth record of the 2 child whose parentage was in issue. Such notification shall be in writ- 3 ing on a form to be prescribed by the chief administrator of the courts. 4 The court shall thereafter issue an amended judgment of parentage that 5 includes the child's name as it appears on the child's birth certificate 6 and the child's date of birth. 7 § 3. Section 581-203 of the family court act, as added by section 1 of 8 part L of chapter 56 of the laws of 2020, is amended to read as follows: 9 § 581-203. Proceeding for judgment of parentage of a child conceived 10 pursuant to a surrogacy agreement. (a) The proceeding may be commenced 11 (1) in any county where an intended parent resided any time after the 12 surrogacy agreement was executed; (2) in the county where the child was 13 born or resides or in the county where the birth is intended to occur; 14 [or] (3) in the county where the surrogate resided any time after the 15 surrogacy agreement was executed; or (4) in the county where the surro- 16 gacy program, if any, has its principal place of business, if that is 17 within the state of New York. 18 (b) The proceeding may be commenced at any time after [the surrogacy19agreement has been executed] pregnancy is achieved and the person acting 20 as surrogate, the spouse of the person acting as surrogate, if any, 21 donors for whom there is not proof of donative intent as set forth in 22 subdivision (d) of section 581-202 of this part, and all intended 23 parents are necessary parties. The service provisions of subdivision 24 (e) of section 581-202 of this title shall be applicable to donors enti- 25 tled to notice pursuant to this provision. 26 (c) The petition for a judgment of parentage must be verified and 27 include the following: 28 (1) a statement that the person acting as surrogate or at least one 29 [of the] intended [parents] parent has been a resident of the state for 30 at least six months at the time the surrogacy agreement was executed; 31 and 32 (2) a certification from the attorney representing the intended parent 33 or parents and the attorney representing the person acting as surrogate 34 and the spouse of the person acting as surrogate, if applicable, that 35 the requirements of part four of this article have been met; and 36 (3) a statement from all parties to the surrogacy agreement that they 37 knowingly and voluntarily entered into the surrogacy agreement and that 38 the parties are jointly requesting the judgment of parentage; and 39 (4) a copy of the executed surrogacy agreement. 40 (d) Where the court finds the statements required by subdivision (c) 41 of this section to be true, the court shall issue a judgment of parent- 42 age, without additional proceedings or documentation: 43 (1) declaring, that upon the birth of the child born during the term 44 of the surrogacy agreement, the intended parent or parents are the only 45 legal parent or parents of the child; 46 (2) declaring, that upon the birth of the child born during the term 47 of the surrogacy agreement, the person acting as surrogate, and the 48 spouse of the person acting as surrogate, if [any] applicable, is not 49 [the] a legal parent of the child; 50 (3) declaring that upon the birth of the child born during the term of 51 the surrogacy agreement, [the donors] any donor, if [any] applicable, 52 [are] is not [the parents] a parent of the child; 53 (4) ordering the person acting as surrogate and the spouse of the 54 person acting as surrogate, if any, to transfer the child to the 55 intended parent or parents if this has not already occurred;S. 6386--B 7 1 (5) ordering the intended parent or parents to assume responsibility 2 for the maintenance and support of the child immediately upon the birth 3 of the child; and 4 (6) ordering that: 5 (i) [Pursuant] The hospital birth registrar shall report the parentage 6 of the child on the record of live birth in conformity with the judgment 7 of parentage, if the judgment of parentage is issued before the birth of 8 the child; and 9 (ii) If a change to the child's birth certificate is necessitated by 10 the judgment of parentage, then pursuant to section two hundred fifty- 11 four of the judiciary law, the clerk of the court shall transmit to the 12 state commissioner of health, or for a person born in New York city, to 13 the commissioner of health of the city of New York, on a form prescribed 14 by the commissioner, a written notification of such entry together with 15 such other facts as may assist in identifying the birth record of the 16 person whose parentage was in issue and, if the person whose parentage 17 has been determined is under eighteen years of age, the clerk shall also 18 transmit to the registry operated by the department of social services 19 pursuant to section three hundred seventy-two-c of the social services 20 law a notification of the determination; and 21 [(ii)] (iii) Pursuant to section forty-one hundred thirty-eight of the 22 public health law and NYC Public Health Code section 207.05 that upon 23 receipt of a judgement of parentage the local registrar where a child is 24 born will report the parentage of the child to the appropriate depart- 25 ment of health in conformity with the court order. If an original birth 26 certificate has already been issued, the appropriate department of 27 health will amend the birth certificate in an expedited manner and seal 28 the previously issued birth certificate except that it may be rendered 29 accessible to the child at eighteen years of age or the legal parent or 30 parents; and 31 (7) if the judgment of parentage is issued prior to the birth of the 32 child, ordering the petitioner or petitioners, within seven days of such 33 birth, to provide the court with notification thereof, together with 34 such other facts as may assist in identifying the birth record of the 35 child whose parentage was in issue. Such notification shall be in writ- 36 ing on a form to be prescribed by the chief administrator of the courts. 37 The court shall thereafter issue an amended judgment of parentage that 38 includes the child's name as it appears on the child's birth certificate 39 and the child's date of birth. 