This is the fourth installment in the four-part series
The Child-Parent Security Act: Embarking on the Surrogacy Journey
The Child Parent Security Act is poised to impact thousands of New Yorkers seeking to start or grow families through third party reproduction. Set to take effect February 15, 2021, the CPSA sets forth clear legal procedures for obtaining a judgment of parentage for children born through sperm, egg or embryo donation and/or with the assistance of a gestational carrier. In addition to being neutral with respect to gender and marital-status, parentage under the CPSA is determined by the intention to parent rather than by genetic connection. The CPSA also permits cryopreserved embryos created by spouses or partners to enter into an agreement transferring sole dispositional control of the embryo(s) to one party and absolving the former spouse of parental responsibility.
While the CPSA also addresses parentage of children conceived through assisted reproduction (i.e., where there is a gestating intended parent and no surrogate), its most detailed provisions address the parentage of children born through surrogacy arrangements. The following information is helpful understanding the requirements under New York’s surrogacy law to secure legal parentage of children born through third-party reproduction.
An overview of parentage proceedings under the CPSA.
Once the surrogate becomes pregnant, the CPSA sets forth procedures for securing a Judgement of Parentage. Ideally, the parties should file a petition in the 2nd trimester for a prebirth order so that the baby is the legal child of the intended parents at birth. Since intended parents and surrogates may not live close to one another, it is important to select the county where the petition will be filed ahead of time and memorialize decisions related to travel and attendance at the birth in the surrogacy agreement; the petition may be filed in any county where the parent or surrogate resided any time after the surrogacy agreement was executed, or where the child was born or resides.
The surrogate and the intended parents must be named parties to the petition. The parties’ attorneys must certify that the surrogacy agreement meets all the requirements set forth under the applicable provisions of the Family Court Act, as described above, including compliance with as-yet unpromulgated requirements established by the commissioner of health. The petition must also include a statement from all parties that they knowingly and voluntarily entered into the surrogacy agreement and that they are jointly requesting that a judgment of parentage be entered.
If the court finds that the agreement is substantially in compliance with the statute and that the required statements are true, it must enter a judgment of parentage. The self-executing nature of the petition means that once filed, the court has little discretion to deny a petition if all statutory requirements are met. Since the petition is essentially confirming an existing parental relationship, as opposed to transferring parentage, the court may not require parents to submit to a home study or any other requirement typically associated with adoption proceedings.
The judgment of parentage declares that, upon the birth of the child, the intended parent(s) is/are the only legal parents of the child, and that neither the surrogate, the surrogate’s spouse, nor any donor is a legal parent of the child. The judgment also orders the surrogate and/or the surrogate’s spouse to transfer the child to the intended parents if this has not already occurred, and orders the intended parent(s) to assume responsibility for the maintenance and support of the child immediately upon birth. Upon receipt of the judgment, the local registrar must report the parentage to the appropriate department of health and issue an original birth certificate.
Embryo Disposition and Posthumous Conception.
Embryo disposition agreements between former spouses or partners are permissible under the CPSA. Cryopreserved embryos are treated similarly to marital property and are divided at the time a marriage is dissolved; they may also be divided by written agreement between unmarried partners. Prior to the passage of the CPSA, New York did not provide a path for releasing a former spouse or partner from parental obligations, even if the former spouse or partner did not object to the other’s use of the embryo for conception. With the passage of the CPSA, former spouses or partners with joint dispositional control of cryopreserved embryos may enter into a written agreement to transfer sole dispositional control to the intended parent. The parties must be represented by independent counsel, and spouses may only enter into the agreement after they are divorced. Upon execution of the dispositional agreement, a spouse or partner who transfers legal rights and dispositional control of a cryopreserved embryo is not a parent of any child conceived from that embryo, unless the agreement states that he or she consents to be a parent and such consent is not timely withdrawn prior to transfer of the embryo.
Where a consenting intended parent who provided genetic material dies before the transfer of eggs, sperm, or embryos, the deceased may nevertheless be recognized as the child’s parent for the purpose of granting the child the deceased’s benefits, provided that the record complies with the estates, powers and trusts law. However, even if the deceased signed a record consenting to be a parent by assisted reproduction, he or she will not be recognized as a parent of the resulting child unless the deceased specifically consented to be a parent of the child if assisted reproduction were to occur after death.
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For many intended parents, the decision to pursue gestational surrogacy is arrived at after a series of hardships and heartbreaks. Even after the decision is made, the process may be as complicated as it is rewarding. Before entering into a surrogacy agreement in New York, intended parents and surrogates alike should be certain that surrogacy is the right choice. This means committing to work together with knowledgeable professionals who can successfully guide you through this complex process while ensuring that you understand the risks and benefits of surrogacy arrangements.
If you are considering gestational surrogacy, either as an intended parent or a prospective surrogate, our firm can help you determine whether surrogacy is right for you. From explaining how New York surrogacy law applies to your unique circumstances, to negotiating and drafting compliant surrogacy agreements, to securing parental rights as soon as possible after the birth of a child, Weiss Zarett can guide you through the process even as the CPSA continues to be developed.
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Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a New York law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, employment counseling and controversies, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.
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