The Child Parent Security Act

Compensated Gestational Surrogacy is now legal and protected in New York State. Authored by our own Elizabeth Nakamura, Esq., this article was first published in the Westchester Bar Journal in the Fall of 2020. Since then, the Child-Parent Security Act has gone into effect. If you have questions about the legal process as it relates to this new law, please contact Fredman Baken & Novenstern, LLP.

The Child-Parent Security Act (“CPSA”), which was signed into law on April 3, 2020 as part of the Fiscal Year 2021 Budget and which will come into effect on February 15, 2021, makes two major changes to New York law: (1) it legalizes gestational surrogacy and (2) it provides a clear framework for establishing parental rights to a child conceived via assisted reproduction.1 This new law will significantly impact same-sex couples, unmarried parents, and single parents whose children have been conceived in whole or in part through assisted reproduction, whether that be gestational surrogacy or gamete donation.

The stated legislative intent behind the CPSA was to bring New York up to speed with new advances in assisted reproduction technologies, to avoid uncertainty as to the legal parentage of children born using such methods and to legalize gestational surrogacy agreements.2

Gestational Surrogacy

Under CPSA, compensated gestational surrogacy is legal and protected. However, prior to the passage of the CPSA, New York3 was one of only three US states in which compensated gestational surrogacy was illegal, the other two being Louisiana and Michigan.4 In simple terms, compensated gestational surrogacy is where the surrogate carries a child to term who carries none of the surrogate’s biological material. The surrogate mother, also known as the gestational carrier, is impregnated with an embryo created via invitro-fertilization using the genetic material of one, or both, of the intended parents.5 It also covers surrogacy of children conceived using entirely donated genetic material on behalf of the intended parents.6 However, the CPSA does not affect surrogates who have contributed genetic material to the conception of the child.7

For the CPSA to apply, both the surrogate and at least one of the intended parents must be US citizens or permanent residents.8 If the parties involved meet those requirements, a surrogacy agreement can be executed in accordance with the terms of CPSA to protect both the surrogate and the intended parents.9 A surrogacy agreement under the CPSA is unaffected if, during the surrogate’s pregnancy, the surrogate gets married or the intended parents get divorced or legally separated.10 A surrogacy agreement ensures there is no dispute over the intended parents’ parental rights to the child.

Further, in addition to legalizing compensation for surrogates, the CPSA also codifies a Surrogates’ Bill of Rights, which grants the surrogate control over her own health care decisions and psychological counselling and ensures that the intended parents are required to pay for the surrogate to have both (i) legal counsel of her own choosing, and (ii) health insurance and health care both for the entire duration of the pregnancy and for up to twelve months after the child is born.11 Crucially, the CPSA allows the surrogate to back out of the surrogacy agreement without penalty at any time prior to becoming pregnant and there is no specific performance remedy offered.12

Conception via Gamete and Embryo Donation to Gestating Parent

The CPSA provides clarity on the parental rights with respect to children conceived via assisted reproductive technologies, including sperm, egg, or embryo donation and/or invitro fertilization.

Prior to the passage of the CPSA, Domestic Relations Law Section 73, the sole legislation on the issue, only covered sperm donation and only conferred parental rights on the intended parents if they were married when the child was conceived using donated sperm.13 Section 73 was originally passed in 1974, well before egg/embryo donation or in vitro fertilization came into practice.14 Crucially, even in situations where the narrow provisions of Section 73 did apply, it left parents vulnerable to claims from sperm donors, especially known donors, seeking parental rights to the child.

Further, because of the marriage restriction, Section 73 did not confer parental rights on the unmarried partner of the gestating parent,15 who was forced to seek parental rights through the long, costly, and invasive process of second parent adoption after the child’s birth, which often involved a thorough criminal background check, a child abuse clearance, and a home study.16 It is important to note that unmarried parents are still permitted to seek second parent adoption even after the passage of the CPSA but they no longer need to do so to gain parental rights to their child.17 The judgment of parentage afforded under the CPSA is binding and irrevocable, ensures a child’s parentage is clear from the moment of his or her birth, and is entitled to Full Faith and Credit across the United States and abroad.18

Domestic Relations Law Section 73 will be repealed by CPSA on February 15, 202119 and Article 5-c Added to the Family Court Act to Address Parental Rights for Children Born Via Surrogacy or Via Assisted Reproductive Technologies