40 (e) In the event the certification required by paragraph two of subdi- 41 vision (c) of this section cannot be made because of a technical or 42 non-material deviation from the requirements of this article; the court 43 may nevertheless enforce the agreement and issue a judgment of parentage 44 if the court determines the agreement is in substantial compliance with 45 the requirements of this article. In the event that any other require- 46 ments of subdivision (c) of this section are not met, the court shall 47 determine parentage according to part four of this article. 48 § 4. Section 581-205 of the family court act, as added by section 1 of 49 part L of chapter 56 of the laws of 2020, is amended to read as follows: 50 § 581-205. Inspection of records. Court records relating to 51 proceedings under this article shall be sealed, provided, however, that 52 the office of temporary and disability assistance, a child support unit 53 of a social services district or a child support agency of another state 54 providing child support services pursuant to title IV-d of the federal 55 social security act, when a party to a related support proceeding and to 56 the extent necessary to provide child support services or for the admin-S. 6386--B 8 1 istration of the program pursuant to title IV-d of the federal social 2 security act, may obtain a copy of a judgment of parentage. The parties 3 to the proceeding and the child shall have the right to inspect and make 4 copies of the entire court record, including, but not limited to, the 5 name of the person acting as surrogate and any known [donors] donor. The 6 county clerk or the clerk of the surrogate's or family court shall not 7 display the surname of the child or parties in any document, index, 8 minutes or other record available to the public. 9 § 5. Subdivision (a) of section 581-206 of the family court act, as 10 added by section 1 of part L of chapter 56 of the laws of 2020, is 11 amended to read as follows: 12 (a) Proceedings pursuant to this article may be instituted in [the] 13 New York state supreme [or] court, family court or surrogates court. 14 § 6. The family court act is amended by adding a new section 581-207 15 to read as follows: 16 § 581-207. Certified copy of judgment of parentage. Upon issuing a 17 judgment of parentage pursuant to section 581-202 or 581-203 of this 18 article, the issuing court shall provide a certified copy of such judg- 19 ment to the intended parent or parents. 20 § 7. Subdivision (b) of section 581-303 of the family court act, as 21 added by section 1 of part L of chapter 56 of the laws of 2020, is 22 amended to read as follows: 23 (b) The court shall issue a judgment of parentage pursuant to this 24 article upon application by any [participant] person authorized to file 25 a petition pursuant to subdivision (c) of section 581-201 of this arti- 26 cle. 27 § 8. Paragraph 3 of subdivision (a) and subdivision (d) of section 28 581-306 of the family court act, as added by section 1 of part L of 29 chapter 56 of the laws of 2020, are amended to read as follows: 30 (3) where the intended parents are married, transfer of legal rights 31 and dispositional control occurs only upon: (i) living separate and 32 apart pursuant to a decree or judgment of separation or pursuant to a 33 written agreement of separation subscribed by the parties thereto and 34 acknowledged or proved in the form required to entitle a deed to be 35 recorded; or (ii) living separate and apart at least three years prior 36 to execution of the agreement; or (iii) divorce; or (iv) death. 37 (d) An embryo disposition agreement [or advance directive] that is not 38 in compliance with subdivision (a) of this section may still be found to 39 be enforceable by the court after balancing the respective interests of 40 the parties except that the intended parent who divested him or herself 41 of legal rights and dispositional control may not be declared to be a 42 parent for any purpose without his or her consent. The intended parent 43 awarded legal rights and dispositional control of the embryos shall, in 44 this instance, be declared to be the only parent of the child. 45 § 9. Section 581-402 of the family court act, as added by section 1 of 46 part L of chapter 56 of the laws of 2020, is amended to read as follows: 47 § 581-402. Eligibility to enter surrogacy agreement. (a) A person 48 acting as surrogate shall be eligible to enter into an enforceable 49 surrogacy agreement under this article if the person acting as surrogate 50 has met the following requirements at the time the surrogacy agreement 51 is executed: 52 (1) the person acting as surrogate is at least twenty-one years of 53 age; 54 (2) the person acting as surrogate: (i) is a United States citizen or 55 a lawful permanent resident, and[, where at least one intended parent is56not] (ii) has been a resident of New York state for six months[, was] ifS. 6386--B 9 1 neither intended parent has been a resident of New York state for at 2 least six months; 3 (3) the person acting as surrogate has not provided the egg used to 4 conceive the resulting child; 5 (4) the person acting as surrogate has completed a medical evaluation 6 with a health care practitioner relating to the anticipated pregnancy. 