S. 5107--C 2
include a person who is a parent under part three of this article. Donor
also includes an individual who had dispositional control of an embryo
or gametes who then transfers dispositional control and releases all
present and future parental and inheritance rights and obligations to a
resulting child.
(e) "Embryo" means a cell or group of cells containing a diploid
complement of chromosomes or group of such cells, not a gamete or
gametes, that has the potential to develop into a live born human being
if transferred into the body of a person under conditions in which
gestation may be reasonably expected to occur.
(f) "Embryo transfer" means all medical and laboratory procedures that
are necessary to effectuate the transfer of an embryo into the uterine
cavity.
(g) "Gamete" means a cell containing a haploid complement of DNA that
has the potential to form an embryo when combined with another gamete.
Sperm and eggs shall be considered gametes. A human gamete used or
intended for reproduction may not contain nuclear DNA that has been
deliberately altered, or nuclear DNA from one human combined with the
cytoplasm or cytoplasmic DNA of another human being.
(h) "HEALTH CARE PRACTITIONER" MEANS AN INDIVIDUAL LICENSED OR CERTI-
FIED UNDER TITLE EIGHT OF THE EDUCATION LAW, OR A SIMILAR LAW OF ANOTHER
STATE OR COUNTRY, ACTING WITHIN HIS OR HER SCOPE OF PRACTICE.
(I) "Independent escrow agent" means someone other than the parties to
a surrogacy agreement and their attorneys. An independent escrow agent
can, but need not, be a surrogacy program, provided such surrogacy
program is owned [or managed] by an attorney licensed to practice law in
the state of New York. If such independent escrow agent is not AN attor-
ney owned SURROGACY PROGRAM, it shall be [licensed,] bonded and insured.
[(i) "Surrogacy agreement" is an agreement between at least one
intended parent and a person acting as surrogate intended to result in a
live birth where the child will be the legal child of the intended
parents.]
(j) "IN VITRO FERTILIZATION" MEANS THE FORMATION OF A HUMAN EMBRYO
OUTSIDE THE HUMAN BODY.
(K) "INTENDED PARENT" IS AN INDIVIDUAL WHO MANIFESTS THE INTENT TO BE
LEGALLY BOUND AS THE PARENT OF A CHILD RESULTING FROM ASSISTED REPROD-
UCTION OR A SURROGACY AGREEMENT, PROVIDED HE OR SHE MEETS THE REQUIRE-
MENTS OF THIS ARTICLE.
(L) "PARENT" AS USED IN THIS ARTICLE MEANS AN INDIVIDUAL WITH A
PARENT-CHILD RELATIONSHIP CREATED OR RECOGNIZED UNDER THIS ACT OR OTHER
LAW.
(M) "PARTICIPANT" IS AN INDIVIDUAL WHO EITHER PROVIDES A GAMETE THAT
IS USED IN ASSISTED REPRODUCTION, IS AN INTENDED PARENT, IS A PERSON
ACTING AS SURROGATE, OR IS THE SPOUSE OF AN INTENDED PARENT OR PERSON
ACTING AS SURROGATE.
(N) "Person acting as surrogate" means an adult person, not an
intended parent, who enters into a surrogacy agreement to bear a child
who will be the legal child of the intended parent or parents so long as
the person acting as surrogate has not provided the egg used to conceive
the resulting child.
[(k) "Health care practitioner" means an individual licensed or certi-
fied under title eight of the education law, or a similar law of another
state or country, acting within his or her scope of practice.
(l) "Intended parent" is an individual who manifests the intent to be
legally bound as the parent of a child resulting from assisted reprod-
S. 5107--C 3
uction or a surrogacy agreement provided he or she meets the require-
ments of this article.
(m) "In vitro fertilization" means the formation of a human embryo
outside the human body.
(n) "Parent" as used in this article means an individual with a
parent-child relationship created or recognized under this act or other
law.
(o) "Participant" is an individual who either: provides a gamete that
is used in assisted reproduction, is an intended parent, is a person
acting as surrogate, or is the spouse of an intended parent or person
acting as surrogate.
(p)] (O) "Record" means information inscribed in a tangible medium or
stored in an electronic or other medium that is retrievable in perceiva-
ble form.
[(q)] (P) "Retrieval" means the procurement of eggs or sperm from a
gamete provider.
[(r)] (Q) "Spouse" means an individual married to another, or who has
a legal relationship entered into under the laws of the United States or
of any state, local or foreign jurisdiction, which is substantially
equivalent to a marriage, including a civil union or domestic partner-
ship.
[(s)] (R) "State" means a state of the United States, the District of
Columbia, Puerto Rico, the United States Virgin Islands, or any territo-
ry or insular possession subject to the jurisdiction of the United
States.
(S) "SURROGACY AGREEMENT" MEANS AN AGREEMENT BETWEEN AT LEAST ONE
INTENDED PARENT AND A PERSON ACTING AS SURROGATE INTENDED TO RESULT IN A
LIVE BIRTH WHERE THE CHILD WILL BE THE LEGAL CHILD OF THE INTENDED
PARENTS.
(t) "Transfer" means the placement of an embryo or gametes into the
body of a person with the intent to achieve pregnancy and live birth.
§ 2. Section 581-202 of the family court act, as added by section 1 of
part L of chapter 56 of the laws of 2020, is amended to read as follows:
§ 581-202. Proceeding for judgment of parentage of a child conceived
through assisted reproduction. (a) A proceeding for a judgment of
parentage with respect to a child conceived through assisted reprod-
uction may be commenced:
(1) if [the] AN intended parent or child resides in New York state, in
the county where the intended parent resides any time after pregnancy is
achieved or in the county where the child was born or resides OR IN THE
COUNTY WHERE THE BIRTH IS INTENDED TO OCCUR; or
(2) if [the] NEITHER AN intended parent [and] NOR THE child [do not]
reside in New York state, up to ninety days after the birth of the child
in the county where the child was born.
(b) The petition for a judgment of parentage must be verified.
(c) Where [a petition includes the following truthful] THE COURT FINDS
THE FOLLOWING statements IN THE PETITION TO BE TRUE, the court shall
adjudicate the intended parent OR PARENTS to be the parent OR PARENTS of
the child WITHOUT THE NEED FOR ADDITIONAL PROCEEDINGS OR DOCUMENTATION:
(1) a statement that an intended parent OR CHILD has been a resident
of the state for at least six months, or if an intended parent OR CHILD
is not a New York state resident, that the child [will be or] was born
in [the] NEW YORK state within ninety days of filing; and
(2) a statement from the gestating intended parent that the gestating
intended parent became pregnant as a result of assisted reproduction;
and
S. 5107--C 4
(3) in cases where there is a non-gestating intended parent, a state-
ment from the gestating intended parent and non-gestating intended
parent that the non-gestating intended parent consented to assisted
reproduction pursuant to section 581-304 of this article; and
(4) proof of any donor's donative intent.
THE COURT MAY, IN ITS DISCRETION, DISPENSE WITH TESTIMONY TO ESTABLISH
THE TRUTHFULNESS OF THE STATEMENTS.
