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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