7 Such medical evaluation shall include a screening of the medical history 8 of the potential surrogate including known health conditions that may 9 pose risks to the potential surrogate or embryo during pregnancy; 10 (5) the person acting as surrogate has given informed consent for the 11 surrogacy arrangement after the licensed health care practitioner inform 12 them of the medical risks of surrogacy including the possibility of 13 multiple births, risk of medications taken for the surrogacy, risk of 14 pregnancy complications, psychological and psychosocial risks, and 15 impacts on their personal lives; 16 (6) the person acting as surrogate, and the spouse of the person 17 acting as surrogate, if applicable, have been represented throughout the 18 contractual process and shall be represented throughout the duration of 19 the [contract and its execution] surrogacy arrangement by independent 20 legal counsel of their own choosing who is licensed to practice law in 21 the state of New York which shall be paid for by the intended parent or 22 parents, except that a person acting as surrogate who is receiving no 23 compensation may waive the right to have the intended parent or parents 24 pay the fee for such legal counsel. Where the [intended parent or25parents are paying for the] independent legal counsel of the person 26 acting as surrogate, and the spouse of the person acting as surrogate, 27 if applicable, is paid by the intended parent or parents, a separate 28 retainer agreement shall be prepared clearly stating that such legal 29 counsel will only represent the person acting as surrogate and the 30 spouse of the person acting as surrogate, if applicable, in all matters 31 pertaining to the surrogacy [agreement] arrangement, that such legal 32 counsel will not offer legal advice to any other parties to the surroga- 33 cy agreement, and that the attorney-client relationship lies with the 34 person acting as surrogate and the spouse of the person acting as surro- 35 gate, if applicable. The intended parent or parents shall not be 36 required to pay the legal fees for the person acting as surrogate, and 37 the spouse of the person acting as surrogate, if applicable, in 38 connection with a litigated dispute between the parties unless otherwise 39 ordered by an arbiter or court of competent jurisdiction; 40 (7) the person acting as surrogate has or the surrogacy agreement 41 stipulates that the person acting as surrogate will obtain [a comprehen-42sive] health insurance [policy] coverage that takes effect prior to 43 taking any medication or commencing treatment to further embryo transfer 44 that covers [preconception care, prenatal care, major medical treat-45ments, hospitalization, and behavioral health care, and the comprehen-46sive policy has a term that extends throughout the duration of the47expected pregnancy and for twelve months after the birth of the child, a48stillbirth, a miscarriage resulting in termination of pregnancy, or49termination of the pregnancy; the policy shall be paid for, whether50directly or through reimbursement or other means, by the intended parent51or parents on behalf of the person acting as surrogate pursuant to the52surrogacy agreement, except that a person acting as surrogate who is53receiving no compensation may waive the right to have the intended54parent or parents pay for the health insurance policy. The intended55parent or parents shall also pay for or reimburse the person acting as56surrogate for all co-payments, deductibles and any other out-of-pocketS. 6386--B 10 1medical costs associated with preconception, pregnancy, childbirth, or2postnatal care, that accrue through twelve months after the birth of the3child, a stillbirth, a miscarriage, or termination of the pregnancy. A4person acting as surrogate who is receiving no compensation may waive5the right to have the intended parent or parents make such payments or6reimbursements]: 7 (i) preconception medical expenses. The surrogacy agreement shall 8 state that the intended parent or parents will be responsible for all 9 medical costs of the person acting as surrogate associated with their 10 pre-conception care including but not limited to medical and psycholog- 11 ical screenings, medications, embryo transfer procedure, monitoring 12 prior and subsequent to the embryo transfer procedure and any compli- 13 cations associated with the foregoing. The intended parent or parents 14 shall be responsible for the costs of any such complications either 15 through insurance or by placing and maintaining sufficient funds in 16 escrow to cover such expenses. If the surrogacy agreement is terminated 17 after the person acting as surrogate has taken any medication or 18 commenced treatment to further embryo transfer but before pregnancy is 19 achieved, such funds shall remain in escrow for a minimum period of six 20 months from the date the surrogacy agreement is terminated; 21 (ii) medical expenses associated with pregnancy. The person acting as 22 surrogate has, or the surrogacy agreement shall stipulate that the 23 person acting as surrogate will obtain, comprehensive health insurance 24 coverage, via one or more insurance policies, prior to or immediately 25 upon confirmation of pregnancy that covers prenatal care, childbirth and 26 postnatal care, and that such comprehensive coverage must be in place 27 throughout the duration of the pregnancy and for twelve months after the 28 birth of the child, a stillbirth, a miscarriage resulting in termination 29 of the pregnancy, or termination of the pregnancy. The policy shall be 30 paid for, whether directly or through reimbursement or other means, by 31 the intended parent or parents on behalf of the person acting as surro- 32 gate to the extent that there is an additional cost to the person acting 33 as surrogate for such health insurance coverage. The intended parent or 34 parents shall also pay for or reimburse the person acting as surrogate 35 for all co-payments, deductibles and any other out-of-pocket medical 36 costs associated with pregnancy, childbirth, or postnatal care, that 37 accrue through twelve months after the birth of the child, a stillbirth, 38 a miscarriage resulting in termination of the pregnancy, or termination 39 of the pregnancy; and 40 (iii) uncompensated surrogacy arrangements. A person acting as surro- 41 gate who is receiving no compensation may waive the right to have the 42 intended parent or parents make the payments set forth in this section; 43 (8) the surrogacy agreement must provide that the intended parent or 44 parents shall [procure and] pay for a life insurance, contractual 45 liability or accidental death insurance policy for the person acting as 46 surrogate that takes effect prior to taking any medication or the 47 commencement of medical procedures to further embryo transfer, provides 48 a minimum benefit of seven hundred fifty thousand dollars or the maximum 49 amount the person acting as surrogate qualifies for if it is less than 50 seven hundred fifty thousand dollars, and [has a term that extends] such 51 coverage shall extend throughout the duration of the expected pregnancy 52 and for twelve months after the birth of the child, a stillbirth, a 53 miscarriage resulting in termination of pregnancy, or termination of the 54 pregnancy, with a beneficiary or beneficiaries of [their] the person 55 acting as surrogate's choosing. The policy shall be paid for, whether 56 directly or through reimbursement or other means, by the intended parentS. 