(d) The following shall be deemed sufficient proof of a donor's dona-
tive intent for purposes of this section:
(1) [in the case of an anonymous donor or] where gametes or embryos
have [previously] been released to a gamete or embryo storage facility
or WERE DONATED in the presence of a health care practitioner, either:
(i) a statement or documentation from the gamete or embryo storage
facility or health care practitioner stating or demonstrating that such
gametes or embryos [were anonymously donated or] had previously been
released; [or]
(ii) A RECORD FROM THE GAMETE OR EMBRYO DONOR OR DONORS EVIDENCING
INTENT TO RELEASE THE GAMETES OR EMBRYOS; OR
(III) clear and convincing evidence that the gamete or embryo donor
[intended to donate gametes or embryos anonymously or intended to
release such gametes or embryos to a gamete or embryo storage facility
or health care practitioner;] or DONORS CONFIRMED, PRIOR TO DONATION,
THAT THE DONOR OR DONORS WOULD HAVE NO PARENTAL OR PROPRIETARY INTEREST
IN THE GAMETES OR EMBRYOS;
(2) [in the case of a donation from a known donor, either: a.] WHERE
THE GAMETES OR EMBRYOS WERE NOT RELEASED TO A GAMETE OR EMBRYO STORAGE
FACILITY OR DONATED IN THE PRESENCE OF A HEALTH CARE PRACTITIONER,
EITHER:
(I) a record from the gamete or embryo donor acknowledging the
donation and confirming that the donor [has] OR DONORS SHALL HAVE no
parental or proprietary interest in the gametes or embryos. The record
shall be signed by the [gestating] intended parent OR PARENTS and the
gamete or embryo donor[. The record may be, but is not required to be,
signed] OR DONORS:
[(i)] (A) before a notary public, or
[(ii)] (B) before two witnesses who are not the intended parents, or
[(iii)] (C) before a health care practitioner; or
[b.] (II) clear and convincing evidence that the gamete or embryo
donor OR DONORS agreed, prior to [conception] THE GAMETES OR EMBRYOS
BEING USED FOR ASSISTED REPRODUCTION, [with the gestating parent] that
the donor [has] OR DONORS WOULD HAVE no parental or proprietary interest
in the gametes or embryos.
(3) EXCEPT FOR THOSE AGREEMENTS EXECUTED IN COMPLIANCE WITH SECTION
581-306 OF THIS ARTICLE, THIS SUBDIVISION SHALL NOT APPLY WHERE THE
PERSON PROVIDING THE GAMETES OR EMBRYOS IS THE SPOUSE OF THE INTENDED
PARENT.
(e) [(1)] In the absence of evidence pursuant to SUBPARAGRAPHS (I) AND
(II) OF PARAGRAPH ONE AND SUBPARAGRAPH (I) OF paragraph two of [this]
subdivision (D) OF THIS SECTION, notice shall be given to the donor at
least twenty days prior to the date set for the proceeding to determine
the existence of donative intent by delivery of a copy of the petition
and notice pursuant to section three hundred eight of the civil practice
law and rules. IF AN INTENDED PARENT OR AN INTENDED PARENT'S SPOUSE IS
NOT A PETITIONER, SUCH NOTICE SHALL ALSO BE GIVEN TO SUCH PERSON WHO
SHALL BE A NECESSARY PARTY UNLESS THE INTENDED PARENT PROCEEDED WITHOUT
THE PARTICIPATION OF THEIR SPOUSE IN COMPLIANCE WITH SUBDIVISION (B) OF
S. 5107--C 5
SECTION 581-305 OR SECTION 581-306 OF THIS ARTICLE. Upon a showing to
the court, by affidavit or otherwise, on or before the date of the
proceeding or within such further time as the court may allow, that
personal service cannot be effected at the [donor's] last known address
OR ADDRESSES OF THE DONOR OR DONORS, AND/OR THE NON-PETITIONING INTENDED
PARENT, IF ANY, with reasonable effort, notice may be given, without
prior court order therefore, at least twenty days prior to the proceed-
ing by registered or certified mail directed to [the donor's] SUCH last
known address OR ADDRESSES. Notice by publication shall not be required
to be given to [a donor] ANYONE entitled to notice pursuant to the
provisions of this section.
[(2)] Notwithstanding the above, where THERE IS EVIDENCE THAT sperm is
provided under the supervision of a health care practitioner to someone
other than the sperm provider's intimate partner or spouse without a
record of the sperm provider's intent to parent, notice is not required.
(f) In cases not covered by subdivision (c) of this section, the court
shall adjudicate the parentage of the child consistent with part three
of this article.
(g) Where the requirements of subdivision (c) of this section are met
or where the court finds the intended parent OR PARENTS to be a parent
under subdivision [(e)] (F) of this section, the court shall issue a
judgment of parentage:
(1) declaring[, that] THE INTENDED PARENT OR PARENTS TO BE THE LEGAL
PARENT OR PARENTS OF THE CHILD IMMEDIATELY upon the birth of the child[,
the intended parent or parents is or are the legal parent or parents of
the child]; and
(2) ordering the intended parent or parents to assume responsibility
for the maintenance and support of the child immediately upon the birth
of the child; and
(3) if there is a donor OR DONORS, ordering that [the] ANY donor is
not a parent of the child; and
(4) ordering that:
(i) [Pursuant] THE HOSPITAL BIRTH REGISTRAR SHALL REPORT THE PARENTAGE
OF THE CHILD ON THE RECORD OF LIVE BIRTH IN CONFORMITY WITH THE JUDGMENT
OF PARENTAGE, IF THE JUDGMENT OF PARENTAGE IS ISSUED BEFORE THE BIRTH OF
THE CHILD; AND
(II) IF A CHANGE TO THE CHILD'S BIRTH CERTIFICATE IS NECESSITATED BY
THE JUDGMENT OF PARENTAGE, THEN PURSUANT to section two hundred fifty-
four of the judiciary law, the clerk of the court shall transmit to the
state commissioner of health, or for a person born in New York city, to
the commissioner of health of the city of New York, on a form prescribed
by the commissioner, a written notification of such entry together with
such other facts as may assist in identifying the birth record of the
person whose parentage was in issue and, if such person whose parentage
has been determined is under eighteen years of age, the clerk shall also
transmit forthwith to the registry operated by the department of social
services pursuant to section three hundred seventy-two-c of the social
services law a notification of such determination; and
[(ii)] (III) Pursuant to section forty-one hundred thirty-eight of the
public health law and NYC Public Health Code section 207.05 that upon
receipt of a judgment of parentage the local registrar where a child is
born will report the parentage of the child to the appropriate depart-
ment of health in conformity with the court order. If an original birth
certificate has already been issued, the appropriate department of
health will amend the birth certificate in an expedited manner and seal
the previously issued birth certificate except that it may be rendered
S. 5107--C 6
accessible to the child at eighteen years of age or the legal parent or
parents; AND
(5) IF THE JUDGMENT OF PARENTAGE IS ISSUED PRIOR TO THE BIRTH OF THE
CHILD, ORDERING THE PETITIONER OR PETITIONERS, WITHIN FOURTEEN DAYS OF
SUCH BIRTH, TO PROVIDE THE COURT WITH NOTIFICATION THEREOF, TOGETHER
WITH SUCH OTHER FACTS AS MAY ASSIST IN IDENTIFYING THE BIRTH RECORD OF
THE CHILD WHOSE PARENTAGE WAS IN ISSUE. SUCH NOTIFICATION SHALL BE IN
WRITING ON A FORM TO BE PRESCRIBED BY THE CHIEF ADMINISTRATOR OF THE
COURTS. THE COURT SHALL THEREAFTER ISSUE AN AMENDED JUDGMENT OF PARENT-
AGE THAT INCLUDES THE CHILD'S NAME AS IT APPEARS ON THE CHILD'S BIRTH
CERTIFICATE AND THE CHILD'S DATE OF BIRTH.
§ 3. Section 581-203 of the family court act, as added by section 1 of
part L of chapter 56 of the laws of 2020, is amended to read as follows:
§ 581-203. Proceeding for judgment of parentage of a child conceived
pursuant to a surrogacy agreement. (a) The proceeding may be commenced
(1) in any county where an intended parent resided any time after the
surrogacy agreement was executed; OR (2) in the county where the child
was born or resides OR IN THE COUNTY WHERE THE BIRTH IS INTENDED TO
OCCUR; or (3) in the county where the surrogate resided any time after
the surrogacy agreement was executed.
(b) The proceeding may be commenced at any time after [the surrogacy
agreement has been executed] PREGNANCY IS ACHIEVED and the person acting
as surrogate, THE SPOUSE OF THE PERSON ACTING AS SURROGATE, IF ANY,
DONORS FOR WHOM THERE IS NOT PROOF OF DONATIVE INTENT AS SET FORTH IN
SUBDIVISION (D) OF SECTION 581-202 OF THIS PART, and all intended
parents are necessary parties. THE SERVICE PROVISIONS OF SUBDIVISION
(E) OF SECTION 581-202 OF THIS PART SHALL BE APPLICABLE TO DONORS ENTI-
TLED TO NOTICE PURSUANT TO THIS PROVISION.
