In March, this column addressed the “Continuing Legal Evolution of the Concepts of Parent and Child,” N.Y.L.J. (March 8, 2018) in a review of the Appellate Division, Third Department's decision of Jan. 25, 2018 in Matter of Christopher YY v. Jessica ZZ, 2018 NY Slip Op 0049, where the sperm donor, biological father sought access to the child of a feminine same sex couple and the court employed both the presumption of legitimacy of a child born to married partners and the doctrine of equitable estoppel to enforce the donor's promise to relinquish his rights to the child. The difficult questions resolved by that decision were soon followed by Matter of David S. v. Samantha G., N.Y.L.J. (May 3, 2018) where Family Court Judge Carol Goldstein was presented with a custody dispute surrounding a “tri-parent arrangement” involving a biological mother and the biological father joined by his husband. Judge Goldstein ruled that the biological father's husband had standing to seek custody and visitation, relying on the principles established by the New York Court of Appeals in Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016) with respect to the rights of a non-biological, non-adoptive same sex partner also seeking to establish rights of custody and visitation. Some of the other consistent precedents in this line of cases include Dawn M. v. Michael M., 55 Misc.3d 865 (Sup. Ct. Suffolk Co. 2017), RPF v. FG, 55 Misc.3d 642 (Fam. Ct. Orange Co. 2017), and Joseph O. v. Danielle B., 158 A.D.3d 767 (2d Dept. 2018).

Seeking to bring clarity to the perplexing questions concerning the determination of parentage in the modern, diverse and non-traditional family by divorce and family courts, New York State Assembly Member Amy Paulin has introduced the Child-Parent Security Act (A69559A). According to the Memorandum supporting this legislation, the purpose of the bill is “To legally establish a child's relationship to his or her parents where the child was conceived through third party reproduction including those children born through gestational surrogacy arrangements.” One impetus for this proposal, as stated at the end of the Justification section of the Memorandum, includes the fact that our appellate courts have urged the Legislature time and again to provide answers to the question of “who is a parent,” including a recognition of the importance of making this determination at the present time in our history because “increasing numbers of children are being conceived and born through third party reproduction.”

The Paulin bill Memorandum succinctly notes:

“New York 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 or 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 …; 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.”

Another unambiguously stated purpose of the legislation is to “make it clear that donors do not have parental rights or obligations and that those rights reside with the Intended Parents.”

The Memorandum articulates a recognition of the frustrations of New York couples who are constrained to go out of state for the purpose of producing a child with a “gestational carrier” resulting from infertility or the biological limitations of same sex parentage due to this State's currently existing ban on surrogacy contracts.

Part I of the Act contains a series of definitions, starting with “Assisted reproduction,” which is defined to include without limitation: intrauterine or vaginal insemination, donation of gametes, donation of embryos, in vitro fertilization and transfer of embryos, and intracytoplasmic sperm injection. Assisted Reproductive Technology (ART) is defined to consist of “any medical or scientific intervention” that is designed to achieve “live birth that results from assisted conception”—i.e., “the formation of a human embryo outside the body with the intent to produce a live birth.” Other terms that are defined by the Act for its purposes include, inter alia, the terms: child, collaborative reproduction, compensation, donor, embryo, embryo transfer, gamete, gestational carrier, health care practitioner, in vitro fertilization, record, retrieval, spouse, State and transfer.

Among the more important additional definitions, which have significant impact are: gestational agreement—“a contract between an intended parent and a gestational carrier intended to result in a live birth where the child will be the legal child of the intended parent”; gestational carrier arrangement—“the process by which a gestational carrier attempts to carry and give birth to a child created through assisted reproduction technology so long as the gestational carrier has not provided the egg used to conceive the resulting child”; intended parent—“an individual who manifests the intent … to be legally bound as the parent of a child resulting from assisted reproduction or collaborative reproduction”; participant—“an individual who provides a biological or genetic component of assisted reproduction, an intended parent, and the spouse of an intended parent or gestational carrier.”

In light of existing case law, the most consequential definition is that of a “parent,” which “means an individual who has established a parent-child relationship under this act or other law and includes, but is not limited to: (1) a child's birth parent who is not a gestational carrier or the spouse of the gestational carrier; (2) a child's genetic parent who is not the donor; (3) an individual who has legally adopted the child; (4) an individual who is the parent of the child pursuant to a legal presumption; (5) an individual who is a parent of the child pursuant to an acknowledgement or judgment of parentage pursuant to article two of this act or other law; (6) an individual who is a parent of the child pursuant to article three or four of this act.” This definition creates the interplay with the other articles of the Act.

Part 2 of the Act creates a new legal procedure (or cause of action) for obtaining a “judgment of parentage.” Persons who may petition for a judgment of parentage include a child, a parent or presumed parent, a participant, a support enforcement or other governmental agency, or a representative of a deceased, incapacitated or minor individual. Among the proceedings that can result in a judgment of parentage are those concerning a child born through ART, a child born pursuant to a gestational carrier arrangement, or intended parents who are spouses. Part 3 of the Act addresses the determination of the parentage of a child of ART. Authorization for gestational carrier agreements and the requirements for the contents of those agreements are set out in Part 4. Conditions for the reimbursement and compensation of donors and gestational carriers are contained in Part 5.

While new legislation by its very nature suffers from the risks of litigated challenges to its interpretation, constitutionality, enforceability, etc., this particular Act has much to offer our society by providing clear definitions, procedures and mechanisms that will allow courts to decide those perplexing cases where the parentage of a child is at the heart of a litigation that calls upon a judge, faced with the realities of science and medicine, to exert the utmost thought, compassion and understanding in order to effectively determine the parentage of a child in accordance with that child's best interests irrespective of biology. It remains to be seen whether this Act will ultimately pass through the legislative process in its current form, but its adoption, in whatever its final form may take, will certainly provide much fodder for future legal commentators, sociologists and anthropologists as the literature in this ever-evolving area of the law continues to grow and stimulate our understanding of the modern family.

Alton L. Abramowitz is a senior partner at Mayerson Abramowitz & Kahn. He was national President of the American Academy of Matrimonial Lawyers (2013) and is a past chair of the New York State Bar Association's Family Law Section (2014-2015).