Non-biological & Intended Parent Protection: The Child-Parent Security Act

Non-biological Parent Protection
Currently, if a non-biological parent has not adopted a child, that parent may lose all rights of access to the child even if that parent has raised the child since birth. There are many tragedies where children who have had for years the benefit and attachment of two parents, upon dissolution of the relationship between the parents lose all contact and communication with the non-biological parent. Even when the non-biological parent wishes to continue parenting their children, the courts have dismissed their petitions.

For example, Mary and Marina agreed to utilize artificial insemination to have a child. Both women raised the children together in one household. Both adults engaged in parenting tasks and formed emotional bonds with the child. Mary gave birth to the child, and Maria paid for the medical procedures. The child called both women “Mommy.” When Maria and Mary separated, Mary prohibited Maria from seeing their daughter. Maria filed in court for custody and visitation. The Family Court in Rockland County dismissed the petition for lack of standing.

The proposed Child-Parent Security Act, pending in the New York State legislature, would statutorily remedy this unnecessary and potentially devastating loss of a parent to a child. Part 6 of the bill permits an intimate partner of a biological or adoptive parent, who has resided in the same household as the child, performed significant parental tasks and formed a parent-child bond, to obtain a judgment of parentage post-birth of the child. The proposed law specifically excludes grandparents and compensated caregivers. The biological or adoptive parent must have consented to the formation of the parent-child relationship in some written form, including but not limited to a birth announcement, school or medical records, a religious document, signed letter, or an executed contract.

Intended Parent Protection
Currently, surrogacy contracts are illegal in New York State. Many infertile and same-sex couples travel or make arrangements out-of-state and abroad to have a child with a gestational carrier. The proposed Child-Parent Security Act repeals the ban on surrogacy contracts, permits gestational agreements for compensation, and legitimizes intended parents. An Order of Parentage may be obtained by a court prior to birth. The gestational carrier must have independent legal counsel, be over the age of twenty-one (21), and has the right to make her own health care decisions. The law prohibits specific performance. Thus one cannot be forced to become impregnated. The law only applies where the gestational carrier does not provide any eggs or genetic material.

As it is currently worded, the legislation does not require the gestational carrier to obtain psychological counseling before entering into a gestational agreement or to have her own children already. I would ask the proponents of the bill to consider such a provision, and possibly raise the required age of the gestational carrier to lessen the chance of psychological and emotional damage to a young woman surrogate. The intended parents are required to financially support and assume all parental responsibilities of all children that are born.

There is currently no statute protecting unmarried couples and single women as parents who conceive through artificial insemination. There is also no law addressing the recognition of parents of children conceived through egg or embryo donation. The Child-Parent Security Act addresses the legal status of children and recognition of parents conceived through sperm, egg, and embryo donation. The proposed legislation provides an education in the understanding of the scientific terms of assisted reproduction technology. The comprehensive bill contains three pages of definitions including but not limited to gamete, embryo, embryo transfer, collaborative reproduction, donor, assisted reproduction, gamete provider, gestational carrier arrangement, and in-vitro fertilization.

The legislative intent of the Child-Parent Security Act is a recognition that family law and the definition of a parent need to reflect how many different types of families exist and are formed. It is essential that family law catch up with the science and technology of assisted reproduction to lessen the confusion, and provide consistency and legitimacy to children’s family units.

About sherridonovan

Matrimonial & Family Attorney. Mediator and Family Coordinator.
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