(c) The petition for a judgment of parentage must be verified and
include the following:
(1) a statement that the person acting as surrogate or at least one
[of the] intended [parents] PARENT has been a resident of the state for
at least six months at the time the surrogacy agreement was executed;
and
(2) a certification from the attorney representing the intended parent
or parents and the attorney representing the person acting as surrogate
AND THE SPOUSE OF THE PERSON ACTING AS SURROGATE, IF APPLICABLE, that
EACH OF the requirements of part four of this article have been met; and
(3) a statement from all parties to the surrogacy agreement that they
knowingly and voluntarily entered into the surrogacy agreement and that
the parties are jointly requesting the judgment of parentage; AND
(4) A COPY OF THE EXECUTED SURROGACY AGREEMENT.
(d) Where the court finds the statements required by subdivision (c)
of this section to be true, the court shall issue a judgment of parent-
age, without additional proceedings or documentation:
(1) declaring, that upon the birth of the child born during the term
of the surrogacy agreement, the intended parent or parents are the only
legal parent or parents of the child;
(2) declaring, that upon the birth of the child born during the term
of the surrogacy agreement, the person acting as surrogate, and the
spouse of the person acting as surrogate, if [any] APPLICABLE, is not
[the] A legal parent of the child;
(3) declaring that upon the birth of the child born during the term of
the surrogacy agreement, [the donors] ANY DONOR, if [any] APPLICABLE,
[are] IS not [the parents] A PARENT of the child;
S. 5107--C 7
(4) ordering the person acting as surrogate and the spouse of the
person acting as surrogate, if any, to transfer the child to the
intended parent or parents if this has not already occurred;
(5) ordering the intended parent or parents to assume responsibility
for the maintenance and support of the child immediately upon the birth
of the child; and
(6) ordering that:
(i) [Pursuant] THE HOSPITAL BIRTH REGISTRAR SHALL REPORT THE PARENTAGE
OF THE CHILD ON THE RECORD OF LIVE BIRTH IN CONFORMITY WITH THE JUDGMENT
OF PARENTAGE, IF THE JUDGMENT OF PARENTAGE IS ISSUED BEFORE THE BIRTH OF
THE CHILD; AND
(II) IF A CHANGE TO THE CHILD'S BIRTH CERTIFICATE IS NECESSITATED BY
THE JUDGMENT OF PARENTAGE, THEN PURSUANT to section two hundred fifty-
four of the judiciary law, the clerk of the court shall transmit to the
state commissioner of health, or for a person born in New York city, to
the commissioner of health of the city of New York, on a form prescribed
by the commissioner, a written notification of such entry together with
such other facts as may assist in identifying the birth record of the
person whose parentage was in issue and, if the person whose parentage
has been determined is under eighteen years of age, the clerk shall also
transmit to the registry operated by the department of social services
pursuant to section three hundred seventy-two-c of the social services
law a notification of the determination; and
[(ii)] (III) Pursuant to section forty-one hundred thirty-eight of the
public health law and NYC Public Health Code section 207.05 that upon
receipt of a judgement of parentage the local registrar where a child is
born will report the parentage of the child to the appropriate depart-
ment of health in conformity with the court order. If an original birth
certificate has already been issued, the appropriate department of
health will amend the birth certificate in an expedited manner and seal
the previously issued birth certificate except that it may be rendered
accessible to the child at eighteen years of age or the legal parent or
parents; AND
(7) IF THE JUDGMENT OF PARENTAGE IS ISSUED PRIOR TO THE BIRTH OF THE
CHILD, ORDERING THE PETITIONER OR PETITIONERS, WITHIN SEVEN DAYS OF SUCH
BIRTH, TO PROVIDE THE COURT WITH NOTIFICATION THEREOF, TOGETHER WITH
SUCH OTHER FACTS AS MAY ASSIST IN IDENTIFYING THE BIRTH RECORD OF THE
CHILD WHOSE PARENTAGE WAS IN ISSUE. SUCH NOTIFICATION SHALL BE IN WRIT-
ING ON A FORM TO BE PRESCRIBED BY THE CHIEF ADMINISTRATOR OF THE COURTS.
THE COURT SHALL THEREAFTER ISSUE AN AMENDED JUDGMENT OF PARENTAGE THAT
INCLUDES THE CHILD'S NAME AS IT APPEARS ON THE CHILD'S BIRTH CERTIFICATE
AND THE CHILD'S DATE OF BIRTH.
(e) In the event the certification required by paragraph two of subdi-
vision (c) of this section cannot be made because of a technical or
non-material deviation from the requirements of this article; the court
may nevertheless enforce the agreement and issue a judgment of parentage
if the court determines the agreement is in substantial compliance with
the requirements of this article. In the event that any other require-
ments of subdivision (c) of this section are not met, the court shall
determine parentage according to part four of this article.
§ 4. Section 581-205 of the family court act, as added by section 1 of
part L of chapter 56 of the laws of 2020, is amended to read as follows:
§ 581-205. Inspection of records. Court records relating to
proceedings under this article shall be sealed, provided, however, that
the office of temporary and disability assistance, a child support unit
of a social services district or a child support agency of another state
S. 5107--C 8
providing child support services pursuant to title IV-d of the federal
social security act, when a party to a related support proceeding and to
the extent necessary to provide child support services or for the admin-
istration of the program pursuant to title IV-d of the federal social
security act, may obtain a copy of a judgment of parentage. The parties
to the proceeding and the child shall have the right to inspect and make
copies of the entire court record, including, but not limited to, the
name of the person acting as surrogate and any known [donors] DONOR.
NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE COUNTY CLERK OR THE
CLERK OF THE SUPREME, SURROGATE'S OR FAMILY COURT SHALL NOT DISPLAY THE
SURNAME OF THE CHILD OR PARTIES IN ANY CAPTION, DOCUMENT, INDEX, MINUTES
OR OTHER RECORD AVAILABLE TO THE PUBLIC, WHETHER FILED IN HARD COPY OR
ELECTRONICALLY.
§ 5. Section 581-206 of the family court act, as added by section 1 of
part L of chapter 56 of the laws of 2020, is amended to read as follows:
§ 581-206. Jurisdiction, and exclusive continuing jurisdiction. (a)
Proceedings pursuant to this article may be instituted in [the] NEW YORK
STATE supreme [or] COURT, family court or surrogates court.
(b) THE COURT CONDUCTING A PROCEEDING UNDER THIS ARTICLE SHALL HAVE
EXCLUSIVE, CONTINUING JURISDICTION OF ALL MATTERS RELATING TO THE DETER-
MINATION OF PARENTAGE UNTIL THE CHILD ATTAINS THE AGE OF ONE HUNDRED
EIGHTY DAYS, WHEREAFTER CONTINUING JURISDICTION SHALL BE DETERMINED BY
THE JURISDICTIONAL STANDARDS OF SECTION SEVENTY-SIX OF THE DOMESTIC
RELATIONS LAW.
(C) Subject to the jurisdictional standards of section seventy-six of
the domestic relations law, the court conducting a proceeding under this
article has exclusive, continuing jurisdiction of all matters relating
to the determination of parentage until the child attains the age of one
hundred eighty days.
§ 6. The family court act is amended by adding a new section 581-207
to read as follows:
§ 581-207. CERTIFIED COPY OF JUDGMENT OF PARENTAGE. UPON ISSUING A
JUDGMENT OF PARENTAGE PURSUANT TO SECTION 581-202 OR 581-203 OF THIS
PART, THE ISSUING COURT SHALL PROVIDE A CERTIFIED COPY OF SUCH JUDGMENT
TO THE INTENDED PARENT OR PARENTS.
§ 7. Subdivision (b) of section 581-303 of the family court act, as
added by section 1 of part L of chapter 56 of the laws of 2020, is
amended to read as follows:
(b) The court shall issue a judgment of parentage pursuant to this
article upon application by any [participant] PERSON AUTHORIZED TO FILE
A PETITION PURSUANT TO SUBDIVISION (C) OF SECTION 581-201 OF THIS ARTI-
CLE.
