In February 2021 the New York state passed a law which provides that New York residents who can’t have children biologically can become lawful parents by means of a surrogacy agreement. This statute will be codified as article 5 – C of the Family Court Act.

If you are a parent that has conceived a child through the assistance of a sperm donor or through any other assisted reproduction mechanism, you may seek parentage. Prior to this law, you were not allowed to seek parentage. The proceedings start with a verified complaint filed in either Supreme court, Family Court or Surrogates’ court and the following people can file such an action: either a child, a parent, a participant, a person with a claim to parentage, or even social services. The actual proceeding may be brought before the child is born.

The court will enter a judgment of parentage, if the petition is filed where the child, or the parent resides, or even in the county that the child is born in, but it must be filed within 90 days after their birth. It can also be filed prior to the birth of the child. 

The petition must include that the intended parent has been a New York resident for at least six months, or the child will be born in New York within 90 days

Where there is an unintended or intended parent who is not carrying the child, both parents must consent to assisted reproduction.

 In the situation, where an anonymous person donated the embryo or gametes there must be a showing to the Court of clear and convincing evidence of donative intent of the anonymous doner. 

In the situation, where the donor is actually known to the parties, then you would have to have a statement signed by the intended parent and the donor confirming that the donor has no parental interest in the reproductive materials provided, and the there must be clear and convincing evidence to such a fact. 

If the intended parent cannot provide the Court with proof of donative intent then the court shall hold a hearing to determine said donative intent.

Such a hearing must be established after notice has been given to the donating party. Next, it is up to the court, under section 581–202 subsection f, to decide whether there was donative intent.  

There are exceptions to the rule, as when a donator has to appear in court. For instance, if the donor donated under the supervision of a doctor, then they do not have to attend the hearing.

This can become really tricky, because if the court agrees with the petitioner that the donor is not a parent, then the court can find proof of donative intent, and the petitioner will win on their parentage application, thereby relieving the donor of all possible responsibilities for, or interests in, the child.

However, if the court believes that the donating parent assisted reproduction with the intent of becoming a parent and said, donation was done with the consent of the gestating parent, then the court can actually find that donating party to be a parent of the child for all practical purposes.

The judgment that the court enters at the end of the hearing will declare the intended parents of the child. Set order will also set forth which party is responsible for the maintenance and support of the child when the child is born. The order will also specify whether or not the donor is a parent of the child. After that, the court will order that the judgment as to the Donor’s responsibility for the child (or not) be reported to the department of health and direct the local department of health to amend the birth certificate to reflect its judgment.

There is also a new set of rules as to surrogacy agreements under Family Court act section 5 81–203. My next article will go into the details of that particular proceeding and who gets custody of the baby.

 I hope this is helpful to parties who worry about whether or not their intentions as to parentage will be fulfilled through reproductive donation.

By: Your Manhattan Divorce Lawyer 

Lisa Beth Older, Esq.

Please note that this is not legal advice and is for informational or entertainment purposes only.

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