6386--B 11 1 or parents on behalf of the person acting as surrogate pursuant to the 2 surrogacy agreement, except that a person acting as surrogate who is 3 receiving no compensation may waive the right to have the intended 4 parent or parents pay for the life insurance, contractual liability or 5 accidental death insurance policy; and 6 (9) the person acting as surrogate meets all other requirements deemed 7 appropriate by the commissioner of health regarding the health of the 8 prospective surrogate. 9 (b) The intended parent or parents shall be eligible to enter into an 10 enforceable surrogacy agreement under this article if he, she or they 11 have met the following requirements at the time the surrogacy agreement 12 was executed: 13 (1) at least one intended parent is: 14 (i) a United States citizen or a lawful permanent resident; and 15 [was] (ii) has been a resident of New York state for at least six 16 months if the person acting as surrogate has not been a resident of the 17 state of New York for at least six months; 18 (2) [the intended parent or parents has] they have been represented 19 throughout the contractual process and shall be represented throughout 20 the duration of the [contract and its execution] surrogacy arrangement 21 by independent legal counsel of his, her or their own choosing who is 22 licensed to practice law in the state of New York; and 23 (3) [he or she is] they are an adult person who is not in a spousal 24 relationship, or [adult] any adults who are spouses together, or any 25 [two] adults who are intimate partners together, except an adult in a 26 spousal relationship is eligible to enter into an enforceable surrogacy 27 agreement without [his or her] their spouse if: 28 (i) they are living separate and apart pursuant to a decree or judg- 29 ment of separation or pursuant to a written agreement of separation 30 subscribed by the parties thereto and acknowledged or proved in the form 31 required to entitle a deed to be recorded; or 32 (ii) they have been living separate and apart for at least three years 33 prior to execution of the surrogacy agreement. 34 (c) where the spouse of an intended parent is not a required party to 35 the agreement, the spouse is not an intended parent and shall not have 36 rights or obligations to the child. 37 § 10. Section 581-403 of the family court act, as added by section 1 38 of part L of chapter 56 of the laws of 2020, is amended to read as 39 follows: 40 § 581-403. Requirements of surrogacy agreement. A surrogacy agreement 41 shall be deemed to have satisfied the requirements of this article and 42 be enforceable if it meets the following requirements: 43 (a) it shall be in a [signed] record [verified or executed before] 44 with each signature either notarized or witnessed by two [non-party45witnesses] non-parties and signed by: 46 (1) each intended parent, and 47 (2) the person acting as surrogate, and the spouse of the person 48 acting as surrogate, if [any] applicable, unless: 49 (i) [the person acting as surrogate and the spouse of the person50acting as surrogate] they are living separate and apart pursuant to a 51 decree or judgment of separation or pursuant to a written agreement of 52 separation subscribed by the parties thereto and acknowledged or proved 53 in the form required to entitle a deed to be recorded; or 54 (ii) they have been living separate and apart for at least three years 55 prior to execution of the surrogacy agreement;S. 6386--B 12 1 (b) it shall be executed prior to the person acting as surrogate 2 taking any medication or the commencement of medical procedures in the 3 furtherance of embryo transfer, provided the person acting as surrogate 4 shall have provided informed consent to undergo such medical treatment 5 or medical procedures prior to executing the agreement; 6 (c) it shall be executed by a person acting as surrogate meeting the 7 eligibility requirements of subdivision (a) of section 581-402 of this 8 part and by the spouse of the person acting as surrogate, if applicable, 9 unless the signature of the spouse of the person acting as surrogate is 10 not required as set forth in this section; 11 (d) it shall be executed by intended parent or parents who met the 12 eligibility requirements of subdivision (b) of section 581-402 of this 13 part; 14 (e) the person acting as surrogate and the spouse of the person acting 15 as surrogate, if applicable, and the intended parent or parents shall 16 have been represented throughout the contractual process and the surro- 17 gacy agreement states that they shall be represented throughout the 18 duration of the [contract and its execution] surrogacy arrangement by 19 separate, independent legal counsel of their own choosing; 20 (f) if the surrogacy agreement provides for the payment of compen- 21 sation to the person acting as surrogate, the funds for base compen- 22 sation and reasonable anticipated additional expenses shall have been 23 placed in escrow with an independent escrow agent, who consents to the 24 jurisdiction of New York courts for all proceedings related to the 25 enforcement of the escrow agreement, prior to the person acting as 26 surrogate commencing [with] any medical procedure other than medical 27 evaluations necessary to determine the person acting as surrogate's 28 eligibility; 29 (g) the surrogacy agreement must include information disclosing how 30 the intended parent or parents will cover the medical expenses of the 31 person acting as surrogate and the child. The surrogacy agreement shall 32 specify the amount that the intended parent or parents shall place in 33 escrow to cover such reasonable anticipated costs including precon- 34 ception medical care and extending throughout the