§ 8. Paragraph 3 of subdivision (a) and subdivision (d) of section
581-306 of the family court act, as added by section 1 of part L of
chapter 56 of the laws of 2020, are amended to read as follows:
(3) where the intended parents are married, transfer of legal rights
and dispositional control [occurs only] BECOMES EFFECTIVE upon: (I)
LIVING SEPARATE AND APART PURSUANT TO A DECREE OR JUDGMENT OF SEPARATION
OR PURSUANT TO A WRITTEN AGREEMENT OF SEPARATION SUBSCRIBED BY THE
PARTIES THERETO AND ACKNOWLEDGED OR PROVED IN THE FORM REQUIRED TO ENTI-
TLE A DEED TO BE RECORDED; OR (II) LIVING SEPARATE AND APART AT LEAST
THREE YEARS; OR (III) divorce; OR (IV) DEATH.
(d) An embryo disposition agreement [or advance directive] that is not
in compliance with subdivision (a) of this section may still be found to
be enforceable by the court after balancing the respective interests of
the parties except that the intended parent who divested him or herself
S. 5107--C 9
of legal rights and dispositional control may not be declared to be a
parent for any purpose without his or her consent. The INTENDED parent
awarded legal rights and dispositional control of the embryos shall, in
this instance, be declared to be the only parent of the child.
§ 9. Section 581-402 of the family court act, as added by section 1 of
part L of chapter 56 of the laws of 2020, is amended to read as follows:
§ 581-402. Eligibility to enter surrogacy agreement. (a) A person
acting as surrogate shall be eligible to enter into an enforceable
surrogacy agreement under this article if the person acting as surrogate
has met the following requirements at the time the surrogacy agreement
is executed:
(1) the person acting as surrogate is at least twenty-one years of
age;
(2) the person acting as surrogate: (I) is a United States citizen or
a lawful permanent resident, and[, where at least one intended parent is
not] (II) HAS BEEN a resident of New York state for AT LEAST six
months[, was] IF NEITHER INTENDED PARENT HAS BEEN a resident of New York
state for at least six months;
(3) the person acting as surrogate has not provided the egg used to
conceive the resulting child;
(4) the person acting as surrogate has completed a medical evaluation
with a health care practitioner relating to the anticipated pregnancy.
Such medical evaluation shall include a screening of the medical history
of the potential surrogate including known health conditions that may
pose risks to the potential surrogate or embryo during pregnancy;
(5) the person acting as surrogate has given informed consent [for the
surrogacy] TO UNDERGO THE MEDICAL PROCEDURES after the licensed health
care practitioner [inform] HAS INFORMED them of the medical risks of
surrogacy including the possibility of multiple births, risk of medica-
tions taken for the surrogacy, risk of pregnancy complications, psycho-
logical and psychosocial risks, and impacts on their personal lives;
(6) the person acting as surrogate, and the spouse of the person
acting as surrogate, if applicable, have been represented [throughout]
FROM THE INITIATION OF the contractual process and THROUGHOUT the dura-
tion of the [contract and its execution] SURROGACY AGREEMENT by inde-
pendent legal counsel of their own choosing who is licensed to practice
law in the state of New York which shall be paid for by the intended
parent or parents, except that a person acting as surrogate who is
receiving no compensation may waive the right to have the intended
parent or parents pay the fee for such legal counsel. Where the
[intended parent or parents are paying for the] independent legal coun-
sel of the person acting as surrogate, and the spouse of the person
acting as surrogate, if applicable, IS PAID BY THE INTENDED PARENT OR
PARENTS, a separate retainer agreement shall be prepared clearly stating
that such legal counsel will only represent the person acting as surro-
gate and the spouse of the person acting as surrogate, if applicable, in
all matters pertaining to the surrogacy agreement, that such legal coun-
sel will not offer legal advice to any other parties to the surrogacy
agreement, and that the attorney-client relationship lies with the
person acting as surrogate and the spouse of the person acting as surro-
gate, if applicable;
(7) the person acting as surrogate has or the surrogacy agreement
stipulates that the person acting as surrogate will obtain [a] compre-
hensive health insurance [policy] COVERAGE that takes effect AFTER THE
PERSON ACTING AS SURROGATE HAS BEEN DEEMED MEDICALLY ELIGIBLE BUT prior
to taking any medication or commencing treatment to further embryo
S. 5107--C 10
transfer that covers [preconception care, prenatal care, major medical
treatments, hospitalization, and behavioral health care, and the compre-
hensive policy has a term that extends throughout the duration of the
expected pregnancy and for twelve months after the birth of the child, a
stillbirth, a miscarriage resulting in termination of pregnancy, or
termination of the pregnancy; the policy shall be paid for, whether
directly or through reimbursement or other means, by the intended parent
or parents on behalf of the person acting as surrogate pursuant to the
surrogacy agreement, except that a person acting as surrogate who is
receiving no compensation may waive the right to have the intended
parent or parents pay for the health insurance policy. The intended
parent or parents shall also pay for or reimburse the person acting as
surrogate for all co-payments, deductibles and any other out-of-pocket
medical costs associated with preconception, pregnancy, childbirth, or
postnatal care, that accrue through twelve months after the birth of the
child, a stillbirth, a miscarriage, or termination of the pregnancy. A
person acting as surrogate who is receiving no compensation may waive
the right to have the intended parent or parents make such payments or
reimbursements]:
(I) PRECONCEPTION CARE. THE SURROGACY AGREEMENT SHALL STATE THAT THE
INTENDED PARENT OR PARENTS WILL BE RESPONSIBLE FOR ALL MEDICAL COSTS OF
THE PERSON ACTING AS SURROGATE ASSOCIATED WITH THEIR PRECONCEPTION CARE
INCLUDING BUT NOT LIMITED TO MEDICAL AND PSYCHOLOGICAL SCREENINGS, MEDI-
CATIONS, EMBRYO TRANSFER PROCEDURE, MONITORING PRIOR AND SUBSEQUENT TO
THE EMBRYO TRANSFER PROCEDURE AND ANY COMPLICATIONS ASSOCIATED WITH THE
FOREGOING. THE INTENDED PARENT OR PARENTS SHALL BE RESPONSIBLE FOR THE
COSTS OF ANY SUCH COMPLICATIONS EITHER THROUGH INSURANCE OR BY PLACING
AND MAINTAINING SUFFICIENT FUNDS IN ESCROW TO COVER SUCH EXPENSES. IF
THE SURROGACY AGREEMENT IS TERMINATED AFTER THE PERSON ACTING AS SURRO-
GATE HAS TAKEN ANY MEDICATION OR COMMENCED TREATMENT TO FURTHER EMBRYO
TRANSFER BUT BEFORE PREGNANCY IS ACHIEVED, SUCH FUNDS SHALL REMAIN IN
ESCROW FOR A MINIMUM PERIOD OF SIX MONTHS FROM THE DATE THE SURROGACY
AGREEMENT IS TERMINATED;
(II) MEDICAL EXPENSES ASSOCIATED WITH PREGNANCY. THE PERSON ACTING AS
SURROGATE HAS, OR THE SURROGACY AGREEMENT SHALL STIPULATE THAT THE
PERSON ACTING AS SURROGATE WILL OBTAIN, COMPREHENSIVE HEALTH INSURANCE
COVERAGE, VIA ONE OR MORE INSURANCE POLICIES, PRIOR TO OR IMMEDIATELY
UPON CONFIRMATION OF PREGNANCY THAT COVERS PRENATAL CARE, MAJOR MEDICAL
TREATMENTS, HOSPITALIZATION, BEHAVIORAL HEALTH CARE, CHILDBIRTH AND
POSTNATAL CARE, AND THAT SUCH COMPREHENSIVE COVERAGE MUST BE IN PLACE
THROUGHOUT THE DURATION OF THE PREGNANCY AND FOR TWELVE MONTHS AFTER THE
BIRTH OF THE CHILD, A STILLBIRTH, A MISCARRIAGE RESULTING IN TERMINATION
OF THE PREGNANCY, OR TERMINATION OF THE PREGNANCY. THE POLICY SHALL BE
PAID FOR, WHETHER DIRECTLY OR THROUGH REIMBURSEMENT OR OTHER MEANS, BY
THE INTENDED PARENT OR PARENTS ON BEHALF OF THE PERSON ACTING AS SURRO-
GATE TO THE EXTENT THAT THERE IS AN ADDITIONAL COST TO THE PERSON ACTING
AS SURROGATE FOR SUCH HEALTH INSURANCE COVERAGE. THE INTENDED PARENT OR
PARENTS SHALL ALSO PAY FOR OR REIMBURSE THE PERSON ACTING AS SURROGATE
FOR ALL CO-PAYMENTS, DEDUCTIBLES AND ANY OTHER OUT-OF-POCKET MEDICAL
COSTS ASSOCIATED WITH PREGNANCY, CHILDBIRTH, OR POSTNATAL CARE, THAT