In addition to repealing the narrow and outdated Domestic Relations Law Section 73,20 the CPSA adds a new article, Article 5-C, to the Family Court Act entitled “Judgment of Parentage for Children Conceived Through Assisted Reproduction or Pursuant to Surrogacy Agreements.”21 It is key to understand that this new Article does not apply to a child conceived through sexual intercourse, but only via assisted reproduction, whether that be gestational surrogacy or gamete/embryo donation.22

In broad terms, Article 5-C creates a framework to establish the legal parentage of a child born via assisted reproductive technologies. It also allows the spouse or unmarried partner of a child’s gestating parent to establish legal parenthood of that child where said non-gestating spouse or unmarried partner either “provided gametes23 for or consented to assisted reproduction with the consent of the gestating parent.”24 In other words, under the CPSA, parentage may be assessed at birth for an intended parent who neither contributed genetic material to the production of the child nor is married to the parent who gave birth to the child.25

Article 5-C also allows the intended parents of a child born through gestational surrogacy to be granted parental rights immediately upon the child’s birth, pursuant to a surrogacy agreement, even if the child was conceived wholly with donated gametes and does not contain biological contributions from either intended parent.26 As stated above, this does not apply to situations where the surrogate contributes her own genetic material to the child she is carrying.27

Finally, in a key provision addressing the legislative uncertainty over the rights of sperm donors in cases prosecuted under Domestic Relations Law Section 73, the CPSA severely restricts the ability of donors to assert parental rights over the children produced using their donated gametes. In short, a donor forsakes their parental rights if they’ve shown “donative intent” by (a) donating anonymously to a storage facility for gametes and/or embryos or (b) submitting a record “acknowledging the donation and confirming the donor has no parental interest.”28 In the absence of either of those two conditions, donative intent can be shown by clear and convincing evidence.29

In sum, the CPSA brings New York law up to speed with developments in reproductive and medical technology. It addresses the needs of modern families who may not be married, but are still just as much parents of their shared child and it provides a measure of stability by preventing gamete donors from making claims in the future to the children produced by their donations. It is a triumph of progress and protects the rights of children with unmarried, single, and same-sex parents on unequal footing with the children of parents in a heterosexual marriage.

