Beyond Surrogacy: Parentage Under the Child Parent Security Act
5.25.2021
The surrogacy provisions of the Child Parent Security Act (CPSA)[1] have generated much attention and media coverage, to the point that the CPSA is often referred to as “the Surrogacy Bill.”[2] However, the surrogacy provisions are just one aspect of the CPSA, which contains groundbreaking substantive and procedural components related to parentage of children conceived through assisted reproduction. The enactment of the law was the culmination of many years of advocacy on behalf of same-sex and opposite-sex parents who conceive their children through assisted reproduction (AR).
The CPSA determines parentage of children conceived through AR and provides a procedure to obtain a judgment of parentage. However, the judgment is not necessary to establish parentage. It is a confirmatory judgment that proves parentage when parents travel or move to states where their parentage is not acknowledged by the laws of that jurisdiction.
Two key concepts permeate the CPSA: intent and consent. Biology is no longer the sole basis for determining parentage in New York. The parentage provisions of the CPSA are not entirely new and codify case law that developed over the last three decades to protect the parent-child relationship of non-genetic parents.
Prior to the enactment of the CPSA, New York lagged far behind most other states in the area of assisted reproduction. The only statutory provision was Domestic Relations Law § 73(1), which provided:
Any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent in writing of the woman and her husband, shall be deemed the legitimate, birth child of the husband and his wife for all purposes.
This limited donor statute left non-genetic parents vulnerable. There are countless instances of parents and children who never saw each other again after the parents separated, based on the Court of Appeals’ 1991 ruling in Alison D. v. Virginia M.[3] that the non-biological parent has no standing to seek custody or visitation of the child. Over the years, a patchwork of cases extended protection to non-genetic parents. Courts interpreted the donor statute to apply to same-sex parents,[4] applied the marital presumption of parentage once same-sex parents were able to marry,[5] and used principles of comity where parents entered into a civil union or domestic partnership in another state.[6] Alison D. was not overruled until 2016, when the Court of Appeals recognized “intended parents” for the first time in Brooke SB v. Elizabeth ACC.[7]
Where spouses consent to conception of a child through AR with the intent to be parents, both of them are the legal parents of the child. The definition of a “spouse” includes partners in a civil union or domestic partnership. This is a helpful expansion of the law’s reach, particularly for same-sex couples, although far fewer couples now enter into such unions because marriage has been available in all states since the United States Supreme Court’s decision in Obergefell v. Hodges.[8] Many states no longer offer civil unions or domestic partnerships, and others converted them to marriages.
Consent to AR is presumed where the intended parents are spouses, with limited exceptions (if they have signed a separation agreement, have lived apart for three years, or if it is shown by clear and convincing evidence that a spouse conceived a child through AR without the consent of the other parent). Unmarried parents are not left out in the cold and can prove consent with a “record” (defined as “information inscribed in a tangible medium or stored in an electronic or other medium that is retrievable in perceivable form.”) It is notable that a written agreement is not required. Examples could include birth announcements naming both parents, documents the intended parents signed at a fertility clinic, emails to family and friends announcing the pregnancy and birth, or text messages between the parents. This is a welcome expansion of the ways to prove consent. If no such record exists, the non-genetic parent must show consent by clear and convincing evidence. This latter standard is a codification of Brooke SB.
Consent and intent govern donors as well. A donor who is not a spouse and donates gametes (eggs or sperm) or embryos with “donative intent” is not a parent. Proof of consent and donative intent is easiest for an unknown donor, and a document from the gamete storage facility confirming the donation will suffice. There is one important exception to donative intent resulting in the donor not being a parent. If the donor makes a donation to his or her spouse, he or she is a parent. This is a necessary exception to address AR procedures where one spouse donates gametes. Co-maternity is one example (where one mother donates an egg, which is inseminated with donor sperm, and the resulting embryo is implanted in the other mother, who carries the child).
The requirements for known donors are more stringent, yet the CPSA has some flexibility. There needs to be a record signed by the donor and the gestating intended parents before a notary, two witnesses or a health care practitioner. A carefully crafted Donor Agreement would meet these requirements. It is best practice for clients to enter into such an agreement before the AR process starts. In the absence of such an agreement, a consent that meets the statutory requirements needs to be drafted and signed.
All is not lost if there is no such document. The intended parents could establish by clear and convincing evidence that the donor agreed prior to conception that the donor has no parental or proprietary interest in the embryos or gametes.
Given the risk that a known donor will decide to assert parentage, and the additional proof required to show consent and donative intent, it is tempting to advise clients to only use unknown donors. However, how our clients choose to form their families is an intensely personal decision, and couples who choose a known donor make this choice after careful consideration. It is our role to advise clients of the risks so that they can make informed decisions, and to carefully draft all necessary documents to protect the intended parents, the donor and the child.
The CPSA brings New York into the 21st century in its approach to parentage based on intent. There are still gaps, such as parentage when a spouse or partner becomes an intended and functional parent after the birth of the child. This scenario was specifically not addressed in Brooke SB, and the CPSA unfortunately did not extend protection to non-genetic parents in these circumstances. As a result, a partner or spouse could co-parent a child for many years and still be denied standing to seek custody or visitation if the parents separate. In order to determine parentage in the best interest of a child, a parent-child bond formed after the birth of a child cannot be ignored.