duration of the 35 expected pregnancy, and for twelve months after the birth of the child, 36 a stillbirth, a miscarriage resulting in the termination of the pregnan- 37 cy, or termination of the pregnancy or until the surrogacy agreement is 38 terminated if pregnancy is not achieved. If it is anticipated that 39 comprehensive health care coverage [is] will be used to cover the 40 medical expenses for the person acting as surrogate, the [disclosure41shall include a review and summary of the] health care policy provisions 42 related to coverage and exclusions for the person acting as [surro-43gate's] surrogate shall be reviewed and summarized in relation to the 44 anticipated pregnancy prior to such policy being used to cover any of 45 the person acting as surrogate's medical expenses incurred pursuant to 46 the surrogacy arrangement; and 47 (h) [it] the surrogacy agreement shall include the following informa- 48 tion: 49 (1) the date, city and state where the surrogacy agreement was 50 executed; 51 (2) the first and last names of and contact information for the 52 intended parent or parents and of the person acting as surrogate; 53 (3) the first and last names of and contact information for the 54 persons from which the gametes originated, if known. The agreement shall 55 specify whether the gametes provided were eggs, sperm, or embryos;S. 6386--B 13 1 (4) the name of and contact information for the licensed and regis- 2 tered surrogacy program handling the surrogacy [agreement] arrangement, 3 if any; and 4 (5) the name of and contact information for the attorney representing 5 the person acting as surrogate, and the spouse of the person acting as 6 surrogate, if applicable, and the attorney representing the intended 7 parent or parents; and 8 (i) the surrogacy agreement must comply with all of the following 9 terms: 10 (1) As to the person acting as surrogate and the spouse of the person 11 acting as surrogate, if applicable: 12 (i) the person acting as surrogate agrees to undergo embryo transfer 13 and attempt to carry and give birth to the child; 14 (ii) the person acting as surrogate and the spouse of the person 15 acting as surrogate, if applicable, agree to surrender custody of all 16 resulting children to the intended parent or parents immediately upon 17 birth; 18 (iii) the surrogacy agreement shall include the name of the attorney 19 representing the person acting as surrogate and, if applicable, the 20 spouse of the person acting as surrogate; 21 (iv) the surrogacy agreement must include an acknowledgement by the 22 person acting as surrogate and the spouse of the person acting as surro- 23 gate, if applicable, that they have received a copy of the Surrogate's 24 Bill of Rights from their legal counsel; 25 (v) the surrogacy agreement must permit the person acting as surrogate 26 to make all health and welfare decisions regarding themselves and their 27 pregnancy including but not limited to, whether to consent to a cesarean 28 section or multiple embryo transfer, and notwithstanding any other 29 provisions in this chapter, provisions in the agreement to the contrary 30 are void and unenforceable. This article does not diminish the right of 31 the person acting as surrogate to terminate or continue a pregnancy; 32 (vi) the surrogacy agreement shall permit the person acting as a 33 surrogate to utilize the services of a health care practitioner of the 34 person's choosing; 35 (vii) the surrogacy agreement shall not limit the right of the person 36 acting as surrogate to terminate or continue the pregnancy or reduce or 37 retain the number of fetuses or embryos the person is carrying; 38 (viii) the surrogacy agreement shall provide for the right of the 39 person acting as surrogate, upon request, to obtain counseling to 40 address issues resulting from the person's participation in the surroga- 41 cy [agreement] arrangement, including, but not limited to, counseling 42 following delivery. The cost of that counseling shall be paid by the 43 intended parent or parents; 44 (ix) the surrogacy agreement must include a notice that any compen- 45 sation received pursuant to the agreement may affect the eligibility of 46 the person acting as [surrogate's ability] surrogate and the person 47 acting as surrogate's spouse, if applicable, for public benefits or the 48 amount of such benefits; and 49 (x) the surrogacy agreement shall provide that, upon the person acting 50 as surrogate's request, the intended parent or parents [have or will51procure and] shall pay for a disability insurance policy [for] or other 52 insurance policy to cover any lost wages incurred by the person acting 53 as surrogate [; the person acting as surrogate may designate the benefi-54ciary of the person's choosing] in connection with their participation 55 in the surrogacy arrangement. In the event that such insurance coverage 56 is not available, the intended parent or parents shall reimburse theS. 6386--B 14 1 person acting as surrogate for any lost wages the person acting as 2 surrogate incurs in connection with their participation in the surrogacy 3 arrangement. 4 (2) As to the intended parent or parents: 5 (i) the intended parent or parents [agree to] shall accept custody of 6 all resulting children immediately upon birth regardless of number, 7 gender, or mental or physical condition and regardless of whether the 8 [intended] embryo or embryos was or were transferred due to a laboratory 9 error without diminishing the rights, if any, of anyone claiming to have 10 a superior parental interest in the child; and 11 (ii) the intended parent or parents [agree to] shall assume responsi- 12 bility for the support of all resulting children immediately upon birth; 13 and 14 (iii) the surrogacy agreement shall include the name of the attorney 15 representing the intended parent or parents; and 16 (iv) the surrogacy agreement shall provide that the rights and obli- 17 gations of the intended parent or parents under the surrogacy agreement 18 are not assignable; and 19 (v) the intended parent or parents [agree to] shall execute a will, 20 prior to the embryo transfer, designating a guardian for all resulting 21 children and authorizing their executor to perform the [intended22parent's or parents'] obligations of the intended parent or parents 23 pursuant to the surrogacy agreement, including filing a proceeding for a 24 judgment of parentage for a child conceived pursuant to a surrogacy 25 agreement pursuant to section 581-203 of this article if there is no 26 intended parent living. 