BILL NUMBER: S7749
SPONSOR: KRUEGER
 
TITLE OF BILL:
An act to amend the family court act, the public health law, the general
business law and the insurance law, in relation to surrogacy programs
and agreements; and to amend the social services law, in relation to
enrollment in the state health insurance exchange
 
PURPOSE:
To ensure that surrogacy and gamete donation agreements work for every-
one involved. To provide strong medical, legal, and financial
protections for persons who act as surrogates and gamete donors, which
will also protect the health of donor-conceived people and individuals
born through surrogacy. To strengthen the Surrogate's Bill of Rights and
create a Gamete Donor's Bill of Rights. To create a Bill of Rights of
Donor-Conceived and Surrogate-Born Individuals to ensure they can access
information about their origins and the medical information they may
need. To establish a comprehensive informed consent process to help
ensure that all parties fully understand how surrogacy and gamete
donation work, the risks involved, and their rights before providing
informed consent to enter into a surrogacy or gamete donation agreement.
To provide for regulation of gamete donation agreements, marketing, and
business and clinical practices. To establish timely gamete donation
policies to provide oversight of a rapidly advancing area of heath care.
 
SUMMARY OF PROVISIONS:
Section 1: Amends section 581-102 of the Family Court Act to add defi-
nitions of "Central assisted reproduction registry," "Donor-conceived
person or individual," "Gamete donation agency agreement," "Gamete
donation matched agreement," "Identified gamete donation or identified
gamete donor," "informed legal consent," "informed medical consent," and
"Nonidentified gamete donation or nonidentified gamete donor;" to modify
the definition of "Donor;" and to place definitions in alphabetical
order.
Section 2: Amends section 581-202 of the Family Court Act. Stipulates
that a proceeding for a judgment of parentage with respect to a child
conceived through assisted reproduction may be commenced any time after
the first trimester of pregnancy. Stipulates that the court shall adju-
dicate the intended parent or parents to be the parent or parents of the
child where the court finds the required statements under (c)(1) - (4)
in the petition to be true. Specifies what comprises sufficient proof of
a donor's donative intent in the case of a nonidentified donor, an iden-
tified donor, where gametes or embryos have previously been released to
a gamete or embryo storage facility or in the presence of a health care
practitioner. and in the case of a donation from a donor who is known to
the intended parent or parents. Stipulates that after the original birth
certificate has been issued, the appropriate department of health will
amend the birth certificate and seal the original birth certificate,
which shall be accessible to the donor-conceived or surrogate-born
person once 18 years of age, or to a legal parent or guardian if the
person is under the age of 18. Stipulates that if the judgment of
parentage is issued prior to the birth of the child, the petitioners
shall notify the court within 7 days of the birth using a form to be
prescribed by the chief administrator of the courts, after which an
amended judgment of parentage shall be issued. Defines "original birth
certificate."
Section 3: Amends section 581-203 of the Family Court Act. Stipulates
that a proceeding for a judgment of parentage may be commenced at any
time after the first trimester of the surrogate pregnancy, and the
spouse of the person acting as surrogate, if applicable, and any donor
for whom there is not proof of donative intent are necessary parties.
Requires a statement that the person acting as surrogate and the
intended parent or parents have been residents of the state for at least
six months at the time the surrogacy agreement was executed and have
certified that they will maintain NYS residency for the duration of the
surrogate pregnancy and for at least one month following the first of
any children. Requires certification from the attorney representing the
person acting as surrogate and the spouse of the person acting as surro-
gate, if applicable, that the requirements of Part 4 have been met.
Requires a copy of the executed surrogacy agreement. Stipulates that
after the original birth certificate has been issued, the appropriate
department of health will amend the birth certificate and seal the
original birth certificate, which shall be accessible to the donor-con-
ceived or surrogate-born person at 18 years of age or to a legal parent
or guardian if the person is under the age of 18. Stipulates that if
the judgment of parentage is issued prior to the birth of the child, the
petitioner shall notify the court within 7 days of the birth, using a
form that shall be prescribed by the chief administrator of the courts,
after which an amended judgment of parentage shall be issued. Defines
"original birth certificate."
Section 4: Amends section 581-205 of the Family Court Act. Stipulates
that a person who is donor-conceived or surrogate-born under section
581-202 or 581-203 of the Family Court Act has the right to inspect and
make copies of the entire court record, including the names of any iden-
tified gamete donors or the donor reference number of any nonidentified
gamete donors. Stipulates that pursuant to section 4138-e of the Public
Health Law, a donor-conceived or surrogate-born person may obtain a
certified copy of their original birth certificate.
Section 5: Amends subdivision (a) of section 581-206 of the Family Court
Act to stipulate that proceedings pursuant to this article may be insti-
tuted in the New York State supreme court, family court, or surrogates
court.
Section 6: Amends the Family Court Act by adding new section 581-207,
"Certified copy of judgment of parentage." Stipulates that the court
shall provide a certified copy of the judgment of parentage issued
pursuant to section 581-202 or 581-203 to the intended parent or
parents, and to the person acting as surrogate. and the spouse of the
person acting as surrogate. ii applicable. if the judgment of parentage
is issued pursuant to section 581-203.
