Defining Parentage in the Age of Surrogacy, Part 4: Intentional Fathers

Even though New York State amply defines and provides for the legal rights of fathers, the statutes do so within the framework of a traditional heterosexual couple. Beyond the biological ability to father a child, paternity rights provide a father with the legal context to make important decisions regarding his child's life such as the child’s medical care, religious upbringing, and education. As a legal parent, the father also obtains the right to continued parentage in the event the other legal parent becomes incapacitated; and the right of standing to contend for custody, visitation, and/or child support in the event of a breakup. The latter rights are especially critical where the bonds of filiation have been established.

The case of In the Matter of the Adoption of an Infant Whose First Name is Nicholas  illustrates some of the key issues surrounding paternity rights in the age of surrogacy.   Gary, Nicholas' biological father, legally married Anthony in Canada in 2004, several years prior to Nicholas' birth.  Though New York does not allow gay marriages to be performed within its jurisdiction, New York does recognize gay marriages legally performed in other jurisdictions.    In New York,  the presumptive parentage rights of  “husbands” with respects to the children born to their “wives” flow to same-sex couples as well.  As  discussed in my prior blog post with respect to In the Matter of Sebastian, because parentage rights for same-sex couples are not portable, second-parent adoption is the only way to insure these.  But unlike Sebastian's parents Mona and Ingrid,  Anthony faced several major obstacles on his road to becoming Nicholas' other father.

The first obstacle to fatherhood was the matter of finding a gestational surrogate in a state that permits it.  Surrogacy contracts are void in New York as against public policy.  Desirous of starting a family, Anthony's spouse Gary donated the sperm for an in vitro egg implantation in a surrogate domiciled in North Carolina.  Under the terms of her surrogacy contract, the gestational mother surrendered all parental rights to the child.  Both Gary and Anthony were present at Nicholas' birth and thereafter co-parented him.  But only Gary's name was on the birth certificate.  But unlike In the Matter of Sebastian, Anthony's name could not be entered on the birth certificate.  The child was not born in New York, and North Carolina does not recognize gay marriages performed legally in another jurisdiction.

It is clear from these facts that both Gary and Anthony intended that Nicholas be brought into the world.  While there is no binding case precedent in New York, there is persuasive authority in a leading case on intentional parentage from California.  In Johnson v. Calvert 851 P.2d 776 (Cal. 1993)., the California Supreme Court extended the definition of parentage found in the California Civil Code, sections 7000-7021.  This portion of the  California Code was adopted largely from the Uniform Parentage Act introduced into the U.S. Senate in 1975.   In California, parentage is based on the existence of a parent-child relationship rather than on the marital status of the parents.    

Johnson v. Calvert dealt directly with the parentage rights of a gestational surrogate mother (Anna Johnson) versus the rights of the couple who has intended that the child be conceived (Mark and Crispina Calvert).  In declaring Crispina the child's natural mother, the court defined what it means to be an intentional parent.  "We conclude that although the Act recognizes both genetic consanguinity and giving birth as means of establishing a mother and child relationship, when the two means do not coincide in one woman, she who intended to procreate the child--that is, she who intended to bring about the birth of a child that she intended to raise as her own--is the natural mother under California law." Johnson v. Calvert, at 790.  The Surrogate's Court in Matter of Nicholas referenced Matter of Sebastian, which in turn referenced Johnson v. Calvert in affirming that both Gary and Anthony had intended Nicholas' birth.

Gary and Anthony were petitioning the Surrogate's Court for the right to have Anthony's second-adoption proceedings filmed and distributed by CNN as part of Gay Pride Week.  One issue that flowed from this request pertains to New York's sealed adoption records statute.  Sealed adoption records remain the law in New York as codified in Domestic Relations Law (DRL) § 114..  The court in Matter of Linda F. M., 52 NY2d 236, 239 (1981), explained that the sealed records law “shields the child from possibly disturbing facts surrounding his or her birth and parentage,” a clear reference to the stigma of illegitimacy; “permits the adoptive parents to develop a close relationship with the child free from interference or distraction,” thereby giving the adoptive parent(s) the exclusive right as to whether to reveal the conditions of the child’s birth; and “provides the natural parents with an anonymity that they may consider vital,” protecting the identity of the birth mother.

