S T A T E O F N E W Y O R K
________________________________________________________________________
7674
2021-2022 Regular Sessions
I N A S S E M B L Y
May 19, 2021
___________
Introduced by M. of A. LAVINE -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Judici-
ary
AN ACT to amend the family court act, in relation to parentage and
gestational surrogacy proceedings
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivisions (c), (d), (e) and (g) of section 581-202 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:
(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 to be the parent of the child:
(1) a statement that an intended parent has been a resident of the
state for at least six months or if an intended parent is not a New York
state resident, that the child will be or was born in the 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
(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.
(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 in
the presence of a health care practitioner, either:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09369-02-1
A. 7674 2
(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) 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
(2) in the case of a donation from a known donor, either: a. a record
from the gamete or embryo donor acknowledging the donation and confirm-
ing that the donor has no parental or proprietary interest in the
gametes or embryos. The record shall be signed by the gestating intended
parent and the gamete or embryo donor[. The record may be, but is not
required to be, signed]:
(i) before a notary public, or
(ii) before two witnesses who are not the intended parents, or
(iii) before a health care practitioner; or
b. clear and convincing evidence that the gamete or embryo donor
agreed, prior to conception, with the gestating parent that the donor
has no parental or proprietary interest in the gametes or embryos.
(e)(1) In the absence of evidence pursuant to paragraph two of this
subdivision, 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 pursu-
ant to section three hundred eight of the civil practice law and rules.
SUCH NOTICE SHALL ALSO BE GIVEN TO THE GESTATING INTENDED PARENT, THE
NON-GESTATING INTENDED PARENT, IF ANY, AND THE GESTATING INTENDED
PARENT'S SPOUSE, IF ANY, EACH OF WHOM SHALL BE A NECESSARY PARTY. 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 with reasonable effort, notice may be given, without prior court
order therefore, at least twenty days prior to the proceeding by regis-
tered or certified mail directed to the donor's last known address.
Notice by publication shall not be required to be given to a donor enti-
tled to notice pursuant to the provisions of this section.
(2) Notwithstanding the above, where 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.
(g) Where the requirements of subdivision (c) of this section are met
or where the court finds the intended parent to be a parent under subdi-
vision [(e)] (F) of this section, the court shall issue a judgment of
parentage:
(1) declaring, that 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, ordering that the donor is not a parent of
the child; [and]
(4) ordering that:
(i) 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 commission-
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er, 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) 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 department of
health in conformity with the court order. If an original birth certif-
icate has already been issued, the appropriate department of health will
amend the birth certificate in an expedited manner and seal the previ-
ously 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
(5) IF THE JUDGMENT OF PARENTAGE IS ISSUED PRIOR TO THE BIRTH OF THE
CHILD, ORDERING THE PETITIONER, 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 WRITING ON A FORM
TO BE PRESCRIBED BY THE CHIEF ADMINISTRATOR OF THE COURTS.
§ 2. Subdivisions (b) and (c) of section 581-203 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:
(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, IF ANY, and all intended parents are necessary parties.
(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 has been] PARENT WAS a resident of the state
for at least six months at the time the surrogacy agreement was executed
AND, IN CASES IN WHICH THERE ARE TWO INTENDED PARENTS, ONLY ONE OF WHOM
WAS A RESIDENT OF THE STATE FOR AT LEAST SIX MONTHS PRIOR TO THE
EXECUTION OF THE AGREEMENT, THEN A STATEMENT THAT THE PERSON ACTING AS
SURROGATE HAD BEEN A RESIDENT OF THE STATE FOR AT LEAST SIX MONTHS AT
THE TIME THE 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
that 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.
§ 3. 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.
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§ 4. Subdivision (a) of 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:
(a) it shall be in a [signed] record [verified or executed before two
non-party witnesses by:
(1) each intended parent, and
(2) the person acting as surrogate, and the spouse of the person
acting as surrogate, if any, unless:
(i) the person acting as surrogate and the spouse of the person acting
as surrogate 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) have been living separate and apart for at least three years
prior to execution of the surrogacy agreement] SUBSCRIBED BY THE PARTIES
AND ACKNOWLEDGED IN THE FORM REQUIRED TO ENTITLE A DEED TO BE RECORDED;
§ 5. 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
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.
(D) IN ANY PROCEEDING INITIATED PURSUANT TO THIS SECTION, WHERE THE
SUPREME COURT DETERMINES THAT THE DISPUTED INVOLVES BOTH CONTRACTUAL AND
PARENTAGE ISSUES, THE COURT MAY ORDER THAT THE PORTION OF THE PROCEEDING
RAISING PARENTAGE ISSUES MAY BE TRANSFERRED TO THE FAMILY OR SURROGATE'S
COURT.
§ 6. This act shall take effect immediately.