Bill Text: NY A04921 | 2023-2024 | General Assembly | Amended
Bill Title: Relates to the requirements of surrogacy programs and criteria for surrogacy arrangements.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced) 2024-05-02 - advanced to third reading cal.424 [A04921 Detail]
Download: New_York-2023-A04921-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 4921--C 2023-2024 Regular Sessions IN ASSEMBLY February 27, 2023 ___________ Introduced by M. of A. PAULIN -- read once and referred to the Committee on Judiciary -- reported and referred to the Committee on Rules -- Rules Committee discharged, bill amended, ordered reprinted as amended and recommitted to the Committee on Rules -- recommitted to the Committee on Judiciary in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- again reported from said committee with amendments, ordered reprinted as amended and recommitted to said committee AN ACT to amend the family court act, the domestic relations law and the general business law, in relation to surrogacy programs and agreements 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05288-10-4A. 4921--C 2 1 include a person who is a parent under part three of this article. Donor 2 also includes an individual who had dispositional control of an embryo 3 or gametes who then transfers dispositional control and releases all 4 present and future parental and inheritance rights and obligations to a 5 resulting child. 6 (e) "Embryo" means a cell or group of cells containing a diploid 7 complement of chromosomes or group of such cells, not a gamete or 8 gametes, that has the potential to develop into a live born human being 9 if transferred into the body of a person under conditions in which 10 gestation may be reasonably expected to occur. 11 (f) "Embryo transfer" means all medical and laboratory procedures that 12 are necessary to effectuate the transfer of an embryo into the uterine 13 cavity. 14 (g) "Gamete" means a cell containing a haploid complement of DNA that 15 has the potential to form an embryo when combined with another gamete. 16 Sperm and eggs shall be considered gametes. A human gamete used or 17 intended for reproduction may not contain nuclear DNA that has been 18 deliberately altered, or nuclear DNA from one human combined with the 19 cytoplasm or cytoplasmic DNA of another human being. 20 (h) "Health care practitioner" means an individual licensed or certi- 21 fied under title eight of the education law, or a similar law of another 22 state or country, acting within his or her scope of practice. 23 (i) "Independent escrow agent" means someone other than the parties to 24 a surrogacy agreement and their attorneys. An independent escrow agent 25 can, but need not, be a surrogacy program, provided such surrogacy 26 program is owned [or managed] by an attorney licensed to practice law in 27 the state of New York. If such independent escrow agent is not an attor- 28 ney owned surrogacy program, it shall be [licensed,] bonded and insured. 29 [(i) "Surrogacy agreement" is an agreement between at least one30intended parent and a person acting as surrogate intended to result in a31live birth where the child will be the legal child of the intended32parents.] 33 (j) "In vitro fertilization" means the formation of a human embryo 34 outside the human body. 35 (k) "Intended parent" is an individual who manifests the intent to be 36 legally bound as the parent of a child resulting from assisted reprod- 37 uction or a surrogacy agreement, provided he or she meets the require- 38 ments of this article. 39 (l) "Parent" as used in this article means an individual with a 40 parent-child relationship created or recognized under this act or other 41 law. 42 (m) "Participant" is an individual who either provides a gamete that 43 is used in assisted reproduction, is an intended parent, is a person 44 acting as surrogate, or is the spouse of an intended parent or person 45 acting as surrogate. 46 (n) "Person acting as surrogate" means an adult person, not an 47 intended parent, who enters into a surrogacy agreement to bear a child 48 who will be the legal child of the intended parent or parents so long as 49 the person acting as surrogate has not provided the egg used to conceive 50 the resulting child. 51 [(k) "Health care practitioner" means an individual licensed or certi-52fied under title eight of the education law, or a similar law of another53state or country, acting within his or her scope of practice.54(l) "Intended parent" is an individual who manifests the intent to be55legally bound as the parent of a child resulting from assisted reprod-A. 4921--C 3 1uction or a surrogacy agreement provided he or she meets the require-2ments of this article.3(m) "In vitro fertilization" means the formation of a human embryo4outside the human body.5(n) "Parent" as used in this article means an individual with a6parent-child relationship created or recognized under this act or other7law.8(o) "Participant" is an individual who either: provides a gamete that9is used in assisted reproduction, is an intended parent, is a person10acting as surrogate, or is the spouse of an intended parent or person11acting as surrogate.12(p)] (o) "Record" means information inscribed in a tangible medium or 13 stored in an electronic or other medium that is retrievable in perceiva- 14 ble form. 15 [(q)] (p) "Retrieval" means the procurement of eggs or sperm from a 16 gamete provider. 17 [(r)] (q) "Spouse" means an individual married to another, or who has 18 a legal relationship entered into under the laws of the United States or 19 of any state, local or foreign jurisdiction, which is substantially 20 equivalent to a marriage, including a civil union or domestic partner- 21 ship. 22 [(s)] (r) "State" means a state of the United States, the District of 23 Columbia, Puerto Rico, the United States Virgin Islands, or any territo- 24 ry or insular possession subject to the jurisdiction of the United 25 States. 26 (s) "Surrogacy agreement" means an agreement between at least one 27 intended parent and a person acting as surrogate intended to result in a 28 live birth where the child will be the legal child of the intended 29 parents. 30 (t) "Transfer" means the placement of an embryo or gametes into the 31 body of a person with the intent to achieve pregnancy and live birth. 32 § 2. Section 581-202 of the family court act, as added by section 1 of 33 part L of chapter 56 of the laws of 2020, is amended to read as follows: 34 § 581-202. Proceeding for judgment of parentage of a child conceived 35 through assisted reproduction. (a) A proceeding for a judgment of 36 parentage with respect to a child conceived through assisted reprod- 37 uction may be commenced: 38 (1) if [the] an intended parent or child resides in New York state, in 39 the county where the intended parent resides any time after pregnancy is 40 achieved or in the county where the child was born or resides or in the 41 county where the birth is intended to occur; or 42 (2) if [the] neither an intended parent [and] nor the child [do not] 43 reside in New York state, up to ninety days after the birth of the child 44 in the county where the child was born. 45 (b) The petition for a judgment of parentage must be verified. 