In Matter of Nicholas, the court looked at the three interests served by the statute as explained in Matter of Doe, NYLJ, April 4, 2007, at 31, col 3 [Sur Ct, NY County]:  to protect the identity of the birth parents; to protect the privacy of adoptive parents and their newly formed family; and to protect the child from knowledge of his/her illegitimacy.

As to protecting the identity of the birth parents, the request was made by the birth father and the surrogacy contract protects the anonymity of the birth mother.  As to the privacy interest protected, it is owned by the adoptive parents.  In this case, it is the adoptive parents who intend to publicize the legal formalization of their family.  As to the third prong of the rationale, the Guardian ad litem appointed by the court noted that the very fact that Nicholas would have two intentional fathers as parents meant that the circumstances of his birth could not be kept secretive.   Therefore, the Surrogate's Court held that the adoption sealing statute was no bar to the filming of the Anthony's second-parent adoption by CNN.

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Defining Parentage in the Age of Surrogacy, Part 3: Mother at Law

On Christmas Eve in 2004, Mona and Ingrid were legally married in the Netherlands, the first country to allow same-sex marriages.  Ingrid is a Dutch citizen and a practicing attorney in New York.  Her spouse Mona is employed at the United Nations and is of Somali/Yemeni descent.  Desirous of starting a family but eager to preserve their ethnic and racial diversity, the women used assisted reproductive technology to achieve their mutual goals. 

As is the common practice with egg donors, Mona signed a surrender giving up her parental rights.  At the same time, she executed a side agreement with Ingrid.  Mona's ova were fertilized in vitro by an anonymous sperm donor of Dutch and Italian ancestry to match Ingrid's background.  After a successful implantation, Mona became the genetic mother and Ingrid became the gestational mother of boy they named Sebastian.  But even though she was legally married to Sebastian's mother,  Mona initiated an adoption proceeding in order to become the legal parent of her own child.

In a prior series on adoption, I have already examined the history and the New York statutes that create a new legal relationship between the child and the adoptive parents.  In this case, however, Mona was seeking to create a legal relation with her own child and the child of her spouse.  Mona was asking the Surrogate Court to become a mother at law.  But why?

The case of Matter of Sebastian, 25 Misc 3d 567 [Sur Ct, NY County 2009],  raises two key issues about the nature of modern parentage.  The first issue has to do with the portability of parentage rights:  are you a parent to your child everywhere you go?   New York recognizes valid same-sex marriages performed elsewhere (Martinez v. County of Monroe, 50 AD3d 189 [4th Dept 2008]),  and thus Mona and Ingrid enjoyed parentage rights in New York that flow from their legal marriage.  In New York,  the presumptive parentage rights of  "husbands" with respects to the children born to their "wives" flow to same-sex couples as well, making Mona's adoption of Sebastian unnecessary in New York. 

However, the Surrogate Court in Matter of Sebastian recognized that any parentage rights of a validly married resident same-sex couple may not be portable in states that explicitly prohibit same-sex co-parents from petitioning to adopt their partner's child, or the child of their relationship.  The issue of the portability of parentage rights for married same-sex couples is paramount because, unlike the parentage rights for traditional married couples, married same-sex couples do not enjoy presumptive parentage rights in states that do not recognize same-sex marriage.  Thus Mona would not be considered Sebastian's mother in these states, even though she is his genetic mother.

The only way that the Surrogate Court could guarantee the portability of Mona's parentage rights was to grant this genetic mother the right to adopt her own child, even though adoption is not used to affirm existing parental relationships.  Here, the court was asked to use adoption to bind the genetic mother to her own child to assure the portability of her parentage rights because she was not Sebastian's gestational mother.  Since states, even those who do not recognize same-sex marriage,  must give Full Faith and Credit to judicial decrees from sister states, including adoption, Mona was thereby granted full portability to her parentage rights.   Thus it was that Mona became a mother at law.

The court pointed out that amending Sebastian's birth certificate to include Mona as a parent would not have been sufficient to assert the portability of her parentage rights because a birth certificate is only prima facie evidence of parentage.  A birth certificate is a public record.  Under the Full Faith and Credit clause, a sister state can accord to that record no greater validity than the home state (30 Am Jur 2d, section 678).

