ART Parentage Proceedings

When assisted reproduction (egg, sperm or embryo donation) is used, a parentage proceeding can be initiated by an intended parent or a donor.

Examples of scenarios where a parentage proceeding can be used are:

• A married couple (same-sex or opposite-sex) uses donated sperm, egg or embryos to conceive a child
• An unmarried couple (same-sex or opposite-sex) uses donated sperm, egg or embryos to conceive a child
• A single woman uses donated sperm to conceive a child

The parentage proceeding can be commenced during the pregnancy or after the baby is born. It will need to be established that the intended parents intended to be the parents of the child at the time of conception and that the donor intended to be a donor (and not a parent). An egg, sperm or embryo donation agreement, which should be entered into prior to conception, can serve as the proof of that intent.

The court will then issue a parentage order declaring the intended parent(s) to be the parent(s) of the child and declaring the donor(s) not to be parents of the child.  The order will also direct that the intended parent(s) be listed as the parent(s) on the child’s birth certificate.

Parentage proceedings can be used in lieu of a second or step-parent adoption for couples who gestate their own child using an egg, sperm or embryo donor.

Even though the intended parent(s) can often be listed on the child’s birth certificate without a parentage order in New York, it is still a best practice to complete a parentage proceeding.  A birth certificate is only a presumption of parentage and will not necessarily be recognized as controlling with respect to parentage in another state or country.  In contrast, a parentage order is entitled to full faith and credit in every other state in the United States, even if that state would not have issued that parentage order themselves. This is particularly important for LGBTQAI+ families.

A parentage proceeding is also often required by a provision in the egg, sperm or embryo donation agreement, because it is also a protection to the donor from having any type of parental responsibility for a child born using their genetic material, such as child support.