46 (c) Where [a petition includes the following truthful] the court finds 47 the following statements in the petition to be true, the court shall 48 adjudicate the intended parent or parents to be the parent or parents of 49 the child without the need for additional proceedings or documentation: 50 (1) a statement that an intended parent or child has been a resident 51 of the state for at least six months, or if an intended parent or child 52 is not a New York state resident, that the child [will be or] was born 53 in [the] New York state within ninety days of filing; and 54 (2) a statement from the gestating intended parent that the gestating 55 intended parent became pregnant as a result of assisted reproduction; 56 andA. 4921--C 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 to a gamete or embryo storage facility 12 or were donated in the presence of a health care practitioner, either: 13 (i) a statement or documentation from the gamete or embryo storage 14 facility or health care practitioner stating or demonstrating that such 15 gametes or embryos [were anonymously donated or] had previously been 16 released; [or] 17 (ii) a record from the gamete or embryo donor or donors evidencing 18 intent to release the gametes or embryos; or 19 (iii) clear and convincing evidence that the gamete or embryo donor 20 [intended to donate gametes or embryos anonymously or intended to21release such gametes or embryos to a gamete or embryo storage facility22or health care practitioner;] or donors confirmed, prior to donation, 23 that the donor or donors would have no parental or proprietary interest 24 in the gametes or embryos; 25 (2) [in the case of a donation from a known donor, either: a.] where 26 the gametes or embryos were not released to a gamete or embryo storage 27 facility or donated in the presence of a health care practitioner, 28 either: 29 (i) a record from the gamete or embryo donor acknowledging the 30 donation and confirming that the donor [has] or donors shall have no 31 parental or proprietary interest in the gametes or embryos. The record 32 shall be signed by the [gestating] intended parent or parents and the 33 gamete or embryo donor[. The record may be, but is not required to be,34signed] or donors: 35 [(i)] (A) before a notary public, or 36 [(ii)] (B) before two witnesses who are not the intended parents, or 37 [(iii)] (C) before a health care practitioner; or 38 [b.] (ii) clear and convincing evidence that the gamete or embryo 39 donor or donors agreed, prior to [conception] the gametes or embryos 40 being used for assisted reproduction, [with the gestating parent] that 41 the donor [has] or donors would have no parental or proprietary interest 42 in the gametes or embryos. 43 (3) Except for those agreements executed in compliance with section 44 581-306 of this article, this subdivision shall not apply where the 45 person providing the gametes or embryos is the spouse of the intended 46 parent. 47 (e) [(1)] In the absence of evidence pursuant to subparagraphs (i) and 48 (ii) of paragraph one and subparagraph (i) of paragraph two of [this] 49 subdivision (d) of this section, notice shall be given to the donor at 50 least twenty days prior to the date set for the proceeding to determine 51 the existence of donative intent by delivery of a copy of the petition 52 and notice pursuant to section three hundred eight of the civil practice 53 law and rules. If an intended parent or an intended parent's spouse is 54 not a petitioner, such notice shall also be given to such person who 55 shall be a necessary party unless the intended parent proceeded without 56 the participation of their spouse in compliance with subdivision (b) ofA. 4921--C 5 1 section 581-305 or section 581-306 of this article. Upon a showing to 2 the court, by affidavit or otherwise, on or before the date of the 3 proceeding or within such further time as the court may allow, that 4 personal service cannot be effected at the [donor's] last known address 5 or addresses of the donor or donors, and/or the non-petitioning intended 6 parent, if any, with reasonable effort, notice may be given, without 7 prior court order therefore, at least twenty days prior to the proceed- 8 ing by registered or certified mail directed to [the donor's] such last 9 known address or addresses. Notice by publication shall not be required 10 to be given to [a donor] anyone entitled to notice pursuant to the 11 provisions of this section. 12 [(2)] Notwithstanding the above, where there is evidence that sperm is 13 provided under the supervision of a health care practitioner to someone 14 other than the sperm provider's intimate partner or spouse without a 15 record of the sperm provider's intent to parent, notice is not required. 16 (f) In cases not covered by subdivision (c) of this section, the court 17 shall adjudicate the parentage of the child consistent with part three 18 of this article. 19 (g) Where the requirements of subdivision (c) of this section are met 20 or where the court finds the intended parent or parents to be a parent 21 under subdivision [(e)] (f) of this section, the court shall issue a 22 judgment of parentage: 23 (1) declaring[, that] the intended parent or parents to be the legal 24 parent or parents of the child immediately upon the birth of the child[,25the intended parent or parents is or are the legal parent or parents of26the child]; and 27 (2) ordering the intended parent or parents to assume responsibility 28 for the maintenance and support of the child immediately upon the birth 29 of the child; and 30 (3) if there is a donor or donors, ordering that [the] any donor is 31 not a parent of the child; and 32 (4) ordering that: 33 (i) [Pursuant] The hospital birth registrar shall report the parentage 34 of the child on the record of live birth in conformity with the judgment 35 of parentage, if the judgment of parentage is issued before the birth of 36 the child; and 37 (ii) If a change to the child's birth certificate is necessitated by 38 the judgment of parentage, then pursuant to section two hundred fifty- 39 four of the judiciary law, the clerk of the court shall transmit to the 40 state commissioner of health, or for a person born in New York city, to 41 the commissioner of health of the city of New York, on a form prescribed 42 by the commissioner, a written notification of such entry together with 43 such other facts as may assist in identifying the birth record of the 44 person whose parentage was in issue and, if such person whose parentage 45 has been determined is under eighteen years of age, the clerk shall also 46 transmit forthwith to the registry operated by the department of social 47 services pursuant to section three hundred seventy-two-c of the social 48 services law a notification of such determination; and 49 [(ii)] (iii) Pursuant to section forty-one hundred thirty-eight of the 50 public health law and NYC Public Health Code section 207.05 that upon 51 receipt of a judgment of parentage the local registrar where a child is 52 born will report the parentage of the child to the appropriate depart- 53 ment of health in conformity with the court order. If an original birth 54 certificate has already been issued, the appropriate department of 55 health will amend the birth certificate in an expedited manner and seal 56 the previously issued birth certificate except that it may be renderedA. 4921--C 6 1 accessible to the child at eighteen years of age or the legal parent or 2 parents; and 3 (5) if the judgment of parentage is issued prior to the birth of the 4 child, ordering the petitioner or petitioners, within fourteen days of 5 such birth, to provide the court with notification thereof, together 6 with such other facts as may assist in identifying the birth record of 7 the child whose parentage was in issue. Such notification shall be in 8 writing on a form to be prescribed by the chief administrator of the 9 courts. The court shall thereafter issue an amended judgment of parent- 10 age that includes the child's name as it appears on the child's birth 11 certificate and the child's date of birth. 12 § 3. Section 581-203 of the family court act, as added by section 1 of 13 part L of chapter 56 of the laws of 2020, is amended to read as follows: 14 § 581-203. Proceeding for judgment of parentage of a child conceived 15 pursuant to a surrogacy agreement. (a) The proceeding may be commenced 16 (1) in any county where an intended parent resided any time after the 17 surrogacy agreement was executed; or (2) in the county where the child 18 was born or resides or in the county where the birth is intended to 19 occur; or (3) in the county where the surrogate resided any time after 20 the surrogacy agreement was executed. 