The second issue addressed by the Surrogate Court in Matter of Sebastian goes to the equal protection of the laws:  are New York's family law statutes as written gender-based and thus unconstitutional because they deny women of any sexual orientation the equal protection of the laws?  To be fair, these laws precede the civil rights and women's movements, to say nothing of recent civil rights advances by the GLBT community.  But as written, New York's statutory scheme privileges the paternity rights of biological and "putative" fathers and provides a way for fathers to assert their parental rights.  The statutory scheme does not provide women the same equal legal opportunity to assert their maternity rights.   And because the New York statutory scheme for parentage is gender-based, the Surrogate Court raised the constitutional issue of equal protection in its opinion .

Under constitutional analysis, gender-based classifications are subject to heightened scrutiny, meaning that the government must show that a statute is related to an important government objective.  Traditionally, this objective has been to make sure that the child does not become a ward of the state, and thus a financial burden.  The laws were written at a time when men provided most of the financial support for households.  But with more and more women in the workforce and women financially able to provide for their children, these statutes now create legal inequities where in the past they created financial protection for women and their children.

The Surrogate Court found the New York statutes to be under inclusive, and chose to construe the statutes to avoid the constitutional infirmity, finding that the legislature would have chosen to extend parentage rights to genetic mothers and to provide the equal protection of the laws to genetic mothers like Mona.  The court provided to Mona the only remedy that would ensure full parentage rights and the portability of those rights anywhere in the world.  The court granted her petition to adopt her genetic child and the gestational child of her legal spouse.

In the next part of this series, I will examine the role of second-parent adoptions in creating modern families.  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.

Defining Parentage in the Age of Surrogacy, Part 2: Who is a "mother"?

In the early 1980s, the Infertility Center of New York placed some ads in area newspapers seeking women who would be willing to carry a child for an infertile couple.  One young woman, Mary Beth Whitehead of Bricktown, New Jersey, saw the ad in the Asbury Park Press and answered it.  The Infertility Center matched Whitehead with William and Elizabeth Stern of Tenafly, New Jersey.  On February 6, 1985 Whitehead and the Sterns executed a surrogacy contract wherein Whitehead, in exchange for $10,000,  agreed to be artificially inseminated with William Stern's sperm, to carry the resulting child to term, and then to give up all legal rights to the child at birth.  At the time, Whitehead was married to Richard Whitehead.

Under this surrogacy arrangement, Whitehead became the genetic surrogate mother to Stern's child through artificial insemination with Stern's sperm.  Had Whitehead not contributed an ovum, as in the case of in vitro fertilization using an anonymous egg donor, she would have been a gestational surrogate mother.  In this case, both genetic parents were known.  Elizabeth Stern did not contribute an ovum because she suffered from multiple sclerosis, the reason for which the Sterns had sought a surrogate in the first place.

At common law, the mother is defined as she who bears the child.   Because maternity rights are presumed, laws protecting maternity rights arising out of surrogacy are often absent.  Parentage of a child is defined by the birth of the child to a mother and the mother's marriage to the child's father.  Where the mother is not married to the father, she retains full custody rights to the child.  A surrogacy contract involving a genetic mother seeks to alter the common law understanding of "mother" by termination of parental rights between the birth mother and her child without the intervention of a court.  In New York,  grounds for the termination of parental rights are governed by statute and found in  Soc. Serv. Law, §§ 384-b, 358-a(3)(b).   The parent must be adjudicated as "unfit" before parental rights can be terminated.

On March 27, 1986 Whitehead gave birth to a daughter whom she named Sara Elizabeth Whitehead.  She and her husband Richard gave every indication that the child was theirs, and the child's birth certificate indicated that Richard Whitehead was the father.  At common law, the mother's husband is the presumptive father.  As per the terms of her surrogacy contract, she gave up custody of the child to the Sterns at their home on March 30th.  But less than a day later, Whitehead had second thoughts.  She became emotionally distraught and asked the Sterns to return the child to her for a week, whereupon she would return the child.   The Sterns complied, concerned over Whitehead's extreme distress.  Instead of keeping her word, Whitehead and her husband fled with the baby to her parents' home in Florida.  The details of the Sterns' legal attempts to reclaim custody of the baby are found in In re Baby M, 537 A.2d 1227 (1998).