Section 7: Amends subdivision (b) of section 581-303 of the Family Court
Act by stipulating the court shall issue a judgment of parentage pursu-
ant to Article 5C upon application by any person authorized to file a
petition.
Section 8: Amends paragraph 3 of subdivision (a) and subdivision (d) of
section 581-306 of the Family Court Act. Stipulates the conditions under
which transfer of legal rights and dispositional control of embryos
becomes effective.
Section 9: Amends section 581-402 of the Family Court Act. Stipulates
that a person acting as surrogate must be at least 21 and less than 35
at the time of conception; has met and has certified that they will
continue to meet residency requirements; has obtained written medical
clearance to undergo surrogate pregnancy after completing a medical
evaluation and psychological screening with an independent health care
practitioner licensed under title 8 of the Education Law, but will not
obtain clearance if they meet any of the disqualifying criteria; must
have previously delivered at least one healthy live birth from an uncom-
plicated pregnancy; has not delivered more than four live children; has
not had any prior cesarean sections; has given informed medical and
legal consent after completing the required procedures; has been repres-
ented from the initiation of and throughout the contractual process and
the duration of the surrogacy agreement until all of the acts contem-
plated by the surrogacy agreement have been fulfilled; has a comprehen-
sive health insurance policy or the intended parents will procure and
pay for a comprehensive health insurance policy; and has registered with
the Central Assisted Reproduction Registry. Stipulates t hat at least
one intended parent must provide their gametes to create the embryo,
unless the intended parent is unable to do so for medical reasons; the
intended parent or parents have met and have certified they will contin-
ue to meet the residency requirements; have given informed medical and
legal consent to enter into the surrogacy agreement after completing the
required procedures; have been represented by legal counsel from the
initiation of and throughout the contractual process and duration of the
surrogacy agreement until all of the acts contemplated by the surrogacy
agreement have been fulfilled; were not parties to another surrogacy
agreement when they executed the surrogacy agreement pursuant to Part 4
of Article 5-C, and they will not enter into another surrogacy agreement
until after all of the acts contemplated by the surrogacy agreement have
been fulfilled; they have registered with the Central Assisted. Reprod-
uction Registry.
Section 10: Amends section 581-403 of the Family Court Act. Requires
surrogacy agreements to be in a record with each signature notarized or
witnessed by two non-parties, whose names and contact information shall
be recorded. Requires the surrogacy agreement to be executed before the
person acting as surrogate takes any medication or commences medical
procedures, and after the person acting as surrogate has provided
informed medical and legal consent following required procedures to
enter into the surrogacy agreement. Stipulates that the person acting as
surrogate, the spouse of the person acting as surrogate, if applicable,
and the intended parent or parents shall have been represented from the
initiation of and throughout the contractual process and the surrogacy
agreement stipulates that they will continue to be represented through-
out the duration of the surrogacy agreement until all of the acts
contemplated by the surrogacy agreement have been fulfilled. Requires
the surrogacy agreement to stipulate that the person acting as surrogate
has or will obtain a comprehensive health insurance policy that takes
effect prior to taking any medication or commencing medical procedures
to further embryo transfer. Requires the surrogacy agreement to include
a disclosure that addresses if an intended parent's health insurance
coverage of IVF shall be used to cover medical costs of assisted reprod-
uction services rendered to the person acting as surrogate. Stipulates
that the surrogacy agreement shall include the name of any identified
gamete donor or the donor reference number of any nonidentified gamete
donor. Requires the surrogacy agreement to include the name of and
contact information for the independent escrow agent and the fertility
clinic, as well as the contact information for the attorney representing
the person acting as surrogate. Requires the surrogacy agreement to
include acknowledgment by the person acting as surrogate and the spouse
of the person acting as surrogate, if applicable, that they received a
copy of the Bill of Rights of Donor-Conceived and Surrogate-Born Indi-
viduals, an explanation of each right, and how to implement their
rights. Requires the surrogacy agreement to permit the person acting as
surrogate to make all health, welfare, and behavioral decisions regard-
ing themselves and their pregnancy. Any clauses or terms that impose
restrictions on the behavior of the person acting as surrogate are void
and unenforceable. Stipulates that the surrogacy agreement shall require
the person acting as surrogate to receive surrogate screening, assisted
reproduction, maternity health care and delivery, and behavioral health
care services from health care providers licensed under Title 8 of the
Education Law. Stipulates that the surrogacy agreement shall permit the
person acting as surrogate to utilize the services of a health care
practitioner licensed under Title 8 of the Education Law of their choos-
ing. Requires the surrogacy agreement to include a notice that compen-
sation received is taxable and may affect eligibility for public bene-
fits. Requires the intended parents to procure and pay for a life
insurance policy for the person acting as surrogate. Stipulates that the
surrogacy agreement may not include a nondisclosure clause that prohib-
its the person acting as surrogate from talking about the surrogacy
arrangement.
