Defining Parentage in the Age of Surrogacy, Part 1: Who is a Parent?

On the surface, the question of who is a parent may seem simplistic or even obvious. But from a legal perspective, the issue of parentage has become a challenging one in the age of assisted reproductive technologies (ART) that include in vitro fertilization, surrogacy, genetic vs. gestational motherhood, etc. In this series, I will explore the question of parentage by looking at both the New York State statutes that govern parentage as well as some recent cases that are defining the legal framework for this issue.

At common law, the issue of parentage was simple. The mother was she who bore and delivered the child. Parentage was defined by birth to a mother and her marriage to the child's father. Any legal  impediment to marriage failed to confer this presumptive paternity.  Once the child was born, the child's property rights flowed through the husband of the child's mother. At law, the husband was considered the presumptive father of his wife's children. This remains the state of the law today (Michael H. v Gerald D., 491 US 110 (1989)), and is codified in New York in Family Court Act (FCA).

At common law, any legal questions regarding parentage or lineage involved issues of paternity exclusively.  This remains largely the case today, and the statutory scheme in the New York Code reflects this gendered language and thinking about parentage.  And while the rights of a mother to her child may be presumptive in this statutory scheme, they become at issue in cases where advanced reproductive technologies are used in procreation.  As we shall discover in this series, defining parentage is becoming a complicated matter.

Because legal rights historically have been conferred on children through their fathers, mothers of children born out of wedlock traditionally have sought legal protection for their children through paternity proceedings.  This is still the case in New York today as codified in FCA § 513. The Family Court has the exclusive original jurisdiction for all paternity proceedings in New York.

Of the many benefits that flow to children from having two recognized legal parents, one very tangible right is that of collecting social security benefits from both parents.  For the purposes of eligibility, the Social Security Act defines "child" according to the inheritance laws of each state (42 USC § 416 [h] [2]) .  Inheritance laws differ in each state, and in  New York are governed by the Estates, Powers & Trusts Law (EPTL).  Please refer to my prior post on this issue.

Because it is in the best interest of the child that the child have the benefit of two parents, New York law provides for a simplified way for an unwed father to acknowledge paternity.  Paternity may be acknowledged prior to the birth of the child through a procedure established in Public Health Law § 4135-B (1)(a):  "Immediately preceding or following the in-hospital birth of a child to an unmarried woman, the person in charge of such hospital or his or her designated representative shall provide to the child's mother and putative father, if such father is readily identifiable and available, the documents and written instructions necessary for such mother and putative father to complete an acknowledgment of paternity witnessed by two persons not related to the signatory. Such acknowledgment, if signed by both parties, at any time following the birth of a child, shall be filed with the registrar at the same time at which the certificate of live birth is filed, if possible, or anytime thereafter."

Paternity may also be established after birth "by a written statement, witnessed by two people not related to the signator or as provided for in section four thousand one hundred thirty-five-b of the public health law. Prior to the execution of such acknowledgment by the child's mother and the respondent, they shall be advised, orally, which may be through the use of audio or video equipment, and in writing, of the consequences of making such an acknowledgment. Upon the signing of an acknowledgment of paternity pursuant to this section, the social services official or his or her representative shall file the original acknowledgment with the registrar (Social Services Law § 111-k (a))."  Among the consequences of acknowledging paternity is that the birth mother may file for child support from the father in Family Court.

After the acknowledgment is filed with the registrar, a new birth certificate will be issued that reflects the names of the birth mother and the "putative" father (Public Health Law § 4138 (1)(e)).  The father remains "putative" even after acknowledgment of the child because the presumption of paternity is conferred only upon a man married to the birth mother. 

 

Parentage of a child can also be conferred through adoption.  Adoption is a creature of statutory law because it runs counter to the common law principles of parentage. Through adoption, courts create new legal relationships between the parent(s) and the child.  Please refer to my prior series on Adoption and Inheritance in New York for more detailed information.

In the next installment of this series, I will examine how reproductive technologies are challenging our established notions of who is the child's mother.   I invite you to join my list of subscribers to this blog by clicking on "Subscribe to" on the left-hand side of the page so that you can receive a notification when the next installment has been published.   Thank you.

The Carvel Soft-Serve Empire: Avoiding an Estate Meltdown

When I was growing up, one of my favorite treats was a Carvel chocolate-dipped vanilla soft-serve cone.  And  no birthday party was complete without a Carvel ice cream cake.  Tom Carvel was able to parlay my sweet tooth and millions of others into an empire at one time valued at $250 million.  When he died in 1990, he left behind his wife, the former Agnes Stewart, who had once loaned her future husband $15 to begin his ice cream business.  It proved to be a spectacular investment.  