ACCRUE THROUGH TWELVE MONTHS AFTER THE BIRTH OF THE CHILD, A STILLBIRTH,
A MISCARRIAGE RESULTING IN TERMINATION OF THE PREGNANCY, OR TERMINATION
OF THE PREGNANCY; AND
(III) UNCOMPENSATED SURROGACY AGREEMENTS. A PERSON ACTING AS SURROGATE
WHO IS RECEIVING NO COMPENSATION MAY WAIVE THE RIGHT TO HAVE THE
INTENDED PARENT OR PARENTS MAKE THE PAYMENTS SET FORTH IN THIS SECTION;
S. 5107--C 11
(8) the surrogacy agreement must provide that the intended parent or
parents shall [procure and] pay for a life insurance, CONTRACTUAL
LIABILITY OR ACCIDENTAL DEATH INSURANCE policy for the person acting as
surrogate that takes effect prior to taking any medication or the
commencement of medical procedures to further embryo transfer, provides
a minimum benefit of seven hundred fifty thousand dollars or the maximum
amount the person acting as surrogate qualifies for if IT IS less than
seven hundred fifty thousand dollars, and [has a term that extends] SUCH
COVERAGE SHALL EXTEND throughout the duration of the expected pregnancy
and for twelve months after the birth of the child, a stillbirth, a
miscarriage resulting in termination of pregnancy, or termination of the
pregnancy, with a beneficiary or beneficiaries of [their] THE PERSON
ACTING AS SURROGATE'S choosing. The policy shall be paid for, whether
directly or through reimbursement or other means, by the intended parent
or parents on behalf of the person acting as surrogate pursuant to the
surrogacy agreement, except that a person acting as surrogate who is
receiving no compensation may waive the right to have the intended
parent or parents pay for the life insurance, CONTRACTUAL LIABILITY OR
ACCIDENTAL DEATH INSURANCE policy BUT NOT THE REQUIREMENT TO HAVE SUCH A
POLICY; and
(9) the person acting as surrogate meets all other requirements deemed
appropriate by the commissioner of health regarding the health of the
prospective surrogate.
(b) The intended parent or parents shall be eligible to enter into an
enforceable surrogacy agreement under this article if he, she or they
have met the following requirements at the time the surrogacy agreement
was executed:
(1) at least one intended parent is:
(I) a United States citizen or a lawful permanent resident; and
[was] (II) HAS BEEN a resident of New York state for at least six
months IF THE PERSON ACTING AS SURROGATE HAS NOT BEEN A RESIDENT OF THE
STATE OF NEW YORK FOR AT LEAST SIX MONTHS;
(2) [the intended parent or parents has] THEY HAVE been represented
[throughout] FROM THE INITIATION OF the contractual process and THROUGH-
OUT the duration of the [contract and its execution] SURROGACY AGREEMENT
by independent legal counsel of his, her or their own choosing who is
licensed to practice law in the state of New York; and
(3) [he or she is] THEY ARE an adult person who is not in a spousal
relationship, or [adult] ANY ADULTS WHO ARE spouses together, or any
[two] adults who are intimate partners together, except an adult in a
spousal relationship is eligible to enter into an enforceable surrogacy
agreement without [his or her] THEIR spouse if:
(i) they are living separate and apart pursuant to a decree or judg-
ment of separation or pursuant to a written agreement of separation
subscribed by the parties thereto and acknowledged or proved in the form
required to entitle a deed to be recorded; or
(ii) they have been living separate and apart for at least three years
prior to execution of the surrogacy agreement.
(c) where the spouse of an intended parent is not a required party to
the agreement, the spouse is not an intended parent and shall not have
rights or obligations to the child.
§ 10. Section 581-403 of the family court act, as added by section 1
of part L of chapter 56 of the laws of 2020, is amended to read as
follows:
S. 5107--C 12
§ 581-403. Requirements of surrogacy agreement. A surrogacy agreement
shall be deemed to have satisfied the requirements of this article and
be enforceable if it meets the following requirements:
(a) it shall be in a [signed] record [verified or executed before]
WITH EACH SIGNATURE EITHER NOTARIZED OR WITNESSED BY two [non-party
witnesses] NON-PARTIES AND SIGNED by:
(1) each intended parent, and
(2) the person acting as surrogate, and the spouse of the person
acting as surrogate, if [any] APPLICABLE, unless:
(i) [the person acting as surrogate and the spouse of the person
acting as surrogate] THEY are living separate and apart pursuant to a
decree or judgment of separation or pursuant to a written agreement of
separation subscribed by the parties thereto and acknowledged or proved
in the form required to entitle a deed to be recorded; or
(ii) THEY have been living separate and apart for at least three years
prior to execution of the surrogacy agreement;
(b) it shall be executed prior to the person acting as surrogate
taking any medication or the commencement of medical procedures in the
furtherance of embryo transfer, provided the person acting as surrogate
shall have provided informed consent to undergo such medical treatment
or medical procedures prior to executing the agreement;
(c) it shall be executed by a person acting as surrogate meeting the
eligibility requirements of subdivision (a) of section 581-402 of this
part and by the spouse of the person acting as surrogate, IF APPLICABLE,
unless the signature of the spouse of the person acting as surrogate is
not required as set forth in this section;
(d) it shall be executed by intended parent or parents who met the
eligibility requirements of subdivision (b) of section 581-402 of this
part;
(e) the person acting as surrogate and the spouse of the person acting
as surrogate, if applicable, and the intended parent or parents shall
have been represented [throughout] FROM THE INITIATION OF the contractu-
al process and the SURROGACY AGREEMENT STATES THAT THEY SHALL BE REPRES-
ENTED THROUGHOUT THE duration of the [contract and its execution] SURRO-
GACY AGREEMENT by separate, independent legal counsel of their own
choosing, WHO IS LICENSED TO PRACTICE LAW IN THE STATE OF NEW YORK;
(f) if the surrogacy agreement provides for the payment of compen-
sation to the person acting as surrogate, the funds for base compen-
sation and reasonable anticipated additional expenses shall have been
placed in escrow with an independent escrow agent, who consents to the
jurisdiction of New York courts for all proceedings related to the
enforcement of the escrow agreement, prior to the person acting as
surrogate commencing [with] any medical procedure other than medical
evaluations necessary to determine the person acting as surrogate's
eligibility;
(g) the surrogacy agreement must include information disclosing how
the intended parent or parents will cover the medical expenses of the
person acting as surrogate and the child. THE SURROGACY AGREEMENT SHALL
SPECIFY THE AMOUNT THAT THE INTENDED PARENT OR PARENTS SHALL PLACE IN
ESCROW TO COVER SUCH REASONABLE ANTICIPATED COSTS INCLUDING PRECON-
CEPTION MEDICAL CARE AND EXTENDING THROUGHOUT THE DURATION OF THE
EXPECTED SURROGACY AGREEMENT. If IT IS ANTICIPATED THAT comprehensive
health care coverage [is] WILL BE used to cover the medical expenses FOR
THE PERSON ACTING AS SURROGATE, the [disclosure shall include a review
and summary of the] health care policy provisions related to coverage
and exclusions for the person acting as [surrogate's] SURROGATE SHALL BE
S. 5107--C 13
REVIEWED AND SUMMARIZED IN RELATION TO THE ANTICIPATED pregnancy PRIOR
TO SUCH POLICY BEING USED TO COVER ANY OF THE PERSON ACTING AS SURRO-
GATE'S MEDICAL EXPENSES INCURRED PURSUANT TO THE SURROGACY AGREEMENT;
and
(h) [it] THE SURROGACY AGREEMENT shall include the following informa-
tion:
(1) the date, city and state where the surrogacy agreement was
executed;
(2) the first and last names of and contact information for the
intended parent or parents and of the person acting as surrogate;
(3) the first and last names of and contact information for the
persons from which the gametes originated, if known. The agreement shall