Endnotes

  1. Gov. Andrew M. Cuomo, Governor’s Press Office, Governor Cuomo Signs FY 2021 Budget, “Legalizing Gestational Surrogacy in New York State”, April 3, 2020, https://www.governor.ny.gov/news/governor-cuomo-announces-highlights-fy-2021-budget (last accessed May 20, 2020); Section 73: Legitimacy of Children Born by Artificial Insemination, The New York State Senate, https://www.nysenate.gov/legislation/laws/DOM/73 (repealed February 15, 2021) (last accessed May 20, 2020).
  2. State Senator Brad Hoylman, S2071B (Active) – Sponsor Memo, The New York State Senate, https://www.nysenate.gov/legislation/bills/2019/s2071?intent=support (last accessed May 18, 2020).
  3. N.Y. Dom. Rel. § 122 (“Surrogate parenting contracts are hereby declared contrary to the public policy of this state, and are void and unenforceable”) (repealed by the CPSA as of February 15, 2021).
  4. Surrogate Parenting Act, Act 199 of 1988, Legislative Council, State of Michigan, http://www.legislature.mi.gov/(S(i0p5cg45xv4se045b1kcxba5))/documents/mcl/ pdf/mcl-act-199-of-1988.pdf (last accessed May 20, 2020); Rep. Bishop, et al., House Bill No. 1102, Louisiana State Legislature, https://www.legis.la.gov/legis/ ViewDocument.aspx?d=1011810 (last accessed May 20, 2020).
  5. American College of Obstetricians and Gynecologists’ Committee on Ethics, Number 660: Family Building Through Gestational Surrogacy, March 2016, https:// www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2016/03/ family-building-through-gestational-surrogacy (last accessed May 20, 2020).
  6. State Senator Brad Hoylman, S2071B (Active) – Sponsor Memo, The New York State Senate, https://www.nysenate.gov/legislation/bills/2019/s2071?intent=support (last accessed May 18, 2020).
  7. Id.
  8. N.Y. Fam. Ct. Act § 581-402 (effective February 15, 2021), https://legislation. nysenate.gov/pdf/bills/2019/s2071b (last accessed May 20, 2020).
  9. N.Y. Fam. Ct. Act §§ 581-401 – 581-409 “Surrogacy Agreement” (effective February 15, 2021), https://legislation.nysenate.gov/pdf/bills/2019/s2071b (last accessed May 20, 2020).
  10. N.Y. Fam. Ct. Act § 581-404.
  11. N.Y. Fam. Ct. Act §§ 581-601 – 581-607 “Surrogates’ Bill of Rights” (effective February 15, 2021), https://legislation.nysenate.gov/pdf/bills/2019/s2071b (last accessed May 20, 2020).
  12. N.Y. Fam. Ct. Act § 581-405 (effective February 15, 2021), https://legislation.nysenate.gov/pdf/bills/2019/s2071b (last accessed May 20, 2020).
  13. N.Y. Dom. Rel. § 73.
  14. Nicholas Wade, “Pioneer of In Vitro Fertilization Wins Nobel Prize,” The New York Times, October 4, 2010, https://www.nytimes.com/2010/10/05/health/ research/05nobel.html (the first child born via in vitro fertilization was Louise Brown, born July 25, 1978) (last accessed May 20, 2020).
  15. N.Y. Dom. Rel. § 73.
  16. Adoptive and Foster Family Coalition, Stepparent Adoption in New York, https://affcny.org/stepparent-adoption-in-new-york/ (stepparent adoption is called “second parent adoption” if the parents are unmarried) (last accessed May 20, 2020).
  17. N.Y. Dom. Rel. § 117; N.Y. Fam. Ct. Act §§ 581-201 – 581-206 (effective February 15, 2021), https://legislation.nysenate.gov/pdf/bills/2019/s2071b (last accessed May 20, 2020).
  18. State Senator Brad Hoylman, S2071B (Active) – Sponsor Memo, The New York State Senate, https://www.nysenate.gov/legislation/bills/2019/s2071?intent=support (last accessed May 18, 2020).
  19. Section 73: Legitimacy of Children Born by Artificial Insemination, The New York State Senate, https://www.nysenate.gov/legislation/laws/DOM/73 (repealed February 15, 2021) (last accessed May 20, 2020).
  20. Section 73: Legitimacy of Children Born by Artificial Insemination, The New York State Senate, https://www.nysenate.gov/legislation/laws/DOM/73 (repealed February 15, 2021) (last accessed May 20, 2020).
  21. N.Y. Fam. Ct. Act, Article 5-C (effective February 15, 2021), https://legislation.nysenate.gov/pdf/bills/2019/s2071b (last accessed May 20, 2020).
  22. N.Y. Fam. Ct. Act § 581-301 (effective February 15, 2021), https://legislation.nysenate.gov/pdf/bills/2019/s2071b (last accessed May 20, 2020).
  23. A gamete is a cell that has the potential to form an embryo when combined with another gamete; both eggs and sperm are gametes.
  24. State Senator Brad Hoylman, S2071B (Active) – Sponsor Memo, The New York State Senate, https://www.nysenate.gov/legislation/bills/2019/s2071?intent=support (last accessed May 18, 2020)
  25. N.Y. Fam. Ct. Act §§ 581-201 – 581-204 (effective February 15, 2021), https://legislation.nysenate.gov/pdf/bills/2019/s2071b (last accessed May 20, 2020).
  26. N.Y. Fam. Ct. Act § 581-203 (effective February 15, 2021), https://legislation.nysenate.gov/pdf/bills/2019/s2071b (last accessed May 20, 2020).
  27. State Senator Brad Hoylman, S2071B (Active) – Sponsor Memo, The New York State Senate, https://www.nysenate.gov/legislation/bills/2019/s2071?intent=support (last accessed May 18, 2020).
  28. N.Y. Fam. Ct. Act, Article 5-C, https://legislation.nysenate.gov/pdf/bills/2019/s2071b
  29. N.Y. Fam. Ct. Act § 581-202(d) (effective February 15, 2021), https://legislation.nysenate.gov/pdf/bills/2019/s2071b (last accessed May 20, 2020).
Liz Nakamura, Esq.

Elizabeth Nakamura, Esq., is an associate at Fredman Baken & Novenstern, LLP. She graduated magna cum laude from the Benjamin N. Cardozo School of Law in 2014 with a concentration in Family Law and from Wellesley College in 2010 with a B.A. in Philosophy and in Japanese Language and Literature. While in law school, she served as a clerk to District Judge Stanley R. Chesler (District of New Jersey) as part of Cardozo’s Alexander Fellowship.