21 (b) The proceeding may be commenced at any time after [the surrogacy22agreement has been executed] pregnancy is achieved and the person acting 23 as surrogate, the spouse of the person acting as surrogate, if any, 24 donors for whom there is not proof of donative intent as set forth in 25 subdivision (d) of section 581-202 of this part, and all intended 26 parents are necessary parties. The service provisions of subdivision 27 (e) of section 581-202 of this part shall be applicable to donors enti- 28 tled to notice pursuant to this provision. 29 (c) The petition for a judgment of parentage must be verified and 30 include the following: 31 (1) a statement that the person acting as surrogate or at least one 32 [of the] intended [parents] parent has been a resident of the state for 33 at least six months at the time the surrogacy agreement was executed; 34 and 35 (2) a certification from the attorney representing the intended parent 36 or parents and the attorney representing the person acting as surrogate 37 and the spouse of the person acting as surrogate, if applicable, that 38 each of the requirements of part four of this article have been met; and 39 (3) a statement from all parties to the surrogacy agreement that they 40 knowingly and voluntarily entered into the surrogacy agreement and that 41 the parties are jointly requesting the judgment of parentage; and 42 (4) a copy of the executed surrogacy agreement. 43 (d) Where the court finds the statements required by subdivision (c) 44 of this section to be true, the court shall issue a judgment of parent- 45 age, without additional proceedings or documentation: 46 (1) declaring, that upon the birth of the child born during the term 47 of the surrogacy agreement, the intended parent or parents are the only 48 legal parent or parents of the child; 49 (2) declaring, that upon the birth of the child born during the term 50 of the surrogacy agreement, the person acting as surrogate, and the 51 spouse of the person acting as surrogate, if [any] applicable, is not 52 [the] a legal parent of the child; 53 (3) declaring that upon the birth of the child born during the term of 54 the surrogacy agreement, [the donors] any donor, if [any] applicable, 55 [are] is not [the parents] a parent of the child;A. 4921--C 7 1 (4) ordering the person acting as surrogate and the spouse of the 2 person acting as surrogate, if any, to transfer the child to the 3 intended parent or parents if this has not already occurred; 4 (5) ordering the intended parent or parents to assume responsibility 5 for the maintenance and support of the child immediately upon the birth 6 of the child; and 7 (6) ordering that: 8 (i) [Pursuant] The hospital birth registrar shall report the parentage 9 of the child on the record of live birth in conformity with the judgment 10 of parentage, if the judgment of parentage is issued before the birth of 11 the child; and 12 (ii) If a change to the child's birth certificate is necessitated by 13 the judgment of parentage, then pursuant to section two hundred fifty- 14 four of the judiciary law, the clerk of the court shall transmit to the 15 state commissioner of health, or for a person born in New York city, to 16 the commissioner of health of the city of New York, on a form prescribed 17 by the commissioner, a written notification of such entry together with 18 such other facts as may assist in identifying the birth record of the 19 person whose parentage was in issue and, if the person whose parentage 20 has been determined is under eighteen years of age, the clerk shall also 21 transmit to the registry operated by the department of social services 22 pursuant to section three hundred seventy-two-c of the social services 23 law a notification of the determination; and 24 [(ii)] (iii) Pursuant to section forty-one hundred thirty-eight of the 25 public health law and NYC Public Health Code section 207.05 that upon 26 receipt of a judgement of parentage the local registrar where a child is 27 born will report the parentage of the child to the appropriate depart- 28 ment of health in conformity with the court order. If an original birth 29 certificate has already been issued, the appropriate department of 30 health will amend the birth certificate in an expedited manner and seal 31 the previously issued birth certificate except that it may be rendered 32 accessible to the child at eighteen years of age or the legal parent or 33 parents; and 34 (7) if the judgment of parentage is issued prior to the birth of the 35 child, ordering the petitioner or petitioners, within seven days of such 36 birth, to provide the court with notification thereof, together with 37 such other facts as may assist in identifying the birth record of the 38 child whose parentage was in issue. Such notification shall be in writ- 39 ing on a form to be prescribed by the chief administrator of the courts. 40 The court shall thereafter issue an amended judgment of parentage that 41 includes the child's name as it appears on the child's birth certificate 42 and the child's date of birth. 43 (e) In the event the certification required by paragraph two of subdi- 44 vision (c) of this section cannot be made because of a technical or 45 non-material deviation from the requirements of this article; the court 46 may nevertheless enforce the agreement and issue a judgment of parentage 47 if the court determines the agreement is in substantial compliance with 48 the requirements of this article. In the event that any other require- 49 ments of subdivision (c) of this section are not met, the court shall 50 determine parentage according to part four of this article. 51 § 4. Section 581-205 of the family court act, as added by section 1 of 52 part L of chapter 56 of the laws of 2020, is amended to read as follows: 53 § 581-205. Inspection of records. Court records relating to 54 proceedings under this article shall be sealed, provided, however, that 55 the office of temporary and disability assistance, a child support unit 56 of a social services district or a child support agency of another stateA. 4921--C 8 1 providing child support services pursuant to title IV-d of the federal 2 social security act, when a party to a related support proceeding and to 3 the extent necessary to provide child support services or for the admin- 4 istration of the program pursuant to title IV-d of the federal social 5 security act, may obtain a copy of a judgment of parentage. The parties 6 to the proceeding and the child shall have the right to inspect and make 7 copies of the entire court record, including, but not limited to, the 8 name of the person acting as surrogate and any known [donors] donor. 9 Notwithstanding any other provision of law, the county clerk or the 10 clerk of the supreme, surrogate's or family court shall not display the 11 surname of the child or parties in any caption, document, index, minutes 12 or other record available to the public, whether filed in hard copy or 13 electronically. 14 § 5. Section 581-206 of the family court act, as added by section 1 of 15 part L of chapter 56 of the laws of 2020, is amended to read as follows: 16 § 581-206. Jurisdiction, and exclusive continuing jurisdiction. (a) 17 Proceedings pursuant to this article may be instituted in [the] New York 18 state supreme [or] court, family court or surrogates court. 19 (b) The court conducting a proceeding under this article shall have 20 exclusive, continuing jurisdiction of all matters relating to the deter- 21 mination of parentage until the child attains the age of one hundred 22 eighty days, whereafter continuing jurisdiction shall be determined by 23 the jurisdictional standards of section seventy-six of the domestic 24 relations law. 25 (c) Subject to the jurisdictional standards of section seventy-six of 26 the domestic relations law, the court conducting a proceeding under this 27 article has exclusive, continuing jurisdiction of all matters relating 28 to the determination of parentage until the child attains the age of one 29 hundred eighty days. 30 § 6. The family court act is amended by adding a new section 581-207 31 to read as follows: 32 § 581-207. Certified copy of judgment of parentage. Upon issuing a 33 judgment of parentage pursuant to section 581-202 or 581-203 of this 34 part, the issuing court shall provide a certified copy of such judgment 35 to the intended parent or parents. 