EFFECTIVE FEBRUARY 15, 2021 - CHILD PARENT SECURITY ACT

Signed into law on April 3, 2020 was an act to amend the family court act, in relation to establishing the child-parent security act (Article 5-C); and to repeal section 73 and article 8 of the domestic relations law, relating to legitimacy of children born by artificial insemination and surrogate parenting contracts.

"JUSTIFICATION:

 

New York law has failed to keep pace with medical advances in assisted

reproduction, causing uncertainty about who the legal parents of a child

are upon birth. In many cases, the parentage of children created through

donated sperm, eggs and embryos is unsettled or open to attack at the

time of the child's birth and thereafter. Confusion or uncertainty

regarding the parental rights of donors and intended parents (both

genetic and non-genetic) who participate in the conception of the child

through assisted reproduction is detrimental to the child and secure

family relations. Where children are born to a gestational carrier the

parentage of the intended parents may not be recognized under current

law. This is not only detrimental to the child; it also causes confusion

in many critical situations. For example, a hospital does not know who

must give consent when a newborn requires medical procedures.

The Child Parent Security Act will provide clear and decisive legal

procedures to ensure that children born through third party reproduction

have secure and legally recognized parental relationships with their

intended parents.The law will make it clear that donors do not have

parental rights or obligations and that those rights and obligations

reside with the Intended Parents.

 

Importantly, this legislation lifts the ban on surrogacy contracts to

permit enforceable gestational carrier agreements and sets forth the

criteria for such agreements. When all of the requirements set forth in

the law are met, the intended parents can seek an "Order of Parentage"

from a court, prior to the birth of the child, which becomes effective

immediately upon birth. The requirements are designed to ensure that all

parties enter into the agreement on an equal footing and with full know-

ledge of their duties and obligations. For example, all parties must be

represented by independent legal counsel, and the agreement may not

limit the right of the carrier to make her own healthcare decisions.

 

Because of existing New York laws, couples facing infertility and same-

sex couples are forced to go out of state in order to have a child with

the assistance of a gestational carrier. This is overly burdensome to

the parents, who have often struggled for many years to have a child.

Having an out-of-state gestational carrier may make it difficult, if not

impossible, for the parents to fully participate in the pregnancy by

attending doctor's appointments, etc. It also requires the participants

to use out-of-state clinics and medical professionals despite the fact

that New York is home to world-class medical facilities and fertility

professionals.

 

New York appellate courts have repeatedly called upon the Legislature to

act to provide much needed clarity to the essential question of who is a

parent. The need to answer that call is more important today than ever

as increasing numbers of children are being conceived and born through

third party reproduction. The Child-Parent Security Act clarifies the

issue of who is a parent and establishes clear legal procedures which

ensure that each child's relationship to his or her parent(s) is legally

recognized from birth. As the New York Court of Appeals held in Brooke

S.B. v Elizabeth A.C.0 biology and adoption are not the only touchstones

to determine parentage. The Child Parent Security Act provides a frame-

work for determining the parentage of the large number of children

unprotected under existing New York state law.""