specify whether the gametes provided were eggs, sperm, or embryos;
(4) the name of and contact information for the licensed and regis-
tered surrogacy program [handling the] ARRANGING OR FACILITATING THE
TRANSACTIONS CONTEMPLATED BY THE surrogacy agreement, IF ANY; and
(5) the name of and contact information for the attorney representing
the person acting as surrogate, and the spouse of the person acting as
surrogate, if applicable, and the attorney representing the intended
parent or parents; and
(i) the surrogacy agreement must comply with all of the following
terms:
(1) As to the person acting as surrogate and the spouse of the person
acting as surrogate, if applicable:
(i) the person acting as surrogate agrees to undergo embryo transfer
and attempt to carry and give birth to the child;
(ii) the person acting as surrogate and the spouse of the person
acting as surrogate, if applicable, agree to surrender custody of all
resulting children to the intended parent or parents immediately upon
birth;
(iii) the surrogacy agreement shall include the name of the attorney
representing the person acting as surrogate and, if applicable, the
spouse of the person acting as surrogate;
(iv) the surrogacy agreement must include an acknowledgement by the
person acting as surrogate and the spouse of the person acting as surro-
gate, if applicable, that they have received a copy of the Surrogate's
Bill of Rights from their legal counsel;
(v) the surrogacy agreement must permit the person acting as surrogate
to make all health and welfare decisions regarding themselves and their
pregnancy including but not limited to, whether to consent to a cesarean
section or multiple embryo transfer, and notwithstanding any other
provisions in this chapter, provisions in the agreement to the contrary
are void and unenforceable. This article does not diminish the right of
the person acting as surrogate to terminate or continue a pregnancy;
(vi) the surrogacy agreement shall permit the person acting as a
surrogate to utilize the services of a health care practitioner of the
person's choosing;
(vii) the surrogacy agreement shall not limit the right of the person
acting as surrogate to terminate or continue the pregnancy or reduce or
retain the number of fetuses or embryos the person is carrying;
(viii) the surrogacy agreement shall provide for the right of the
person acting as surrogate, upon request, to obtain counseling to
address issues resulting from the person's participation in the surroga-
cy agreement, including, but not limited to, counseling following deliv-
ery. The cost of that counseling shall be paid by the intended parent
or parents;
S. 5107--C 14
(ix) the surrogacy agreement must include a notice that any compen-
sation received pursuant to the agreement may affect THE ELIGIBILITY OF
the person acting as [surrogate's ability] SURROGATE AND THE PERSON
ACTING AS SURROGATE'S SPOUSE, IF APPLICABLE, for public benefits or the
amount of such benefits; and
(x) the surrogacy agreement shall provide that, upon the person acting
as surrogate's request, the intended parent or parents [have or will
procure and] SHALL pay for a disability insurance policy [for] OR OTHER
INSURANCE POLICY TO COVER ANY LOST WAGES INCURRED BY the person acting
as surrogate [; the person acting as surrogate may designate the benefi-
ciary of the person's choosing] IN CONNECTION WITH THEIR PARTICIPATION
IN THE SURROGACY AGREEMENT AFTER TAKING ANY MEDICATION OR COMMENCING
TREATMENT TO FURTHER EMBRYO TRANSFER EXCLUDING MEDICAL PROCEDURES
REQUIRED TO DETERMINE THE MEDICAL ELIGIBILITY TO BECOME A PERSON ACTING
AS SURROGATE. IN THE EVENT THAT SUCH INSURANCE COVERAGE IS NOT AVAIL-
ABLE, THE INTENDED PARENT OR PARENTS SHALL REIMBURSE THE PERSON ACTING
AS SURROGATE FOR ANY LOST WAGES THE PERSON ACTING AS SURROGATE INCURS IN
CONNECTION WITH THEIR PARTICIPATION IN THE SURROGACY AGREEMENT.
(2) As to the intended parent or parents:
(i) the intended parent or parents [agree to] SHALL accept custody of
all resulting children immediately upon birth regardless of number,
gender, or mental or physical condition and regardless of whether the
[intended] EMBRYO OR embryos WAS OR were transferred due to a laboratory
error without diminishing the rights, if any, of anyone claiming to have
a superior parental interest in the child; and
(ii) the intended parent or parents [agree to] SHALL assume responsi-
bility for the support of all resulting children immediately upon birth;
and
(iii) the surrogacy agreement shall include the name of the attorney
representing the intended parent or parents; and
(iv) the surrogacy agreement shall provide that the rights and obli-
gations of the intended parent or parents under the surrogacy agreement
are not assignable; and
(v) the intended parent or parents [agree to] SHALL execute a will,
prior to the embryo transfer, designating a guardian for all resulting
children and authorizing their executor to perform the [intended
parent's or parents'] obligations OF THE INTENDED PARENT OR PARENTS
pursuant to the surrogacy agreement, INCLUDING FILING A PROCEEDING FOR A
JUDGMENT OF PARENTAGE FOR A CHILD CONCEIVED PURSUANT TO A SURROGACY
AGREEMENT PURSUANT TO SECTION 581-203 OF THIS ARTICLE IF THERE IS NO
INTENDED PARENT LIVING.
§ 11. Subdivision (b) of section 581-404 of the family court act, as
added by section 1 of part L of chapter 56 of the laws of 2020, is
amended to read as follows:
(b) The subsequent separation or divorce of the intended parents does
not affect the rights, duties and responsibilities of the intended
parents as outlined in the surrogacy agreement. After the execution of a
surrogacy agreement under this article, the subsequent spousal relation-
ship of the intended parent does not affect the validity of a surrogacy
agreement, and the consent of the NEW spouse of [the] AN intended parent
to the agreement shall not be required.
§ 12. Section 581-405 of the family court act, as added by section 1
of part L of chapter 56 of the laws of 2020, is amended to read as
follows:
§ 581-405. Termination of surrogacy agreement. After the execution of
a surrogacy agreement but before the [person acting as surrogate becomes
S. 5107--C 15
pregnant by means of assisted reproduction,] EMBRYO TRANSFER OCCURS OR
AFTER AN UNSUCCESSFUL EMBRYO TRANSFER, the person acting as surrogate,
the spouse of the person acting as surrogate, if applicable, or any
intended parent may terminate the surrogacy agreement by giving notice
of termination in a record to all other parties. Upon proper termination
of the surrogacy agreement the parties are released from all obligations
recited in the surrogacy agreement except that the intended parent or
parents [remains] SHALL REMAIN responsible for all [expenses that are
reimbursable] LOST WAGES AND OTHER FINANCIAL OBLIGATIONS WHICH HAVE
ACCRUED under the agreement [which have been incurred by the person
acting as surrogate] through the date of termination. If the intended
parent or parents terminate the surrogacy agreement pursuant to this
section after the person acting as surrogate has taken any medication or
commenced treatment to further embryo transfer, such intended parent or
parents shall be responsible for paying [for or reimbursing the person
acting as surrogate for all co-payments, deductibles,] any other out-of-
pocket medical costs[, and any other economic losses] incurred within
twelve months [of] AFTER the termination of the agreement [and] WHICH,
AS DOCUMENTED BY A HEALTH CARE PRACTITIONER, ARE associated with taking
such medication or undertaking such treatment. Unless the agreement
provides otherwise, the person acting as surrogate is entitled to keep
all payments received and obtain all payments to which the person is
entitled up until the date of termination of the agreement. Neither a
person acting as surrogate nor the spouse of the person acting as surro-
gate, if [any] APPLICABLE, is liable to the intended parent or parents
for terminating a surrogacy agreement as provided in this section.