27 § 11. Subdivision (b) of section 581-404 of the family court act, as 28 added by section 1 of part L of chapter 56 of the laws of 2020, is 29 amended to read as follows: 30 (b) The subsequent separation or divorce of the intended parents does 31 not affect the rights, duties and responsibilities of the intended 32 parents as outlined in the surrogacy agreement. After the execution of a 33 surrogacy agreement under this article, the subsequent spousal relation- 34 ship of the intended parent does not affect the validity of a surrogacy 35 agreement, and the consent of the new spouse of [the] an intended parent 36 to the agreement shall not be required. 37 § 12. Section 581-405 of the family court act, as added by section 1 38 of part L of chapter 56 of the laws of 2020, is amended to read as 39 follows: 40 § 581-405. Termination of surrogacy agreement. After the execution of 41 a surrogacy agreement but before the [person acting as surrogate becomes42pregnant by means of assisted reproduction,] embryo transfer occurs or 43 after an unsuccessful embryo transfer, the person acting as surrogate, 44 the spouse of the person acting as surrogate, if applicable, or any 45 intended parent may terminate the surrogacy agreement by giving notice 46 of termination in a record to all other parties. Upon proper termination 47 of the surrogacy agreement the parties are released from all obligations 48 recited in the surrogacy agreement except that the intended parent or 49 parents [remains] shall remain responsible for all [expenses that are50reimbursable] lost wages and other financial obligations which have 51 accrued under the agreement [which have been incurred by the person52acting as surrogate] through the date of termination. If the intended 53 parent or parents terminate the surrogacy agreement pursuant to this 54 section after the person acting as surrogate has taken any medication or 55 commenced treatment to further embryo transfer, such intended parent or 56 parents shall be responsible for paying [for or reimbursing the personS. 6386--B 15 1acting as surrogate for all co-payments, deductibles,] any other out-of- 2 pocket medical costs[, and any other economic losses] incurred within 3 twelve months [of] after the termination of the agreement [and] which, 4 as documented by a health care practitioner, are associated with taking 5 such medication or undertaking such treatment. Unless the agreement 6 provides otherwise, the person acting as surrogate is entitled to keep 7 all payments received and obtain all payments to which the person is 8 entitled up until the date of termination of the agreement. Neither a 9 person acting as surrogate nor the spouse of the person acting as surro- 10 gate, if [any] applicable, is liable to the intended parent or parents 11 for terminating a surrogacy agreement as provided in this section. 12 § 13. Section 581-406 of the family court act, as added by section 1 13 of part L of chapter 56 of the laws of 2020, is amended to read as 14 follows: 15 § 581-406. Parentage under compliant surrogacy agreement. Upon the 16 birth of a child conceived by assisted reproduction under a surrogacy 17 agreement that complies with this part, each intended parent is, by 18 operation of law, a parent of the child and neither the person acting as 19 [a] surrogate nor the person's spouse, if [any] applicable, is a parent 20 of the child. 21 § 14. Section 581-409 of the family court act, as added by section 1 22 of part L of chapter 56 of the laws of 2020, is amended to read as 23 follows: 24 § 581-409. Dispute as to surrogacy agreement. (a) Any dispute which is 25 related to a surrogacy agreement other than disputes as to parentage, 26 which are not resolved through alternative dispute resolution methods, 27 shall be resolved by the supreme court, which shall determine the 28 respective rights and obligations of the parties[, in]. In any proceed- 29 ing initiated pursuant to this section, the court may, at its 30 discretion, authorize the use of conferencing or mediation at any point 31 in the proceedings. 32 (b) Except as expressly provided in the surrogacy agreement[, the33intended parent or parents and the person acting as surrogate shall be34entitled to all remedies available at law or equity in any dispute35related to the surrogacy agreement.36(c) There shall be no specific performance remedy available for a37breach] or subdivision (c) or (d) of this section, if the agreement is 38 breached by the person acting as surrogate, the spouse of the person 39 acting as surrogate, if applicable, or one or more intended parent, the 40 non-breaching party shall be entitled to all remedies available at law 41 or in equity in any dispute related to the surrogacy agreement. 42 (c) Specific performance shall not be a remedy available for a breach 43 by a person acting as surrogate of a provision in the surrogacy agree- 44 ment that the person acting as surrogate be impregnated, agree to a 45 multiple embryo transfer, terminate or not terminate a pregnancy, or 46 submit to medical procedures including a cesarean section. 47 (d) If any intended parent is adjudicated to be the parent of the 48 child, specific performance is a remedy available for: (1) breach of the 49 surrogacy agreement by a person acting as surrogate which prevents the 50 intended parent or parents from exercising the full rights of parentage 51 immediately upon the birth of the child; or (2) breach by the intended 52 parent or parents by failure to accept the duties of parentage imme- 53 diately upon the birth of the child. 54 (e) In any proceeding initiated pursuant to this section, where the 55 supreme court determines that the dispute involves both contractual and 56 parentage issues, the court may order that the portion of theS. 6386--B 16 1 proceedings raising parentage issues may be transferred to the family or 2 surrogate's court. 