36 § 7. Subdivision (b) of section 581-303 of the family court act, as 37 added by section 1 of part L of chapter 56 of the laws of 2020, is 38 amended to read as follows: 39 (b) The court shall issue a judgment of parentage pursuant to this 40 article upon application by any [participant] person authorized to file 41 a petition pursuant to subdivision (c) of section 581-201 of this arti- 42 cle. 43 § 8. Paragraph 3 of subdivision (a) and subdivision (d) of section 44 581-306 of the family court act, as added by section 1 of part L of 45 chapter 56 of the laws of 2020, are amended to read as follows: 46 (3) where the intended parents are married, transfer of legal rights 47 and dispositional control [occurs only] becomes effective upon: (i) 48 living separate and apart pursuant to a decree or judgment of separation 49 or pursuant to a written agreement of separation subscribed by the 50 parties thereto and acknowledged or proved in the form required to enti- 51 tle a deed to be recorded; or (ii) living separate and apart at least 52 three years; or (iii) divorce; or (iv) death. 53 (d) An embryo disposition agreement [or advance directive] that is not 54 in compliance with subdivision (a) of this section may still be found to 55 be enforceable by the court after balancing the respective interests of 56 the parties except that the intended parent who divested him or herselfA. 4921--C 9 1 of legal rights and dispositional control may not be declared to be a 2 parent for any purpose without his or her consent. The intended parent 3 awarded legal rights and dispositional control of the embryos shall, in 4 this instance, be declared to be the only parent of the child. 5 § 9. Section 581-402 of the family court act, as added by section 1 of 6 part L of chapter 56 of the laws of 2020, is amended to read as follows: 7 § 581-402. Eligibility to enter surrogacy agreement. (a) A person 8 acting as surrogate shall be eligible to enter into an enforceable 9 surrogacy agreement under this article if the person acting as surrogate 10 has met the following requirements at the time the surrogacy agreement 11 is executed: 12 (1) the person acting as surrogate is at least twenty-one years of 13 age; 14 (2) the person acting as surrogate: (i) is a United States citizen or 15 a lawful permanent resident, and[, where at least one intended parent is16not] (ii) has been a resident of New York state for at least six 17 months[, was] if neither intended parent has been a resident of New York 18 state for at least six months; 19 (3) the person acting as surrogate has not provided the egg used to 20 conceive the resulting child; 21 (4) the person acting as surrogate has completed a medical evaluation 22 with a health care practitioner relating to the anticipated pregnancy. 23 Such medical evaluation shall include a screening of the medical history 24 of the potential surrogate including known health conditions that may 25 pose risks to the potential surrogate or embryo during pregnancy; 26 (5) the person acting as surrogate has given informed consent [for the27surrogacy] to undergo the medical procedures after the licensed health 28 care practitioner [inform] has informed them of the medical risks of 29 surrogacy including the possibility of multiple births, risk of medica- 30 tions taken for the surrogacy, risk of pregnancy complications, psycho- 31 logical and psychosocial risks, and impacts on their personal lives; 32 (6) the person acting as surrogate, and the spouse of the person 33 acting as surrogate, if applicable, have been represented [throughout] 34 from the initiation of the contractual process and throughout the dura- 35 tion of the [contract and its execution] surrogacy agreement by inde- 36 pendent legal counsel of their own choosing who is licensed to practice 37 law in the state of New York which shall be paid for by the intended 38 parent or parents, except that a person acting as surrogate who is 39 receiving no compensation may waive the right to have the intended 40 parent or parents pay the fee for such legal counsel. Where the 41 [intended parent or parents are paying for the] independent legal coun- 42 sel of the person acting as surrogate, and the spouse of the person 43 acting as surrogate, if applicable, is paid by the intended parent or 44 parents, a separate retainer agreement shall be prepared clearly stating 45 that such legal counsel will only represent the person acting as surro- 46 gate and the spouse of the person acting as surrogate, if applicable, in 47 all matters pertaining to the surrogacy agreement, that such legal coun- 48 sel will not offer legal advice to any other parties to the surrogacy 49 agreement, and that the attorney-client relationship lies with the 50 person acting as surrogate and the spouse of the person acting as surro- 51 gate, if applicable; 52 (7) the person acting as surrogate has or the surrogacy agreement 53 stipulates that the person acting as surrogate will obtain [a] compre- 54 hensive health insurance [policy] coverage that takes effect after the 55 person acting as surrogate has been deemed medically eligible but prior 56 to taking any medication or commencing treatment to further embryoA. 4921--C 10 1 transfer that covers [preconception care, prenatal care, major medical2treatments, hospitalization, and behavioral health care, and the compre-3hensive policy has a term that extends throughout the duration of the4expected pregnancy and for twelve months after the birth of the child, a5stillbirth, a miscarriage resulting in termination of pregnancy, or6termination of the pregnancy; the policy shall be paid for, whether7directly or through reimbursement or other means, by the intended parent8or parents on behalf of the person acting as surrogate pursuant to the9surrogacy agreement, except that a person acting as surrogate who is10receiving no compensation may waive the right to have the intended11parent or parents pay for the health insurance policy. The intended12parent or parents shall also pay for or reimburse the person acting as13surrogate for all co-payments, deductibles and any other out-of-pocket14medical costs associated with preconception, pregnancy, childbirth, or15postnatal care, that accrue through twelve months after the birth of the16child, a stillbirth, a miscarriage, or termination of the pregnancy. A17person acting as surrogate who is receiving no compensation may waive18the right to have the intended parent or parents make such payments or19reimbursements]: 20 (i) preconception care. The surrogacy agreement shall state that the 21 intended parent or parents will be responsible for all medical costs of 22 the person acting as surrogate associated with their preconception care 23 including but not limited to medical and psychological screenings, medi- 24 cations, embryo transfer procedure, monitoring prior and subsequent to 25 the embryo transfer procedure and any complications associated with the 26 foregoing. The intended parent or parents shall be responsible for the 27 costs of any such complications either through insurance or by placing 28 and maintaining sufficient funds in escrow to cover such expenses. If 29 the surrogacy agreement is terminated after the person acting as surro- 30 gate has taken any medication or commenced treatment to further embryo 31 transfer but before pregnancy is achieved, such funds shall remain in 32 escrow for a minimum period of six months from the date the surrogacy 33 agreement is terminated; 34 (ii) medical expenses associated with pregnancy. The person acting as 35 surrogate has, or the surrogacy agreement shall stipulate that the 36 person acting as surrogate will obtain, comprehensive health insurance 37 coverage, via one or more insurance policies, prior to or immediately 38 upon confirmation of pregnancy that covers prenatal care, major medical 39 treatments, hospitalization, behavioral