by Michael S. Goldstein, Esq., LCSW
New York, New York it’s a hell of a town. Well not just a town, but the entire state has been one of the strictest prohibitors of surrogacy since 1992. Sections 121-124 of the New York Domestic Relations Law outlawed surrogate parenting by stating that such “contracts are hereby declared contrary to public policy of this state, and are void and unenforceable.” But it does not stop there. The law restricts anyone from implanting an embryo (even for no pay) where the intention is the surrogate would place the baby with someone else for adoption, and it holds it a crime for people to assist in drawing up such contracts for a fee.
Hopefully, that will be changing soon. After working on the development of the bill for months with several members of NYAAFF (New York Attorneys for Adoption and Family Formation), in May, Assemblywoman Amy Paulin introduced the Child-Parent Security Act of 2012 (A10499). It is a sweeping change to update New York’s old law so that parentage of children can be established in cases of assisted reproductive technology. ART, as it is now known, has been the answer to years of infertility for many would-be-parents, but the inconsistent interpretations of biology and ART has been a minefield for parents, children, and attorneys trying to advise them. Since New York has banned any form of ART, New Yorkers go elsewhere, including other countries like India, to take advantage of the incredible medical advancements that are now available.
Let’s set up a few definitions first that should be included in all ART agreements – YES these procedures should be put in writing before you enter into any ART relationship or plan. Intended Parents are just that = when the child is born it should be theirs legally with all the rights and responsibilities; Donors donate either eggs or sperm; Gestational Carriers are implanted with an embryo and give birth to the child.
Now, let’s mix the pot and create a few examples. For clarity we will use a husband and wife as the intended parents in all of the examples, but these scenarios can apply to singles, unmarried couples, LGBT couples, or any others. Intended Parents contract with an egg donor, use the husband’s sperm, and the wife carries the fetus to birth. Does the Egg Donor have rights? Intended Parents use wife’s egg and husband’s sperm, but a gestational carrier is used to carry and birth the baby. Whose name goes on the birth certificate? Gestational carrier is carrying three fetuses, but the intended parents only want two children. They ask the gestational carrier to selectively reduce one of the fetuses as it says is their right to do so in the agreement. She refuses. What happens?
The Child-Parent Security Act introduced by Assemblywoman Paulin will clear up most of these questions. First, by repealing the 1992 “anti-surrogacy” law, it will allow gestational carrier agreements – currently unlawful. It also establishes a procedure to obtain a pre-birth Judgment of Parentage which will allow the intended parents to be placed on the child’s birth certificate or make medical decisions for the child when in the hospital. Now, the intended parents would have to go to Court after the birth and hope that the Judge would recognize them as the parents. Maybe, they would even have to adopt the child, an unnecessary and costly procedure, especially in the second scenario where the child is genetically theirs! But there are many states that would consider the genetic carrier the “mother” because she gave birth to the child.
The Assembly justification written in support of the Act says it best:
“New York law has failed to keep pace with medical advances in the treatment of infertility, causing uncertainty about who the legal parents of a child are upon birth. In many cases, parentage created through these medical advances is not 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.
Importantly, this legislation lifts the ban on surrogacy contracts to permit gestational carrier agreements and sets forth the criteria for such agreements.
In addition, this legislation establishes a legal procedure for a partner of a biological or adoptive parent who has formed a parental bond with a child after birth, with the consent of the biological or adoptive parent to be declared a parent. This will allow such an individual to continue to have a relationship with the child should the relationship with the biological or adoptive parent dissolve.
The Child-Parent Security Act of 2012 will provide clear and decisive legal procedures to ensure that each child's relationship to his or her parent(s) is legally recognized. The new legal procedures will take into consideration the best interests of the children and the need for clarity and stability in family relationships.”
With its three pages of definitions of ART terms, A10499 also acts as an educational tool for legislators, many of whom have never heard of Assisted Reproductive Technology or that a “transfer” is when an embryo or gametes (egg and sperm) are placed “into the body of a woman with the intent to achieve pregnancy and live birth.”
State laws (and even different country laws) vary diversely on the subject of ART. Many have no law, so parents rely on Judges to interpret what are sometimes confusing genetic and legal mixtures. Some, like New York, currently ban any type of ART procedures. There are approximately 13 states that have statutes on the books about the different aspects of ART, compensated or otherwise. Since it was introduced late in the session and there is not yet a Senate bill accompanying it, we are hopeful that this will be addressed in next year’s session. AFA readers must be on the look-out and spread the word that the Child-Parent Security Act should be supported. Believe it or not, there is a strong sentiment, allegedly for moral and sometimes religious reasons, against ART and similar bills.
New York should be in the forefront of helping its citizens establish clear and certain parentage to their children. The Child-Parent Security Act can help accomplish that goal.
Michael S. Goldstein, Esq., LCSW, is an Attorney admitted in New York and Florida and a Licensed Clinical Social Worker. He is a Founding Member and Current Fellow of the American Academy of Adoption Attorneys (AAAA), a founding member and Board Member of New York Attorneys for Adoption and Family Formation (NYAAFF), Governor Emeritus and Legal Advisor of the Adoptive Parents Committee, partner of the Joint Council on International Children’s Services, and Co-Founder of Forever Families Through Adoption, Inc. (FFTA).
Copyright © July 9, 2012