3 § 15. Section 581-502 of the family court act, as added by section 1 4 of part L of chapter 56 of the laws of 2020, is amended to read as 5 follows: 6 § 581-502. Compensation. (a) Compensation may be paid to a donor or 7 person acting as surrogate based on medical risks, physical discomfort, 8 inconvenience and the responsibilities they are undertaking in 9 connection with their participation in the assisted reproduction. Under 10 no circumstances may compensation be paid to purchase gametes or embryos 11 or for the release of a parental interest in a child. 12 (b) The compensation, if any, paid to a donor or person acting as 13 surrogate must be reasonable and negotiated in good faith between the 14 parties[, and said payments]. Base compensation paid to a person acting 15 as surrogate shall not exceed the duration of the pregnancy and recuper- 16 ative period of [up to] eight weeks after the birth of any resulting 17 [children] child. Supplemental compensation for any medical procedure 18 associated with complications from the pregnancy or delivery as 19 confirmed by a health care practitioner, and any associated lost wages, 20 may be, but are not required to be, paid after the recuperative period 21 and until twelve months after the birth of the child, a stillbirth, a 22 miscarriage resulting in termination of the pregnancy, or termination of 23 the pregnancy. 24 (c) Compensation may not be conditioned upon the purported quality or 25 genome-related traits of the gametes or embryos. 26 (d) Compensation may not be conditioned on actual genotypic or pheno- 27 typic characteristics of the donor or donors or of any resulting chil- 28 dren. 29 (e) Compensation to [an] any embryo donor shall be limited to storage 30 fees, transportation costs and attorneys' fees. 31 § 16. Section 581-601 of the family court act, as added by section 1 32 of part L of chapter 56 of the laws of 2020, is amended to read as 33 follows: 34 § 581-601. Applicability. The rights enumerated in this part shall 35 apply to any person acting as surrogate [in] under the laws of this 36 state, notwithstanding any surrogacy agreement, judgment of parentage, 37 memorandum of understanding, verbal agreement or contract to the contra- 38 ry. Except as otherwise provided by law, any written or verbal agreement 39 purporting to waive or limit any of the rights in this part is void as 40 against public policy. The rights enumerated in this part are not exclu- 41 sive, and are in addition to any other rights provided by law, regu- 42 lation, or a surrogacy agreement that meets the requirements of this 43 article. 44 § 17. Section 581-603 of the family court act, as added by section 1 45 of part L of chapter 56 of the laws of 2020, is amended to read as 46 follows: 47 § 581-603. Independent legal counsel. A person acting as surrogate, 48 and the spouse of the person acting as surrogate, if applicable, has the 49 right to be represented throughout the contractual process and the dura- 50 tion of the surrogacy [agreement and its execution] arrangement by inde- 51 pendent legal counsel of their own choosing who is licensed to practice 52 law in the state of New York, to be paid for by the intended parent or 53 parents. The intended parent or parents shall not be required to pay the 54 legal fees for the person acting as surrogate, and the spouse of the 55 person acting as surrogate, if applicable, in connection with a liti-S. 6386--B 17 1 gated dispute between the parties unless otherwise ordered by an arbiter 2 or court of competent jurisdiction. 3 § 18. Section 581-604 of the family court act, as added by section 1 4 of part L of chapter 56 of the laws of 2020, is amended to read as 5 follows: 6 § 581-604. Health insurance and medical costs. A person acting as 7 surrogate has the right to have [a] comprehensive health insurance 8 [policy] that covers preconception [care, prenatal care, major medical9treatments, hospitalization and behavioral health care] medical expenses 10 and medical expenses associated with the pregnancy for a [term] period 11 that extends throughout the duration of the expected pregnancy and for 12 twelve months after the birth of the child, a stillbirth, a miscarriage 13 resulting in termination of pregnancy, or termination of the pregnancy, 14 to be paid for by the intended parent or parents. [The intended parent15or parents shall also pay for or reimburse the person acting as surro-16gate for all co-payments, deductibles and any other out-of-pocket17medical costs associated with pregnancy, childbirth, or postnatal care18that accrue through] In addition, a person acting as a surrogate shall 19 have the right to have the intended parent or parents pay for all of 20 their medical expenses incurred in connection with the surrogacy 21 arrangement, continuing through the duration of the expected pregnancy 22 and for twelve months after the birth of the child, a stillbirth, a 23 miscarriage resulting in the termination of pregnancy, or the termi- 24 nation of the pregnancy. A person acting as a surrogate who is receiving 25 no compensation may waive the right to have the intended parent or 26 parents make such payments or reimbursements. 27 § 19. Section 581-605 of the family court act, as added by section 1 28 of part L of chapter 56 of the laws of 2020, is amended to read as 29 follows: 30 § 581-605. Counseling. A person acting as surrogate has the right to 31 [obtain a comprehensive health insurance policy that covers behavioral32health care and will cover the cost of psychological] mental health 33 counseling to address issues resulting from their participation in [a] 34 the surrogacy [and such policy] arrangement, which shall be paid for by 35 an insurance policy or by the intended parent or parents. 