health care, childbirth and 40 postnatal care, and that such comprehensive coverage must be in place 41 throughout the duration of the pregnancy and for twelve months after the 42 birth of the child, a stillbirth, a miscarriage resulting in termination 43 of the pregnancy, or termination of the pregnancy. The policy shall be 44 paid for, whether directly or through reimbursement or other means, by 45 the intended parent or parents on behalf of the person acting as surro- 46 gate to the extent that there is an additional cost to the person acting 47 as surrogate for such health insurance coverage. The intended parent or 48 parents shall also pay for or reimburse the person acting as surrogate 49 for all co-payments, deductibles and any other out-of-pocket medical 50 costs associated with pregnancy, childbirth, or postnatal care, that 51 accrue through twelve months after the birth of the child, a stillbirth, 52 a miscarriage resulting in termination of the pregnancy, or termination 53 of the pregnancy; and 54 (iii) uncompensated surrogacy agreements. A person acting as surrogate 55 who is receiving no compensation may waive the right to have the 56 intended parent or parents make the payments set forth in this section;A. 4921--C 11 1 (8) the surrogacy agreement must provide that the intended parent or 2 parents shall [procure and] pay for a life insurance, contractual 3 liability or accidental death insurance policy for the person acting as 4 surrogate that takes effect prior to taking any medication or the 5 commencement of medical procedures to further embryo transfer, provides 6 a minimum benefit of seven hundred fifty thousand dollars or the maximum 7 amount the person acting as surrogate qualifies for if it is less than 8 seven hundred fifty thousand dollars, and [has a term that extends] such 9 coverage shall extend throughout the duration of the expected pregnancy 10 and for twelve months after the birth of the child, a stillbirth, a 11 miscarriage resulting in termination of pregnancy, or termination of the 12 pregnancy, with a beneficiary or beneficiaries of [their] the person 13 acting as surrogate's choosing. The policy shall be paid for, whether 14 directly or through reimbursement or other means, by the intended parent 15 or parents on behalf of the person acting as surrogate pursuant to the 16 surrogacy agreement, except that a person acting as surrogate who is 17 receiving no compensation may waive the right to have the intended 18 parent or parents pay for the life insurance, contractual liability or 19 accidental death insurance policy but not the requirement to have such a 20 policy; and 21 (9) the person acting as surrogate meets all other requirements deemed 22 appropriate by the commissioner of health regarding the health of the 23 prospective surrogate. 24 (b) The intended parent or parents shall be eligible to enter into an 25 enforceable surrogacy agreement under this article if he, she or they 26 have met the following requirements at the time the surrogacy agreement 27 was executed: 28 (1) at least one intended parent is: 29 (i) a United States citizen or a lawful permanent resident; and 30 [was] (ii) has been a resident of New York state for at least six 31 months if the person acting as surrogate has not been a resident of the 32 state of New York for at least six months; 33 (2) [the intended parent or parents has] they have been represented 34 [throughout] from the initiation of the contractual process and through- 35 out the duration of the [contract and its execution] surrogacy agreement 36 by independent legal counsel of his, her or their own choosing who is 37 licensed to practice law in the state of New York; and 38 (3) [he or she is] they are an adult person who is not in a spousal 39 relationship, or [adult] any adults who are spouses together, or any 40 [two] adults who are intimate partners together, except an adult in a 41 spousal relationship is eligible to enter into an enforceable surrogacy 42 agreement without [his or her] their spouse if: 43 (i) they are living separate and apart pursuant to a decree or judg- 44 ment of separation or pursuant to a written agreement of separation 45 subscribed by the parties thereto and acknowledged or proved in the form 46 required to entitle a deed to be recorded; or 47 (ii) they have been living separate and apart for at least three years 48 prior to execution of the surrogacy agreement. 49 (c) where the spouse of an intended parent is not a required party to 50 the agreement, the spouse is not an intended parent and shall not have 51 rights or obligations to the child. 52 § 10. Section 581-403 of the family court act, as added by section 1 53 of part L of chapter 56 of the laws of 2020, is amended to read as 54 follows:A. 4921--C 12 1 § 581-403. Requirements of surrogacy agreement. A surrogacy agreement 2 shall be deemed to have satisfied the requirements of this article and 3 be enforceable if it meets the following requirements: 4 (a) it shall be in a [signed] record [verified or executed before] 5 with each signature either notarized or witnessed by two [non-party6witnesses] non-parties and signed by: 7 (1) each intended parent, and 8 (2) the person acting as surrogate, and the spouse of the person 9 acting as surrogate, if [any] applicable, unless: 10 (i) [the person acting as surrogate and the spouse of the person11acting as surrogate] they are living separate and apart pursuant to a 12 decree or judgment of separation or pursuant to a written agreement of 13 separation subscribed by the parties thereto and acknowledged or proved 14 in the form required to entitle a deed to be recorded; or 15 (ii) they have been living separate and apart for at least three years 16 prior to execution of the surrogacy agreement; 17 (b) it shall be executed prior to the person acting as surrogate 18 taking any medication or the commencement of medical procedures in the 19 furtherance of embryo transfer, provided the person acting as surrogate 20 shall have provided informed consent to undergo such medical treatment 21 or medical procedures prior to executing the agreement; 22 (c) it shall be executed by a person acting as surrogate meeting the 23 eligibility requirements of subdivision (a) of section 581-402 of this 24 part and by the spouse of the person acting as surrogate, if applicable, 25 unless the signature of the spouse of the person acting as surrogate is 26 not required as set forth in this section; 27 (d) it shall be executed by intended parent or parents who met the 28 eligibility requirements of subdivision (b) of section 581-402 of this 29 part; 30 (e) the person acting as surrogate and the spouse of the person acting 31 as surrogate, if applicable, and the intended parent or parents shall 32 have been represented [throughout] from the initiation of the contractu- 33 al process and the surrogacy agreement states that they shall be repres- 34 ented throughout the duration of the [contract and its execution] surro- 35 gacy agreement by separate, independent legal counsel of their own 36 choosing, who is licensed to practice law in the state of New York; 37 (f) if the surrogacy agreement provides for the payment of compen- 38 sation to the person acting as surrogate, the funds for base compen- 39 sation and reasonable anticipated additional expenses shall have been 40 placed in escrow with an independent escrow agent, who consents to the 41 jurisdiction of New York courts for all proceedings related to the 42 enforcement of the escrow agreement, prior to the person acting as 43 surrogate commencing [with] any medical procedure other than medical 44 evaluations necessary to determine the person acting as surrogate's 45 eligibility; 46 (g) the surrogacy agreement must include information disclosing how 47 the intended parent or parents will cover the medical expenses of the 48 person acting as surrogate and the child. The surrogacy agreement shall 49 specify the amount that the intended parent or parents shall place in 50 escrow to cover such reasonable anticipated costs including