USA Law and Practice Contributed by: Valentina Shaknes, Jordan Messeri, Malissa Osei and Grace Chamoun Taranto, Krauss Shaknes Tallentire & Messeri LLP
1.6 Same-Sex Relationships See 1.4 Requirements for Non-Genetic Parents . 1.7 Adoption See 1.4 Requirements for Non-Genetic Parents .
Surrogacy Gestational surrogacy is the process by which a wom - an agrees to become pregnant via in vitro fertilisation and embryo transfer and to carry and deliver a baby for intended parents, who will be declared the legal parents of the child immediately upon birth. Surro - gacy is an important family-building option for many families experiencing fertility or health issues and/or for LGBTQ+ families. The USA does not have federal laws regarding gesta - tional surrogacy. Instead, each state has the right to create its own laws on the subject, which vary widely from state to state – some of which proscribe com - pensated surrogacy outright. In New York, surrogacy agreements were unenforceable until the Child Par - ent Security Act became law in 2021, which allows for compensated gestational surrogacy pursuant to surrogacy agreements and for parentage orders to be granted prior to the birth of a child. New York law only applies to gestational surrogacy, whereby the sur - rogate’s own egg is not used to conceive the child. Arrangements whereby the surrogate is biologically related to the child remain unenforceable in New York and they are prohibited if the surrogate is being com - pensated. 1.5 Relevance of Marriage at Point of Conception or Birth Whether the parents are married at the point of the child’s birth, rather than at the point of conception, is relevant in the process of obtaining parental responsi - bility. In general, if a child is born of the marriage (and, in some states, born of a civil/domestic partnership), the parents of that child automatically obtain parental responsibility for the child. Under New York law, a child born to parents who are married at the time of the child’s birth is presumed to be “the legitimate child of both parents”, which is also referred to as the “presumption of legitimacy”. In addition, a recent decision by a New York appel - late division court held that a child’s legitimacy is also presumed for a child born of parents who were not married at the time of the child’s birth but who sub - sequently enter into a civil or religious marriage (see Tiwary v Tiwary , 189 AD 3d 518 (2d Dep’t 2020)).
2. Relocation 2.1 Whose Consent Is Required for Relocation?
When one parent wishes to relocate a child perma - nently to another country, the relocating parent gener - ally needs the consent of the other parent and/or any other individual who is a legal guardian of the child. 2.2 Relocation Without Full Consent If a parent wishes to move a child of the family per - manently out of the family home to a new country and does not have the written consent of the non-relo - cating parent or legal guardian, the relocating parent may still seek to relocate by applying to a court with jurisdiction over the child. Under the Uniform Child- Custody Jurisdiction and Enforcement Act (UCCJEA), the court with jurisdiction over the child is the court in the state where the child has resided for a period of six months or more. The court may grant permission for the relocation if it determines that relocation is in the child’s best interests. 2.3 Application to a State Authority for Permission to Relocate a Child 2.3.1 Factors Determining an Application for Relocation When a relocating parent cannot obtain the consent of the non-relocating parent or guardian, an application must be made to the relevant state court for permis - sion to relocate. Courts across different states con - sider various factors when evaluating such requests – all anchored by the paramount concern: the best interests of the child. In evaluating the request, the court typically considers the following: • the relocating parent’s stated reasons for wanting to relocate;
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