36 § 20. Section 581-606 of the family court act, as added by section 1 37 of part L of chapter 56 of the laws of 2020, is amended to read as 38 follows: 39 § 581-606. Life insurance, contractual liability, or accidental death 40 insurance policy. A person acting as surrogate has the right to be 41 provided a life insurance, contractual liability or accidental death 42 insurance policy that takes effect prior to taking any medication or 43 commencement of treatment to further embryo transfer, provides a minimum 44 benefit of seven hundred fifty thousand dollars, or the maximum amount 45 the person acting as surrogate [qualifying] qualifies for [it] if less 46 than seven hundred fifty thousand dollars, and [has a term that extends] 47 such coverage shall extend throughout the duration of the expected preg- 48 nancy and for twelve months after the birth of the child, a stillbirth, 49 a miscarriage resulting in termination of pregnancy, or termination of 50 the pregnancy, with a beneficiary or beneficiaries of [their] the person 51 acting as surrogate's choosing, to be paid for by the intended parent or 52 parents. 53 § 21. The family court act is amended by adding a new section 581-705 54 to read as follows: 55 § 581-705. Adjudication. (a) A court adjudicating the parentage of a 56 child conceived through assisted reproduction or adjudicating theS. 6386--B 18 1 enforceability of an embryo disposition agreement may apply section 2 581-202 and part three of this article retroactively. 3 (b) The participants in a surrogacy arrangement that involved the 4 payment of compensation prior to February fifteenth, two thousand twen- 5 ty-one shall not be eligible to receive a judgment of parentage pursuant 6 to section 581-203 or section 581-406 of this article, but shall be 7 entitled to seek a judgment of parentage pursuant to section 581-407 of 8 this article. 9 (c) This article shall apply retroactively to uncompensated surrogacy 10 arrangements entered into prior to February fifteenth, two thousand 11 twenty-one. 12 (d) Surrogacy agreements that were executed on or after February 13 fifteenth, two thousand twenty-one, but before the effective date of the 14 chapter of the laws of two thousand twenty-two that added this subdivi- 15 sion that were in compliance with this article before it was amended by 16 the chapter of the laws of two thousand twenty-two that added this 17 subdivision shall be deemed a compliant surrogacy agreement pursuant to 18 section 581-406 of this article regardless of any deviations from the 19 current provisions of this article. 20 § 22. Paragraph (a) of subdivision 2 of section 123 of the domestic 21 relations law, as amended by section 5 of part L of chapter 56 of the 22 laws of 2020, is amended to read as follows: 23 (a) Any party to a genetic surrogate parenting agreement or the spouse 24 of any [part] party to a genetic surrogate parenting agreement who 25 violate this section shall be subject to a civil penalty not to exceed 26 five hundred dollars. 27 § 23. Subdivision (c) of section 1400 of the general business law, as 28 added by section 11 of part L of chapter 56 of the laws of 2020, is 29 amended to read as follows: 30 (c) "Surrogacy program" does not include any party to a surrogacy 31 agreement or any person licensed to practice law and representing a 32 party to the surrogacy agreement, but does include and is not limited to 33 any agency, agent, business, or individual engaged in, arranging, or 34 facilitating transactions contemplated by a surrogacy agreement, regard- 35 less of whether such agreement ultimately comports with the requirements 36 of part four of article five-C of the family court act. Any person 37 licensed to practice law shall be deemed a surrogacy program only in 38 those cases where such person is providing matching services to the 39 intended parent or parents and the person acting as a surrogate. 40 § 24. Section 1401 of the general business law, as added by section 11 41 of part L of chapter 56 of the laws of 2020, is amended to read as 42 follows: 43 § 1401. Surrogacy programs regulated under this article. The 44 provisions of this article apply to surrogacy programs arranging or 45 facilitating transactions contemplated by a surrogacy agreement, regard- 46 less of whether such agreement ultimately comports with the requirements 47 under part four of article five-C of the family court act if: 48 (a) The surrogacy program does business in New York state; or 49 (b) A person acting as surrogate who is party to a surrogacy agreement 50 resides in New York state [during the term of] at the time the surrogacy 51 agreement[; or52(c) Any medical procedures under the surrogacy agreement are performed53in New York state] is executed. 54 § 25. Subdivisions (a) and (f) of section 1403 of the general business 55 law, as added by section 11 of part L of chapter 56 of the laws of 2020, 56 are amended to read as follows:S. 6386--B 19 1 (a) Shall keep all funds paid by or on behalf of the intended parent 2 or parents other than funds paid to the surrogacy program for its fees, 3 in an escrow account separate from its operating accounts; and 4 (f) Shall be licensed to operate in New York state pursuant to regu- 5 lations promulgated by the department of health in consultation with the 6 department of financial services[, once such regulations are promulgated7and become effective]; and 8 § 26. Subdivision 1 of section 1404 of the general business law, as 9 added by section 11 of part L of chapter 56 of the laws of 2020, is 10 amended to read as follows: 11 1. The department of health, in consultation with the department of 12 financial services, shall promulgate rules and regulations to implement 13 the requirements of this article regarding surrogacy programs and 14 assisted reproduction service providers in a manner that ensures the 15 safety and health of gamete providers and persons serving as surrogates. 16 Such regulations shall: 17 (a) Require surrogacy programs to monitor compliance with [surrogacy18agreements] eligibility [and requirements in state law] criteria for the 19 intended parents and persons acting as surrogates under this article; 20 and 21 (b) Require the [surrogacy programs and] assisted reproduction service 22 providers to administer informed consent procedures that comply with 23 regulations promulgated by the department of health under section twen- 24 ty-five hundred ninety-nine-cc of the public health law. 25 § 27. This act shall take effect immediately.