precon- 51 ception medical care and extending throughout the duration of the 52 expected surrogacy agreement. If it is anticipated that comprehensive 53 health care coverage [is] will be used to cover the medical expenses for 54 the person acting as surrogate, the [disclosure shall include a review55and summary of the] health care policy provisions related to coverage 56 and exclusions for the person acting as [surrogate's] surrogate shall beA. 4921--C 13 1 reviewed and summarized in relation to the anticipated pregnancy prior 2 to such policy being used to cover any of the person acting as surro- 3 gate's medical expenses incurred pursuant to the surrogacy agreement; 4 and 5 (h) [it] the surrogacy agreement shall include the following informa- 6 tion: 7 (1) the date, city and state where the surrogacy agreement was 8 executed; 9 (2) the first and last names of and contact information for the 10 intended parent or parents and of the person acting as surrogate; 11 (3) the first and last names of and contact information for the 12 persons from which the gametes originated, if known. The agreement shall 13 specify whether the gametes provided were eggs, sperm, or embryos; 14 (4) the name of and contact information for the licensed and regis- 15 tered surrogacy program [handling the] arranging or facilitating the 16 transactions contemplated by the surrogacy agreement, if any; and 17 (5) the name of and contact information for the attorney representing 18 the person acting as surrogate, and the spouse of the person acting as 19 surrogate, if applicable, and the attorney representing the intended 20 parent or parents; and 21 (i) the surrogacy agreement must comply with all of the following 22 terms: 23 (1) As to the person acting as surrogate and the spouse of the person 24 acting as surrogate, if applicable: 25 (i) the person acting as surrogate agrees to undergo embryo transfer 26 and attempt to carry and give birth to the child; 27 (ii) the person acting as surrogate and the spouse of the person 28 acting as surrogate, if applicable, agree to surrender custody of all 29 resulting children to the intended parent or parents immediately upon 30 birth; 31 (iii) the surrogacy agreement shall include the name of the attorney 32 representing the person acting as surrogate and, if applicable, the 33 spouse of the person acting as surrogate; 34 (iv) the surrogacy agreement must include an acknowledgement by the 35 person acting as surrogate and the spouse of the person acting as surro- 36 gate, if applicable, that they have received a copy of the Surrogate's 37 Bill of Rights from their legal counsel; 38 (v) the surrogacy agreement must permit the person acting as surrogate 39 to make all health and welfare decisions regarding themselves and their 40 pregnancy including but not limited to, whether to consent to a cesarean 41 section or multiple embryo transfer, and notwithstanding any other 42 provisions in this chapter, provisions in the agreement to the contrary 43 are void and unenforceable. This article does not diminish the right of 44 the person acting as surrogate to terminate or continue a pregnancy; 45 (vi) the surrogacy agreement shall permit the person acting as a 46 surrogate to utilize the services of a health care practitioner of the 47 person's choosing; 48 (vii) the surrogacy agreement shall not limit the right of the person 49 acting as surrogate to terminate or continue the pregnancy or reduce or 50 retain the number of fetuses or embryos the person is carrying; 51 (viii) the surrogacy agreement shall provide for the right of the 52 person acting as surrogate, upon request, to obtain counseling to 53 address issues resulting from the person's participation in the surroga- 54 cy agreement, including, but not limited to, counseling following deliv- 55 ery. The cost of that counseling shall be paid by the intended parent 56 or parents;A. 4921--C 14 1 (ix) the surrogacy agreement must include a notice that any compen- 2 sation received pursuant to the agreement may affect the eligibility of 3 the person acting as [surrogate's ability] surrogate and the person 4 acting as surrogate's spouse, if applicable, for public benefits or the 5 amount of such benefits; and 6 (x) the surrogacy agreement shall provide that, upon the person acting 7 as surrogate's request, the intended parent or parents [have or will8procure and] shall pay for a disability insurance policy [for] or other 9 insurance policy to cover any lost wages incurred by the person acting 10 as surrogate [; the person acting as surrogate may designate the benefi-11ciary of the person's choosing] in connection with their participation 12 in the surrogacy agreement after taking any medication or commencing 13 treatment to further embryo transfer excluding medical procedures 14 required to determine the medical eligibility to become a person acting 15 as surrogate. In the event that such insurance coverage is not avail- 16 able, the intended parent or parents shall reimburse the person acting 17 as surrogate for any lost wages the person acting as surrogate incurs in 18 connection with their participation in the surrogacy agreement. 19 (2) As to the intended parent or parents: 20 (i) the intended parent or parents [agree to] shall accept custody of 21 all resulting children immediately upon birth regardless of number, 22 gender, or mental or physical condition and regardless of whether the 23 [intended] embryo or embryos was or were transferred due to a laboratory 24 error without diminishing the rights, if any, of anyone claiming to have 25 a superior parental interest in the child; and 26 (ii) the intended parent or parents [agree to] shall assume responsi- 27 bility for the support of all resulting children immediately upon birth; 28 and 29 (iii) the surrogacy agreement shall include the name of the attorney 30 representing the intended parent or parents; and 31 (iv) the surrogacy agreement shall provide that the rights and obli- 32 gations of the intended parent or parents under the surrogacy agreement 33 are not assignable; and 34 (v) the intended parent or parents [agree to] shall execute a will, 35 prior to the embryo transfer, designating a guardian for all resulting 36 children and authorizing their executor to perform the [intended37parent's or parents'] obligations of the intended parent or parents 38 pursuant to the surrogacy agreement, including filing a proceeding for a 39 judgment of parentage for a child conceived pursuant to a surrogacy 40 agreement pursuant to section 581-203 of this article if there is no 41 intended parent living. 42 § 11. Subdivision (b) of section 581-404 of the family court act, as 43 added by section 1 of part L of chapter 56 of the laws of 2020, is 44 amended to read as follows: 45 (b) The subsequent separation or divorce of the intended parents does 46 not affect the rights, duties and responsibilities of the intended 47 parents as outlined in the surrogacy agreement. After the execution of a 48 surrogacy agreement under this article, the subsequent spousal relation- 49 ship of the intended parent does not affect the validity of a surrogacy 50 agreement, and the consent of the new spouse of [the] an intended parent 51 to the agreement shall not be required. 52 § 12. Section 581-405 of the family court act, as added by section 1 53 of part L of chapter 56 of the laws of 2020, is amended to read as 54 follows: 55 § 581-405. Termination of surrogacy agreement. After the execution of 56 a surrogacy agreement but before the [person acting as surrogate becomesA. 