Judgment of Parentage
A judgment of parentage is not necessary to establish parentage, but it offers important protection particularly for same-sex couples, whose parentage of a child may be questioned if they travel or move to another state or country where a non-genetic parent’s parentage is questioned or not recognized.
The availability of a pre- or post-birth judgment of parentage is a welcome and overdue development in New York law. Judgments of parentage are final judgments of a court and are therefore entitled to recognition and enforcement anywhere in the United States under the full faith and credit clause of article IV, section 1, of the United States Constitution.
A pre-birth order establishes parentage before a child is born and gives parents peace of mind that the non-genetic parent will be able to assume parental responsibilities for the child, which could be particularly important if the gestating intended parent is unable to act or dies. Parents can also seek the order after the birth of the child.
Thus far, petitions for judgments of parentage have been assigned to the support magistrates in family court. The CPSA details the information that must be included in an application for a judgment of parentage, but no forms are available yet. Here are a few practice tips:
- Draft a joint petition, signed and verified by both intended parents.
- Where there is an unknown donor, a letter from the gamete storage facility will suffice and can be attached to the petition.
- For a known donor, in the absence of a Donor Agreement that meets the requirements of the statute, it will be necessary to draft a consent signed by the donor and the gestating intended parent, and it is recommended that the gestating and non-gestating intended parent sign it.
- Submit a proposed judgment of parentage that adjudges the intended parents to be the parents of the child and declares that the donor is not a parent. If it is a pre-birth order, it will take effect upon the birth of the child. Refer to the child as “a child expected to be born on or about ______ [due date].” If the parents have selected a name, add “and expect to be named ______.”
- Where there is a known donor, refer to him or her as “the donor referred to in the petition” to protect his or her confidentiality. Although the files are sealed (with limited exceptions), the parents will need to show the judgment of parentage to third parties, so it is important to omit the known donor’s name from the judgment.
- Submit an attorney’s affidavit which outlines the requirements for a judgment of parentage and how they are met in the application.
- Submit a proposed judgment of parentage that meets the statutory requirements with the petition, so that the application can be granted on submission.
The statute includes strong language indicating that the process is intended to be simple and smooth. Family Court Act § 581-202 (c) directs that where the petition includes the required statements, the court “shall adjudicate” the intended parent to be the parent of the child. FCA § 581-202(g) further provides that the court “shall issue” a judgment of parentage where the provisions of FCA§ 581-202(c) are met.
No appearance by the parties is necessary. Support magistrates in Tompkins and Albany counties have granted judgments of parentage on submission, which is in accordance with the intent of the CPSA.
Judgment of Parentage or Second-Parent Adoption?
Prior to the enactment of the CPSA, the only avenue for a non-genetic parent to establish legal parentage of a child was through the process of second-parent adoption. This raises the question whether parents should obtain a judgment of parentage, second-parent adoption, or both. Adoption is the “gold standard,” which is recognized in all states and countries, and efforts to deny recognition of a same-sex adoptive parent have been unsuccessful. Although a judgment of parentage is final judgment of a court and valid and enforceable in all states of the United States, it is not nearly as well known and understood. If parents were in a state or country that is hostile to same-sex parents, they could face possible delay or even need to seek court intervention to ensure recognition of parentage. This could be particularly problematic in a medical emergency of other time-sensitive circumstances.
The second-parent adoption process is much more complicated, costly, time-consuming and invasive than an application for a judgment of parentage. Most counties require a home study (often at the expense of the parents), and the “adoptive” parent is subject to fingerprinting and background checks. Clients find this baffling and insulting when they have been involved in every aspect of AR with their partner and have co-parented their child from birth. While attorneys may lean toward second-parent adoption as the safer, more secure option, in my experience, clients overwhelmingly prefer the judgment of parentage route for its simplicity, less intrusive nature and lower cost. It is our responsibility to advise our clients of the pros and cons of each process and leave it up to them to make an informed decision. For example, clients who do not anticipate moving to another state, do not travel much internationally, and whose families live in New York are much less likely to run into difficulties with the recognition of a judgment of parentage than parents who frequently travel outside the United States to visit their families or have careers where a move to a more hostile state is a strong possibility. Ideally, the day will come when the parentage of all parents who conceive their children through AR will be recognized worldwide without the need for further judicial proceedings. Until then, parents will need wise legal counsel to weigh their options and protect their families.
[1]. The CPSA was enacted as Article 5 of the Family Court Act, §§ 581-101 through 581-704, entitled “Judgments of Parentage of Children Conceived through Assisted Reproduction or Pursuant to Surrogacy Agreements” and took effect on February 15, 2021.
[2]. See Joseph R. Williams, New Surrogacy Law Brings Opportunities, but Practitioners Beware, NYSBA Journal, March/April 2021, Vol. 93 No. 2, p. 20, for an analysis of the surrogacy provisions of the CPSA. This article will focus on the other provisions.
[3]. 77 N.Y.2d 651 (1991).
[4]. Counihan v. Bishop 111 A.D.3d 594 (2d Dep’t 2013); see also dicta Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016).
[5]. Wendy G-M. v. Erin G-M., 45 Misc. 3d 574 (Sup. Ct., Monroe Co. 2014)
[6]. Debra H. v. Janice R., 14 N.Y.3d 576 (2010).
[7]. 28 N.Y.3d 1 (2016).
[8]. 576 U.S. 644 (2015).