§ 13. Section 581-406 of the family court act, as added by section 1
of part L of chapter 56 of the laws of 2020, is amended to read as
follows:
§ 581-406. Parentage under compliant surrogacy agreement. Upon the
birth of a child conceived by assisted reproduction under a surrogacy
agreement that complies with this part, each intended parent is, by
operation of law, a parent of the child and neither the person acting as
[a] surrogate nor the person's spouse, if [any] APPLICABLE, is a parent
of the child.
§ 14. Section 581-409 of the family court act, as added by section 1
of part L of chapter 56 of the laws of 2020, is amended to read as
follows:
§ 581-409. Dispute as to surrogacy agreement. (a) Any dispute which is
related to a surrogacy agreement other than disputes as to parentage,
WHICH ARE NOT RESOLVED THROUGH ALTERNATIVE DISPUTE RESOLUTION METHODS,
shall be resolved by the supreme court, which shall determine the
respective rights and obligations of the parties[, in]. IN any proceed-
ing initiated pursuant to this section, the court may, at its
discretion, authorize the use of conferencing or mediation at any point
in the proceedings.
(b) Except as expressly provided in the surrogacy agreement[, the
intended parent or parents and the person acting as surrogate shall be
entitled to all remedies available at law or equity in any dispute
related to the surrogacy agreement.
(c) There shall be no specific performance remedy available for a
breach] OR SUBDIVISION (C) OR (D) OF THIS SECTION, IF THE AGREEMENT IS
BREACHED BY THE PERSON ACTING AS SURROGATE, THE SPOUSE OF THE PERSON
ACTING AS SURROGATE, IF APPLICABLE, OR ONE OR MORE INTENDED PARENT, THE
NON-BREACHING PARTY SHALL BE ENTITLED TO ALL REMEDIES AVAILABLE AT LAW
OR IN EQUITY IN ANY DISPUTE RELATED TO THE SURROGACY AGREEMENT.
S. 5107--C 16
(C) SPECIFIC PERFORMANCE SHALL NOT BE A REMEDY AVAILABLE FOR A BREACH
BY A PERSON ACTING AS SURROGATE OF A PROVISION IN THE SURROGACY AGREE-
MENT THAT THE PERSON ACTING AS SURROGATE BE IMPREGNATED, AGREE TO A
MULTIPLE EMBRYO TRANSFER, TERMINATE OR NOT TERMINATE A PREGNANCY, OR
SUBMIT TO MEDICAL PROCEDURES INCLUDING A CESAREAN SECTION.
(D) IF ANY INTENDED PARENT IS ADJUDICATED TO BE THE PARENT OF THE
CHILD, SPECIFIC PERFORMANCE IS A REMEDY AVAILABLE FOR: (1) BREACH OF THE
SURROGACY AGREEMENT BY A PERSON ACTING AS SURROGATE WHICH PREVENTS THE
INTENDED PARENT OR PARENTS FROM EXERCISING THE FULL RIGHTS OF PARENTAGE
IMMEDIATELY UPON THE BIRTH OF THE CHILD; OR (2) BREACH BY THE INTENDED
PARENT OR PARENTS BY FAILURE TO ACCEPT THE DUTIES OF PARENTAGE IMME-
DIATELY UPON THE BIRTH OF THE CHILD.
(E) IN ANY PROCEEDING INITIATED PURSUANT TO THIS SECTION, WHERE THE
SUPREME COURT DETERMINES THAT THE DISPUTE INVOLVES BOTH CONTRACTUAL AND
PARENTAGE ISSUES, THE COURT MAY ORDER THAT THE PORTION OF THE
PROCEEDINGS RAISING PARENTAGE ISSUES MAY BE TRANSFERRED TO THE FAMILY OR
SURROGATE'S COURT.
§ 15. Section 581-502 of the family court act, as added by section 1
of part L of chapter 56 of the laws of 2020, is amended to read as
follows:
§ 581-502. Compensation. (a) Compensation may be paid to a donor or
person acting as surrogate based on medical risks, physical discomfort,
inconvenience and the responsibilities they are undertaking in
connection with their participation in the assisted reproduction. Under
no circumstances may compensation be paid to purchase gametes or embryos
or for the release of a parental interest in a child.
(b) The compensation, if any, paid to a donor or person acting as
surrogate must be reasonable and negotiated in good faith between the
parties[, and said payments]. BASE COMPENSATION PAID to a person acting
as surrogate shall not exceed the duration of the pregnancy and recuper-
ative period of [up to] eight weeks after the birth of any resulting
[children] CHILD. SUPPLEMENTAL COMPENSATION FOR ANY MEDICAL PROCEDURE
ASSOCIATED WITH COMPLICATIONS FROM THE PREGNANCY OR DELIVERY AS
CONFIRMED BY A HEALTH CARE PRACTITIONER, AND ANY ASSOCIATED LOST WAGES,
MAY BE, BUT ARE NOT REQUIRED TO BE, PAID AFTER THE RECUPERATIVE PERIOD
AND UNTIL TWELVE MONTHS AFTER THE BIRTH OF THE CHILD, A STILLBIRTH, A
MISCARRIAGE RESULTING IN TERMINATION OF THE PREGNANCY, OR TERMINATION OF
THE PREGNANCY.
(c) Compensation may not be conditioned upon the purported quality or
genome-related traits of the gametes or embryos.
(d) Compensation may not be conditioned on actual genotypic or pheno-
typic characteristics of the donor OR DONORS or of any resulting chil-
dren.
(e) Compensation to [an] ANY embryo donor shall be limited to storage
fees, transportation costs and attorneys' fees.
§ 16. Section 581-601 of the family court act, as added by section 1
of part L of chapter 56 of the laws of 2020, is amended to read as
follows:
§ 581-601. Applicability. The rights enumerated in this part shall
apply to any person acting as surrogate [in this state] UNDER THE LAWS
OF THE STATE OF NEW YORK, notwithstanding any surrogacy agreement, judg-
ment of parentage, memorandum of understanding, verbal agreement or
contract to the contrary. Except as otherwise provided by law, any writ-
ten or verbal agreement purporting to waive or limit any of the rights
in this part is void as against public policy. The rights enumerated in
this part are not exclusive, and are in addition to any other rights
S. 5107--C 17
provided by law, regulation, or a surrogacy agreement that meets the
requirements of this article.
§ 17. Section 581-603 of the family court act, as added by section 1
of part L of chapter 56 of the laws of 2020, is amended to read as
follows:
§ 581-603. Independent legal counsel. A person acting as surrogate,
AND THE SPOUSE OF THE PERSON ACTING AS SURROGATE, IF APPLICABLE, has the
right to be represented [throughout] FROM THE INITIATION OF the contrac-
tual process and THROUGHOUT the duration of the surrogacy agreement [and
its execution] by independent legal counsel of their own choosing who is
licensed to practice law in the state of New York, to be paid for by the
intended parent or parents.
§ 18. Section 581-604 of the family court act, as added by section 1
of part L of chapter 56 of the laws of 2020, is amended to read as
follows:
§ 581-604. Health insurance and medical costs. A person acting as
surrogate has the right to have [a] comprehensive health insurance
[policy] COVERAGE that covers preconception [care, prenatal care, major
medical treatments, hospitalization and behavioral health care] MEDICAL
EXPENSES AND MEDICAL EXPENSES ASSOCIATED WITH THE PREGNANCY for a [term]
PERIOD that extends throughout the duration of the expected pregnancy
and for twelve months after the birth of the child, a stillbirth, a
miscarriage resulting in termination of pregnancy, or termination of the
pregnancy, to be paid for by the intended parent or parents. [The
intended parent or parents shall also pay for or reimburse the person
acting as surrogate for all co-payments, deductibles and any other out-
of-pocket medical costs associated with pregnancy, childbirth, or post-
natal care that accrue through] IN ADDITION, A PERSON ACTING AS A
SURROGATE SHALL HAVE THE RIGHT TO HAVE THE INTENDED PARENT OR PARENTS
PAY FOR ALL OF THEIR MEDICAL EXPENSES INCURRED IN CONNECTION WITH THE
SURROGACY AGREEMENT, CONTINUING THROUGH THE DURATION OF THE EXPECTED
PREGNANCY AND FOR twelve months after the birth of the child, a still-
birth, a miscarriage RESULTING IN THE TERMINATION OF PREGNANCY, or the
termination of the pregnancy. A person acting as a surrogate who is
receiving no compensation may waive the right to have the intended
parent or parents make such payments or reimbursements.