4921--C 15 1pregnant by means of assisted reproduction,] embryo transfer occurs or 2 after an unsuccessful embryo transfer, the person acting as surrogate, 3 the spouse of the person acting as surrogate, if applicable, or any 4 intended parent may terminate the surrogacy agreement by giving notice 5 of termination in a record to all other parties. Upon proper termination 6 of the surrogacy agreement the parties are released from all obligations 7 recited in the surrogacy agreement except that the intended parent or 8 parents [remains] shall remain responsible for all [expenses that are9reimbursable] lost wages and other financial obligations which have 10 accrued under the agreement [which have been incurred by the person11acting as surrogate] through the date of termination. If the intended 12 parent or parents terminate the surrogacy agreement pursuant to this 13 section after the person acting as surrogate has taken any medication or 14 commenced treatment to further embryo transfer, such intended parent or 15 parents shall be responsible for paying [for or reimbursing the person16acting as surrogate for all co-payments, deductibles,] any other out-of- 17 pocket medical costs[, and any other economic losses] incurred within 18 twelve months [of] after the termination of the agreement [and] which, 19 as documented by a health care practitioner, are associated with taking 20 such medication or undertaking such treatment. Unless the agreement 21 provides otherwise, the person acting as surrogate is entitled to keep 22 all payments received and obtain all payments to which the person is 23 entitled up until the date of termination of the agreement. Neither a 24 person acting as surrogate nor the spouse of the person acting as surro- 25 gate, if [any] applicable, is liable to the intended parent or parents 26 for terminating a surrogacy agreement as provided in this section. 27 § 13. Section 581-406 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 § 581-406. Parentage under compliant surrogacy agreement. Upon the 31 birth of a child conceived by assisted reproduction under a surrogacy 32 agreement that complies with this part, each intended parent is, by 33 operation of law, a parent of the child and neither the person acting as 34 [a] surrogate nor the person's spouse, if [any] applicable, is a parent 35 of the child. 36 § 14. Section 581-409 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 § 581-409. Dispute as to surrogacy agreement. (a) Any dispute which is 40 related to a surrogacy agreement other than disputes as to parentage, 41 which are not resolved through alternative dispute resolution methods, 42 shall be resolved by the supreme court, which shall determine the 43 respective rights and obligations of the parties[, in]. In any proceed- 44 ing initiated pursuant to this section, the court may, at its 45 discretion, authorize the use of conferencing or mediation at any point 46 in the proceedings. 47 (b) Except as expressly provided in the surrogacy agreement[, the48intended parent or parents and the person acting as surrogate shall be49entitled to all remedies available at law or equity in any dispute50related to the surrogacy agreement.51(c) There shall be no specific performance remedy available for a52breach] or subdivision (c) or (d) of this section, if the agreement is 53 breached by the person acting as surrogate, the spouse of the person 54 acting as surrogate, if applicable, or one or more intended parent, the 55 non-breaching party shall be entitled to all remedies available at law 56 or in equity in any dispute related to the surrogacy agreement.A. 4921--C 16 1 (c) Specific performance shall not be a remedy available for a breach 2 by a person acting as surrogate of a provision in the surrogacy agree- 3 ment that the person acting as surrogate be impregnated, agree to a 4 multiple embryo transfer, terminate or not terminate a pregnancy, or 5 submit to medical procedures including a cesarean section. 6 (d) If any intended parent is adjudicated to be the parent of the 7 child, specific performance is a remedy available for: (1) breach of the 8 surrogacy agreement by a person acting as surrogate which prevents the 9 intended parent or parents from exercising the full rights of parentage 10 immediately upon the birth of the child; or (2) breach by the intended 11 parent or parents by failure to accept the duties of parentage imme- 12 diately upon the birth of the child. 13 (e) In any proceeding initiated pursuant to this section, where the 14 supreme court determines that the dispute involves both contractual and 15 parentage issues, the court may order that the portion of the 16 proceedings raising parentage issues may be transferred to the family or 17 surrogate's court. 18 § 15. Section 581-502 of the family court act, as added by section 1 19 of part L of chapter 56 of the laws of 2020, is amended to read as 20 follows: 21 § 581-502. Compensation. (a) Compensation may be paid to a donor or 22 person acting as surrogate based on medical risks, physical discomfort, 23 inconvenience and the responsibilities they are undertaking in 24 connection with their participation in the assisted reproduction. Under 25 no circumstances may compensation be paid to purchase gametes or embryos 26 or for the release of a parental interest in a child. 27 (b) The compensation, if any, paid to a donor or person acting as 28 surrogate must be reasonable and negotiated in good faith between the 29 parties[, and said payments]. Base compensation paid to a person acting 30 as surrogate shall not exceed the duration of the pregnancy and recuper- 31 ative period of [up to] eight weeks after the birth of any resulting 32 [children] child. Supplemental compensation for any medical procedure 33 associated with complications from the pregnancy or delivery as 34 confirmed by a health care practitioner, and any associated lost wages, 35 may be, but are not required to be, paid after the recuperative period 36 and until twelve months after the birth of the child, a stillbirth, a 37 miscarriage resulting in termination of the pregnancy, or termination of 38 the pregnancy. 39 (c) Compensation may not be conditioned upon the purported quality or 40 genome-related traits of the gametes or embryos. 41 (d) Compensation may not be conditioned on actual genotypic or pheno- 42 typic characteristics of the donor or donors or of any resulting chil- 43 dren. 44 (e) Compensation to [an] any embryo donor shall be limited to storage 45 fees, transportation costs and attorneys' fees. 46 § 16. Section 581-601 of the family court act, as added by section 1 47 of part L of chapter 56 of the laws of 2020, is amended to read as 48 follows: 49 § 581-601. Applicability. The rights enumerated in this part shall 50 apply to any person acting as surrogate [in this state] under the laws 51 of the state of New York, notwithstanding any surrogacy agreement, judg- 52 ment of parentage, memorandum of understanding, verbal agreement or 53 contract to the contrary. Except as otherwise provided by law, any writ- 54 ten or verbal agreement purporting to waive or limit any of the rights 55 in this part is void as against public policy. The rights enumerated in 56 this part are not exclusive, and are in addition to any other rightsA. 4921--C 17 1 provided by law, regulation, or a surrogacy agreement that meets the 2 requirements of this article. 3 § 17. Section 581-603 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 § 581-603. Independent legal counsel. A person acting as surrogate, 7 and the spouse of the person acting as surrogate, if applicable, has the 8 right to be represented [throughout] from the initiation of the contrac- 9 tual process and throughout the duration of the surrogacy agreement [and10its execution] by independent legal counsel of their own choosing who is 11 licensed to practice law in the state of New York, to be paid for by the 12 intended parent or parents. 