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Title: Section 69-11.1 - Definitions

Effective Date

07/16/2021

69-11.1 Definitions. As used in this Part:

(a) “Assisted reproductive technology service” or “ART service” means a medical procedure intended to result in a pregnancy, including, but not limited to, in vitro fertilization (including intracytoplasmic sperm injection), embryo transfer and gamete intrafallopian transfer. This definition, for purposes of this Part, does not include artificial insemination, the process by which fresh or frozen sperm sample is introduced into a vagina other than by sexual intercourse.

(b) “Assisted reproduction service provider” means a medical provider, fertility clinic, or reproductive tissue bank (which shall include a gamete bank), or any other entity which either provides ART services in New York State or for which any component of the ART services arranged by the entity is performed in New York State.

(c) “Child” means a born individual of any age whose parentage may be determined under Article 5-C of the Family Court Act or any other law.

(d) “Donor” means an individual who does not intend to be a parent and provides reproductive tissue used for ART procedures performed on recipients other than that person or that person’s spouse, whether or not for consideration.

(e) “Health commerce system” or “HCS” shall mean the Department's secure internet portal used for communications and information exchange with organizations licensed and certified by the Department and health care providers, or any successor system used for such information exchange as required by the Department.

(f) “Intended parent” means an individual, married or unmarried, who manifests the intent to be legally bound as the parent of a Child resulting from ART or a surrogacy agreement.

(g) “Surrogate” means an adult who is not an intended parent, who enters into a surrogacy agreement to bear a Child resulting from an embryo formed using an egg other than their own.

(h) “Surrogacy program” means any person or entity licensed under this Subpart as a surrogacy program.

(1) Persons or entities who arrange or facilitate transactions contemplated in a surrogacy agreement under Article 5-C of the Family Court Act, regardless of whether such agreement ultimately comports with the requirements of Article 5-C of the Family Court Act, are required to be licensed as a surrogacy program. under this Subpart if:

(i) such person or entity is doing business in New York;

(ii) the surrogate resides in New York State during the term of the surrogacy agreement; or

(iii) any medical procedures under the surrogacy agreement are performed within New York State.

(2) A surrogacy program does not include the parties to a surrogacy agreement.

(3) For the purposes of this definition, a person or entity is considered to arrange or facilitate the transactions contemplated in a surrogacy agreement by performing any of the following acts:

(i) Planning or arranging the details of ART services with the intended parent(s);

(ii) Setting the timeline for ART services; establishing the type of ART services to be rendered; acquiring or coordinating the ART services of third-party licensed professionals;

(iii) Recruiting and/or obtaining personal information regarding surrogates;

(iv) Making, negotiating, or completing the financial arrangements for ART services;

(v) Directing, being in charge or apparent charge of, or supervising, directly or indirectly, the matching process between the intended parent(s) and surrogates;

(vi) Directing, being in charge or apparent charge of, or supervising, directly or indirectly, the ART services to be provided by another licensed person;

(vii) Using in connection with one’s name or employment the words or terms “assisted reproduction,” “surrogacy,” or any other word, term, title, or picture, or combination of any of the above, that when considered in the context in which used would imply that such person is engaged in the practice of surrogacy program ownership or that such person is holding themself out to the public as being engaged in the practice of providing services related to matching intended parents with surrogates; or

(viii) Managing or supervising the operation of a surrogacy program, except for administrative matters such as budgeting, accounting and personnel, maintenance of buildings, equipment and grounds, and routine clerical and recordkeeping functions.

(4) Surrogacy programs shall not include individuals or entities acting solely as gamete or embryo donor programs; escrow agents providing escrow services pursuant to a surrogacy agreement; insurance providers providing insurance pursuant to a surrogacy agreement or providing insurance review services in connection with a surrogacy arrangement; assisted reproduction service providers providing medical services pursuant to a surrogacy agreement; mental health providers providing mental health services in connection with a surrogacy arrangement; or attorneys representing a party to a surrogacy agreement.

(i) “Owner” means any and all persons who, directly or indirectly, or acting by or through one or more persons, owns a five percent or greater interest in a surrogacy program.

Statutory Authority

General Business Law, Section 1404 and Public Health Law, Sections 2599-cc and 4365(4)

Volume

VOLUME A-1a (Title 10)

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