Supreme Court, New York County, November 4, 2024

Rosin Steinhagen Mendel, PLLC, New York City (Rebecca L. Mendel of counsel), for petitioners.

This parentage matter presents nontypical facts and, therefore, a brief description of the court's foundation for granting the petition is warranted.

The facts of this matter are undisputed. The petitioners, the intended parents of the subject child, entered into an egg-donor agreement with the egg donor, and using the genetic material from one petitioner and egg from the donor, created an embryo. Thereafter, the intended parents executed a surrogacy agreement. At the time the surrogacy agreement was executed, the intended parents had resided in New York State for at least six months, and the surrogate resided in Ontario, Canada. The surrogate became pregnant with the parties' embryo and, on XX/XX/XXXX, the surrogate gave birth to the subject child, V., in Ontario, Canada. The statement of live birth issued by Ontario lists the intended parents, petitioners J.Z. and B.S., as the parents of the subject child, V. Petitioners have resided in New York since, at least, February of 2017 and currently reside in New York County (see NY St Cts Elec Filing [NYSCEF] Doc No. 1 ¶ 6 [affirming that petitioners resided in New York State for at least six months before surrogacy agreement was executed]; NYSCEF Doc No. 3, surrogacy agreement dated Aug. 2017).

Petitioners now move pursuant to the Child-Parent Security Act (the Act), article 5-C of the Family Court Act, for an order and judgment of parentage declaring them to be the legal parents of V. Notably, the egg-donor and surrogacy agreements predate the Child-Parent Security Act.

Family Court Act § 581-701 instructs that the legislation underpinning parentage matters, such as this, is remedial and is "to be construed liberally to secure the beneficial interests and purposes thereof for the best interests of the child." As to surrogacy agreements, strict compliance with part 4 of article 5-C is not required, and the court may enforce surrogacy agreements that substantially comply with the requirements (Family Ct Act §§ 581-203 [e]; 581-407).

While Family Court Act § 581-206 contemplates a parentage petition being brought prior to the child's birth or within 180 days of the birth, it declares that continuing jurisdiction should be subject to Domestic Relations Law § 76 (entitled "Initial child custody jurisdiction"); however, Domestic Relations Law{**85 Misc 3d at 678} § 76 does not address continuing jurisdiction. Instead, Domestic Relations Law § 76-a does. Furthermore, Family Court Act § 581-206 provides that after the child reaches 180 days old, the court's continuing jurisdiction lapses, in direct contravention of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The practice commentary to Family Court Act § 581-206 generously [*2]describes this section as "problematic," and advises practitioners to "simply disregard" the 180-day limitation and abide the provisions of the UCCJEA which have long established jurisdiction over children until they reach 19 years old (Professor Merril Sobie, Prac Commentaries, McKinney's Cons Laws of NY, Family Ct Act § 581-206). Although Family Court Act § 581-206 is a relatively new statute, courts have begun disregarding its jurisdictional limitations, in favor of the UCCJEA (see e.g. Matter of Sabastian N. [Amy Z.—Lisa N.], 83 Misc 3d 514 [Fam Ct, Erie County 2024, Carney, J.]). Accordingly, the court finds that although the subject child was born in 2018, Family Court Act § 581-206 does not bar the instant proceeding, and jurisdiction under the UCCJEA is proper.

Here, the surrogacy agreement substantially complies with the Child-Parent Security Act, even though it predates the act. The surrogate was over the age of 21, had not provided the egg for conception, completed a medical evaluation, gave informed consent, and was represented by independent legal counsel. While the surrogate is not a U.S. citizen, the petitioners were both residents of New York. Furthermore, the totality of the surrogacy agreement reflects that the surrogate had the right to make all health and welfare decisions regarding the pregnancy and utilize medical personnel of her choosing in consultation with the petitioners, and was provided with comprehensive health and life insurance policies. Thus, the absence of an acknowledgment of receipt of the "Surrogate Bills of Rights" in the surrogacy agreement is not fatal. Accordingly, the court finds the parties' surrogacy agreement substantially complies with the Family Court Act and the proposed order of parentage is properly issued.

In addition, the best interests of the child support enforcement of the surrogacy agreement. It is in the best interests of the child to have security, via an order of parentage, that the intended parents are adjudicated to be the child's parents, with all the obligations, both societal and legal, that designation carries. The intended parents have raised, cared for, and{**85 Misc 3d at 679} loved the child since 2018. Notably, the parties jointly move this court for an order of parentage. Where many children have no parent, this child is fortunate to have two. The child's best interests are served by conforming the legal status of the petitioners and the child with reality: both petitioners are the child's parents. Accordingly, as a separate finding, it is in the child's best interest to issue the proposed order of parentage.

Accordingly, the petition is granted.