Section 11: Amends section 581-408 of the Family Court Act to stipulate
that when there is no surrogacy agreement, parentage of the child shall
be determined based on other laws of this state, taking into account the
best interests of the child.
Section 12: Amends section 581-409 of the Family Court Act. Stipulates
that any disputes as to parentage shall be resolved taking into account
the best interests of the child. Stipulates that in any proceeding where
the Supreme Court determines the dispute involves contractual and
parentage issues, the court may order that the portion of the proceeding
raising parentage issues may be transferred to the Family or Surrogate's
Court.
Section 13: Amends subdivision (c) of section 581-502 of the Family
Court Act to stipulate that compensation may not be conditioned upon the
number of oocytes retrieved, purported quality, or genome-related traits
of the gametes or embryos.
Section 14: Amends section 581-601 of the Family Court Act to stipulate
that the rights enumerated shall apply to any person acting as surrogate
under Part Four of Article 5-C.
Section 15: Amends section 581-602 of the Family Court Act to stipulate
that a person acting as surrogate has the right to make all health and
welfare decisions regarding themselves and their pregnancy. including
whether to get vaccinated against the Coronavirus and other illnesses
and to utilize the services of a health care practitioner licensed under
title eight of the education law of their choosing. Stipulates that a
person acting as surrogate has the same right to make behavioral deci-
sions regarding themselves and their pregnancy as other pregnant people
in NYS. Provisions that restrict a surrogate's behavior in a surrogacy
agreement are void and unenforceable.
Section 16: Amends section 581-603 of the Family Court Act to stipu-
lation that a person acting as surrogate has the right to be represented
from the initiation of and throughout the contractual process and the
duration of the surrogacy agreement, until all of the acts contemplated
by the surrogacy agreement have been fulfilled.
Section 17: Amends section 581-604 of the Family Court Act to stipulate
that a person acting as surrogate has the right to have a comprehensive
health insurance policy for a term beginning before the person acting as
surrogate takes any medication or commences medical procedures to
further embryo transfer.
Section 18: Amends section 581-605 of the Family Court Act to stipulate
that a person acting as surrogate has the right to have a comprehensive
health insurance policy that covers behavioral health care.
Section 19: Section 581-607 of the Family Court Act is renumbered
section 581-608 and new section 581-607, "Disability insurance policy"
is added. Stipulates that a person acting as surrogate has the right to
be provided a disability insurance policy prior to taking medication or
commencing medical/surgical procedures, to be paid for by the intended
parent or parents.
Section 20: Amends Article 5-C of the Family Court Act by adding new
Parts 8, 9, 10, and 11.
Part 8: Gamete Donation Matched Agreement and Gamete Donation Agency
Agreement
Adds sections 581-801 - 581-808 to establish regulation of enforceable
gamete donation matched agreements and gamete donation agency agree-
ments. Specifies eligibility requirements that potential gamete donors
and/or intended parents must meet to enter into a gamete donation
matched agreement or a gamete donation agency agreement. Stipulates
requirements of gamete donation matched agreements and gamete donation
agency agreements. Stipulates that once a gamete donation matched agree-
ment or a gamete donation agency agreement has been executed, subsequent
separation or divorce of intended parents does not affect the rights,
duties, and responsibilities of the intended parents as spelled out in
the agreement. Specifies the rights of gamete donors and intended
parents to terminate a gamete donation matched agreement, a gamete
donation agency agreement, or to cancel an egg retrieval cycle or stop
donating gametes; circumstances under which the egg donor may keep the
secured health insurance policy; circumstances under which the egg donor
must return compensation received or receive prorated compensation; and
protections against gamete donors and intended parents being required to
cover or reimburse the cost of donor screening, medications, and medical
procedures. Stipulates that upon the birth of a child under a gamete
donation matched agreement or a gamete donation agency agreement. each
intended parent is a parent of the child. and any gamete donor is not a
parent of the child. Provides for
Part 9: Gamete Donor's Bill of Rights
Adds sections 581-901 - 581-907 to establish the rights of gamete
donors. Stipulates that gamete donors have the right to choose which
medical records and health information, other than required information,
they shall share with an intended parent and the entity that provides
matching services or collects their gametes. Stipulates that gamete
donors have the right to access upon request their medical and clinical
records related to donor screening and gamete donation. Stipulates that
gamete donors have the right to make all health and welfare decisions
regarding themselves. Stipulates that gamete donors have the right to
consult with independent legal counsel of their choosing prior to sign-
ing a gamete donation agreement. Stipulates that egg donors have the
right to have a health insurance policy that covers major medical treat-
ments, hospitalizations, and behavioral health that takes effect before
they take any medication or commence medical procedures in furtherance
of ovarian stimulation and oocyte retrieval, and the term of which
extends for 12 months after oocyte retrieval is completed. Stipulates
that egg donors have the right to have a health insurance policy that
covers behavioral health and will cover the cost of