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