§ 19. Section 581-605 of the family court act, as added by section 1
of part L of chapter 56 of the laws of 2020, is amended to read as
follows:
§ 581-605. Counseling. A person acting as surrogate has the right to
[obtain a comprehensive health insurance policy that covers behavioral
health care and will cover the cost of psychological] MENTAL HEALTH
counseling to address issues resulting from their participation in [a]
THE surrogacy [and such policy] AGREEMENT, WHICH shall be paid for by AN
INSURANCE POLICY OR BY the intended parent or parents.
§ 20. Section 581-606 of the family court act, as added by section 1
of part L of chapter 56 of the laws of 2020, is amended to read as
follows:
§ 581-606. Life insurance, CONTRACTUAL LIABILITY, OR ACCIDENTAL DEATH
INSURANCE POLICY. A person acting as surrogate has the right to be
provided a life insurance, CONTRACTUAL LIABILITY OR ACCIDENTAL DEATH
INSURANCE policy that takes effect prior to taking any medication or
commencement of treatment to further embryo transfer, provides a minimum
benefit of seven hundred fifty thousand dollars, or the maximum amount
the person acting as surrogate [qualifying] QUALIFIES for [it] IF less
than seven hundred fifty thousand dollars, and [has a term that extends]
S. 5107--C 18
SUCH COVERAGE SHALL EXTEND throughout the duration of the expected preg-
nancy and for twelve months after the birth of the child, a stillbirth,
a miscarriage resulting in termination of pregnancy, or termination of
the pregnancy, with a beneficiary or beneficiaries of [their] THE PERSON
ACTING AS SURROGATE'S choosing, to be paid for by the intended parent or
parents.
§ 21. The family court act is amended by adding a new section 581-705
to read as follows:
§ 581-705. ADJUDICATION. (A) A COURT ADJUDICATING THE PARENTAGE OF A
CHILD CONCEIVED THROUGH ASSISTED REPRODUCTION OR ADJUDICATING THE
ENFORCEABILITY OF AN EMBRYO DISPOSITION AGREEMENT MAY APPLY SECTION
581-202 AND PART THREE OF THIS ARTICLE RETROACTIVELY.
(B) THE PARTICIPANTS IN A SURROGACY AGREEMENT THAT INVOLVED THE
PAYMENT OF COMPENSATION PRIOR TO FEBRUARY FIFTEENTH, TWO THOUSAND TWEN-
TY-ONE SHALL NOT BE ELIGIBLE TO RECEIVE A JUDGMENT OF PARENTAGE PURSUANT
TO SECTION 581-203 OR SECTION 581-406 OF THIS ARTICLE, BUT SHALL BE
ENTITLED TO SEEK A JUDGMENT OF PARENTAGE PURSUANT TO SECTION 581-407 OF
THIS ARTICLE.
(C) THIS ARTICLE SHALL APPLY RETROACTIVELY TO UNCOMPENSATED SURROGACY
AGREEMENTS ENTERED INTO PRIOR TO FEBRUARY FIFTEENTH, TWO THOUSAND TWEN-
TY-TWO.
(D) SURROGACY AGREEMENTS THAT WERE EXECUTED ON OR AFTER FEBRUARY
FIFTEENTH, TWO THOUSAND TWENTY-THREE, BUT BEFORE THE EFFECTIVE DATE OF
THE CHAPTER OF THE LAWS OF TWO THOUSAND TWENTY-FOUR THAT ADDED THIS
SUBDIVISION THAT WERE IN COMPLIANCE WITH THIS ARTICLE BEFORE IT WAS
AMENDED BY THE CHAPTER OF THE LAWS OF TWO THOUSAND TWENTY-FOUR THAT
ADDED THIS SUBDIVISION SHALL BE DEEMED A COMPLIANT SURROGACY AGREEMENT
PURSUANT TO SECTION 581-406 OF THIS ARTICLE REGARDLESS OF ANY DEVIATIONS
FROM THE CURRENT PROVISIONS OF THIS ARTICLE.
§ 22. Paragraph (a) of subdivision 2 of section 123 of the domestic
relations law, as amended by section 5 of part L of chapter 56 of the
laws of 2020, is amended to read as follows:
(a) Any party to a genetic surrogate parenting agreement or the spouse
of any [part] PARTY to a genetic surrogate parenting agreement who
[violate] VIOLATES this section shall be subject to a civil penalty not
to exceed five hundred dollars.
§ 23. Subdivision (c) of section 1400 of the general business law, as
added by section 11 of part L of chapter 56 of the laws of 2020, is
amended to read as follows:
(c) "Surrogacy program" does not include any party to a surrogacy
agreement or any person licensed to practice law and representing a
party to the surrogacy agreement, but does include and is not limited to
any agency, agent, business, or individual engaged in, arranging, or
facilitating transactions contemplated by a surrogacy agreement, regard-
less of whether such agreement ultimately comports with the requirements
of PART FOUR OF article five-C of the family court act. ANY PERSON
LICENSED TO PRACTICE LAW SHALL BE DEEMED A SURROGACY PROGRAM ONLY IN
THOSE CASES WHERE SUCH PERSON IS PROVIDING MATCHING SERVICES TO THE
INTENDED PARENT OR PARENTS AND THE PERSON ACTING AS A SURROGATE.
§ 24. Section 1401 of the general business law, as added by section 11
of part L of chapter 56 of the laws of 2020, is amended to read as
follows:
§ 1401. Surrogacy programs regulated under this article. The
provisions of this article apply to surrogacy programs arranging or
facilitating transactions contemplated by a surrogacy agreement, REGARD-
S. 5107--C 19
LESS OF WHETHER SUCH AGREEMENT ULTIMATELY COMPORTS WITH THE REQUIREMENTS
under part four of article five-C of the family court act if:
(a) The surrogacy program does business in New York state; OR
(b) A person acting as surrogate who is party to a surrogacy agreement
resides in New York state [during the term of] AT THE TIME the surrogacy
agreement[; or
(c) Any medical procedures under the surrogacy agreement are performed
in New York state] IS EXECUTED.
§ 25. Subdivisions (a) and (f) of section 1403 of the general business
law, as added by section 11 of part L of chapter 56 of the laws of 2020,
are amended to read as follows:
(a) Shall keep all funds paid by or on behalf of the intended parent
or parents OTHER THAN FUNDS PAID TO THE SURROGACY PROGRAM FOR ITS FEES,
in an escrow account separate from its operating accounts; and
(f) Shall be licensed to operate in New York state pursuant to regu-
lations promulgated by the department of health in consultation with the
department of financial services[, once such regulations are promulgated
and become effective]; and
§ 26. Subdivision 1 of section 1404 of the general business law, as
added by section 11 of part L of chapter 56 of the laws of 2020, is
amended to read as follows:
1. The department of health, in consultation with the department of
financial services, shall promulgate rules and regulations to implement
the requirements of this article regarding surrogacy programs and
assisted reproduction service providers in a manner that ensures the
safety and health of gamete providers and persons serving as surrogates.
Such regulations shall:
(a) Require surrogacy programs to monitor compliance with [surrogacy
agreements] eligibility [and requirements in state law] CRITERIA FOR THE
INTENDED PARENTS AND PERSONS ACTING AS SURROGATES PURSUANT TO SECTION
581-402 OF THE FAMILY COURT ACT; and
(b) Require the [surrogacy programs and] assisted reproduction service
providers to administer informed consent procedures that comply with
regulations promulgated by the department of health under section twen-
ty-five hundred ninety-nine-cc of the public health law.
§ 27. This act shall take effect immediately.