Tom Carvel owed his spectacular good fortune to a flat tire.  When Carvel began his business in Hartsdale, New York in 1929, he used a truck to bring his homemade confection to his clients.  One day, a tire blew in the proximity of a pottery store parking lot.   With his ice cream quickly melting, Carvel decided to start selling right from his parked truck.  Thus began the idea for soft serve ice cream, which Carvel refined over time.  He then worked out a deal with the pottery store so that he could sell his ice cream in the parking lot by running an electrical wire to keep his confection refrigerated.  His sales took off.

In 1936 Carvel purchased the pottery store and formed the Carvel Brand Corporation.  Carvel realized that there was money to be made from real estate as well.  Having established a successful business model, Carvel proceeded to map out a plan to franchise his business.  As part of his franchising model, Carvel purchased the properties upon which his franchisee's store would be located, leasing back the space to the franchisee as part of the license agreement.  Thus the expansion of the Carvel brand also meant the expansion of the Carvel real estate holdings.

A known control freak, Carvel fought for years with the Federal Trade Commission against antitrust charges.  He required his franchisees to attend a three-month intensive training program, and the purchase of all supplies were to come directly from the Carvel Brand Corporation.  While this mentality may have served him well in business, the Will that he executed reflected his need to control from the grave.  The Will became the fodder for controversy and chaos.

His estate planning needs were relatively simple.  He and Agnes had no children, and his intent was to provide for Agnes during her lifetime and after her death the estate would go to charity.  There were several simple ways to accomplish this.  One way would have been to purchase a non-probate asset, such as an annuity, with Agnes as the beneficiary.  She could then have received structured payments immediately after his death.  

By naming a disinterested executor (he would instead name seven interested executors), such as a bank or law firm, Carvel could have assured the continuity needed to administer his large postmortem estate without controversy.  And while there are fees associated with this option, it may be a wiser course of action than the litigation costs associated with squabbling executors and beneficiaries. 

His Will would still have provided for the statutory spousal elective share.  Under New York Estates, Powers and Trusts Law (EPTL) § 5-1.1, a surviving spouse has the option of taking the the greater of $50,000 -or- 1/3 of the net estate. 

The rest of the estate could have been given to charity through an irrevocable charitable remainder trust. §664 of the Internal Revenue Code of 1986 as amended provides for either the payment of a fixed amount through a charitable remainder annuity trust (§664(d)(1)(D)), or a percentage of trust principal through a charitable remainder unitrust (§664(d)(2)(D)).  Carvel would have received two immediate benefits.  He could have claimed a charitable income tax deduction.  And given his sizable real estate portfolio, the estate would not have had to pay immediate capital gains taxes as the trust disposed of the trust property in its portfolio.

What Tom Carvel left behind instead when he died of a heart attack in 1990 was a chaotic estate.  Nine years later, the estate was still in litigation.  A lawsuit filed by his niece Pamela Carvel against the Thomas and Agnes Carvel Foundation in 1999 before the Second Circuit Court of Appeals (188 F.3d 83 (2nd Cir. 1999)) revealed that Tom and Agnes had executed "mirror wills," or two separate but identical Wills, each naming the Foundation as the beneficiary of their entire residuary estate.  At the same time, they executed a reciprocal agreement agreeing to refrain from changing their Wills or making certain transfers.

In addition to the Foundation, Carvel had created at least five other entities:  a Florida trust for his wife, a charitable remainder unitrust, two real estate holding companies, and the estate created by the mirror Will containing the statutory spousal election share and bequests to 83 different beneficiaries.

A year before his death, Tom Carvel sold his 700 stores to Middle East investors for a reported $80 million.  In the years following his death, a good portion of that sum was spent on litigation over the estate.  His widow Agnes, one of seven named original executors of his estate,  stepped down as executor and Foundation board member and fled to London in the wake of a call for a capacity hearing.  She died in London in 1998, having herself litigated against the estate to received the $600,000 quarterly payments stipulated in her husband's Will.  A well thought-out estate plan could have avoided this strife and achieved Tom Carvel's postmortem goals.

I invite you to join my list of subscribers to this blog by clicking on "Subscribe to" on the left-hand side of the page so that you can receive a notification when the next installment has been published. Thank you.