The New Jersey Supreme Court found that surrogacy contracts offend public policy and are contrary to New Jersey statutes.  The court found the surrogacy contract invalid and unenforceable for two reasons.  First, termination of parental rights may not be done by contract.  The legal standard for determining whether parental rights can be terminated is the best interest of the child and not a contractual clause.  Second, an irrevocable agreement on the part of a birth mother to give up a child for adoption prior to the child's birth amounts to coercion to contract, making the agreement unenforceable.  The court pointed to additional conflicts with adoption laws:  prohibitions on the exchange of money for the right to adopt, with the exception of fees paid to non-profit approved adoption agencies; and laws that make the birth mother's consent to put her child up for adoption a revocable act.

Furthermore,  New Jersey's Parentage Act codifies the long-standing common law understanding of parentage.  The New Jersey Parentage Act provides that, where a married woman is artificially inseminated by a sperm donor and with her husband's consent, the law creates a parent-child relationship between the husband and the child, and not between the sperm donor and the child (N.J.S.A 9:17-44).   The New Jersey Supreme Court found that Whitehead's parental rights had not been terminated as a result of the surrogacy contract.  The court granted custody to William Stern but visitation rights to Whitehead.

As a result of the Baby M case, New York passed a law prohibiting surrogacy agreements as contrary to public policy (D.L.R. § 122).   Surrogacy contracts fracture the unified concept of motherhood by separating out the functions of the genetic mother,  the gestational mother, and the custodial mother.  There are fines and criminal penalties in New York for commercial surrogacy.  Non-commercial surrogacy contracts are de facto unenforceable.  But this law did little to settle the issue of who is a "mother."  The issue is particularly thorny in cases where a resulting birth is produced by assisted reproductive technology (ART).  

Unlike surrogacy, artificial insemination is not against public policy in New York.   Artificial insemination maintains the unified concept of motherhood.  Women who donate eggs anonymously are generally required by fertility doctors to sign a surrender, thereby waiving all parental rights and responsibilities.  New York goes further and denies any egg donor (the genetic mother) standing to initiate an action for custody.  Anonymous sperm donors generally sign contracts with a sperm bank and not with a mother, and so the donor's anonymity and waiver of parental rights are generally upheld.  However, in New York a contract waiving parental rights and responsibilities between a known sperm donor and a mother is generally unenforceable.  The court will use the "best interest of the child" standard to determine the parental rights and obligations of the sperm donor.

Because New York legitimacy laws only apply to married couples, courts have approved instances where an anonymous sperm donor can successfully waive his parental rights if the the woman is unmarried.  The mother then gains sole custody of her child and has no standing to claim child support.  

Where a mother is married, there is the legal presumption in New York that a child conceived with the husband's consent  through artificial insemination is the legitimate, natural child of the couple.  The sperm donor has no rights to the child.  The mother who has been artificially inseminated is considered to be both the genetic and the gestational mother.

There have been exceptions to the rule that in New York a mother is both the genetic mother and the gestational mother.  In Perry-Rogers v. Fasano, 715 N.Y.S.2d 19 (App. Div. 2000),  a New York court awarded custody of one Black fraternal twin whose white mother was mistakenly implanted with an embryo created with the sperm and ovum of another couple, the Rogers.  In a truly Solomon-like fashion, the court decided that Donna Fasano was the gestational mother of both twins, but the genetic mother of only one twin.  The court acknowledged the legal challenge brought about by ARTs to the concept of “mother”:  “It was only with the recent advent of in vitro fertilization technology that it became possible to divide between two women the functions that traditionally defined a mother, at least prenatally. With this technology, a troublesome legal dilemma has arisen: When one woman’s fertilized eggs are implanted in another, which woman is the child’s “natural” mother? (Perry-Rogers v. Fasano, at 24)”

The court presciently predicted that further challenges to the legal concept of “mother” as being both genetic and gestational in New York would be forthcoming.  ” (W)e [do not] necessarily accept the broad premise that in any situation where a parent, possessed of that status by virtue of having borne and given birth to the child, acknowledges another couple’s entitlement to the status of parent by virtue of their having provided the genetic materials that created the child, the birth parent automatically gives up all parental rights (Id., at 25).

We will look at this precise question in the next part of this series:  who is the "mother" when a woman donates her ova (genetic mother) for in vitro fertilization by an anonymous sperm donor with the intent of having her spouse, another woman, carry the child (gestational 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.