13 § 18. Section 581-604 of the family court act, as added by section 1 14 of part L of chapter 56 of the laws of 2020, is amended to read as 15 follows: 16 § 581-604. Health insurance and medical costs. A person acting as 17 surrogate has the right to have [a] comprehensive health insurance 18 [policy] coverage that covers preconception [care, prenatal care, major19medical treatments, hospitalization and behavioral health care] medical 20 expenses and medical expenses associated with the pregnancy for a [term] 21 period that extends throughout the duration of the expected pregnancy 22 and for twelve months after the birth of the child, a stillbirth, a 23 miscarriage resulting in termination of pregnancy, or termination of the 24 pregnancy, to be paid for by the intended parent or parents. [The25intended parent or parents shall also pay for or reimburse the person26acting as surrogate for all co-payments, deductibles and any other out-27of-pocket medical costs associated with pregnancy, childbirth, or post-28natal care that accrue through] In addition, a person acting as a 29 surrogate shall have the right to have the intended parent or parents 30 pay for all of their medical expenses incurred in connection with the 31 surrogacy agreement, continuing through the duration of the expected 32 pregnancy and for twelve months after the birth of the child, a still- 33 birth, a miscarriage resulting in the termination of pregnancy, or the 34 termination of the pregnancy. A person acting as a surrogate who is 35 receiving no compensation may waive the right to have the intended 36 parent or parents make such payments or reimbursements. 37 § 19. Section 581-605 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 § 581-605. Counseling. A person acting as surrogate has the right to 41 [obtain a comprehensive health insurance policy that covers behavioral42health care and will cover the cost of psychological] mental health 43 counseling to address issues resulting from their participation in [a] 44 the surrogacy [and such policy] agreement, which shall be paid for by an 45 insurance policy or by the intended parent or parents. 46 § 20. Section 581-606 of the family court act, as added by section 1 47 of part L of chapter 56 of the laws of 2020, is amended to read as 48 follows: 49 § 581-606. Life insurance, contractual liability, or accidental death 50 insurance policy. A person acting as surrogate has the right to be 51 provided a life insurance, contractual liability or accidental death 52 insurance policy that takes effect prior to taking any medication or 53 commencement of treatment to further embryo transfer, provides a minimum 54 benefit of seven hundred fifty thousand dollars, or the maximum amount 55 the person acting as surrogate [qualifying] qualifies for [it] if less 56 than seven hundred fifty thousand dollars, and [has a term that extends]A. 4921--C 18 1 such coverage shall extend throughout the duration of the expected preg- 2 nancy and for twelve months after the birth of the child, a stillbirth, 3 a miscarriage resulting in termination of pregnancy, or termination of 4 the pregnancy, with a beneficiary or beneficiaries of [their] the person 5 acting as surrogate's choosing, to be paid for by the intended parent or 6 parents. 7 § 21. The family court act is amended by adding a new section 581-705 8 to read as follows: 9 § 581-705. Adjudication. (a) A court adjudicating the parentage of a 10 child conceived through assisted reproduction or adjudicating the 11 enforceability of an embryo disposition agreement may apply section 12 581-202 and part three of this article retroactively. 13 (b) The participants in a surrogacy agreement that involved the 14 payment of compensation prior to February fifteenth, two thousand twen- 15 ty-one shall not be eligible to receive a judgment of parentage pursuant 16 to section 581-203 or section 581-406 of this article, but shall be 17 entitled to seek a judgment of parentage pursuant to section 581-407 of 18 this article. 19 (c) This article shall apply retroactively to uncompensated surrogacy 20 agreements entered into prior to February fifteenth, two thousand twen- 21 ty-two. 22 (d) Surrogacy agreements that were executed on or after February 23 fifteenth, two thousand twenty-three, but before the effective date of 24 the chapter of the laws of two thousand twenty-four that added this 25 subdivision that were in compliance with this article before it was 26 amended by the chapter of the laws of two thousand twenty-four that 27 added this subdivision shall be deemed a compliant surrogacy agreement 28 pursuant to section 581-406 of this article regardless of any deviations 29 from the current provisions of this article. 30 § 22. Paragraph (a) of subdivision 2 of section 123 of the domestic 31 relations law, as amended by section 5 of part L of chapter 56 of the 32 laws of 2020, is amended to read as follows: 33 (a) Any party to a genetic surrogate parenting agreement or the spouse 34 of any [part] party to a genetic surrogate parenting agreement who 35 [violate] violates this section shall be subject to a civil penalty not 36 to exceed five hundred dollars. 37 § 23. Subdivision (c) of section 1400 of the general business law, as 38 added by section 11 of part L of chapter 56 of the laws of 2020, is 39 amended to read as follows: 40 (c) "Surrogacy program" does not include any party to a surrogacy 41 agreement or any person licensed to practice law and representing a 42 party to the surrogacy agreement, but does include and is not limited to 43 any agency, agent, business, or individual engaged in, arranging, or 44 facilitating transactions contemplated by a surrogacy agreement, regard- 45 less of whether such agreement ultimately comports with the requirements 46 of part four of article five-C of the family court act. Any person 47 licensed to practice law shall be deemed a surrogacy program only in 48 those cases where such person is providing matching services to the 49 intended parent or parents and the person acting as a surrogate. 50 § 24. Section 1401 of the general business law, as added by section 11 51 of part L of chapter 56 of the laws of 2020, is amended to read as 52 follows: 53 § 1401. Surrogacy programs regulated under this article. The 54 provisions of this article apply to surrogacy programs arranging or 55 facilitating transactions contemplated by a surrogacy agreement, regard-A. 4921--C 19 1 less of whether such agreement ultimately comports with the requirements 2 under part four of article five-C of the family court act if: 3 (a) The surrogacy program does business in New York state; or 4 (b) A person acting as surrogate who is party to a surrogacy agreement 5 resides in New York state [during the term of] at the time the surrogacy 6 agreement[; or7(c) Any medical procedures under the surrogacy agreement are performed8in New York state] is executed. 9 § 25. Subdivisions (a) and (f) of section 1403 of the general business 10 law, as added by section 11 of part L of chapter 56 of the laws of 2020, 11 are amended to read as follows: 12 (a) Shall keep all funds paid by or on behalf of the intended parent 13 or parents other than funds paid to the surrogacy program for its fees, 14 in an escrow account separate from its operating accounts; and 15 (f) Shall be licensed to operate in New York state pursuant to regu- 16 lations promulgated by the department of health in consultation with the 17 department of financial services[, once such regulations are promulgated18and become effective]; and 19 § 26. Subdivision 1 of section 1404 of the general business law, as 20 added by section 11 of part L of chapter 56 of the laws of 2020, is 21 amended to read as follows: 22 1. The department of health, in consultation with the department of 23 financial services, shall promulgate rules and regulations to implement 24 the requirements of this article regarding surrogacy programs and 25 assisted reproduction service providers in a manner that ensures the 26 safety and health of gamete providers and persons serving as surrogates. 27 Such regulations shall: 28 (a) Require surrogacy programs to monitor compliance with [surrogacy29agreements] eligibility [and requirements in state law] criteria for the 30 intended parents and persons acting as surrogates pursuant to section 31 581-402 of the family court act; and 32 (b) Require the [surrogacy programs and] assisted reproduction service 33 providers to administer informed consent procedures that comply with 34 regulations promulgated by the department of health under section twen- 35 ty-five hundred ninety-nine-cc of the public health law. 36 § 27. This act shall take effect immediately.