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.

Adoption and Inheritance in New York, Part 1. A Brief History of the Issue

As a young girl, I was fascinated by the stories of Anne of Green Gables (1908), Pollyana (1913), and the comic strip Little Orphan Annie (1924).  These stories of adoption spoke to me of acceptance and of intergenerational care.  What I did not realize at the time was that these stories also reflected a new trend in the history of adoption and of family construction, a shift from an emphasis on strict bloodlines for the purpose of inheritance to the acceptance of adoption to create or expand a family.  

As in other jurisdictions, adoption in New York is, strictly speaking, a creature of the law.  The law in New York concerning inheritance rights of adopted children would also change as a result of changes in society, creating a uniquely legal concept of the family through the expansion of inheritance rights to include the adopted child.  Literature and the law would walk hand in hand to bring about change.

The story of Anne Shirley in Anne of Green Gables represents a transitional phase in the history of adoption.  Marilla and Matthew Cuthbert, sister and brother, had decided to adopt a boy to help them out on the farm because they were getting too old to take care of the chores themselves.  Orphanages in the 19th century regularly adopted out children as a form of cheap farm labor.  Through a series of mishaps, the Cuthberts received precocious Anne instead.  With her flaming red hair and freckles, Anne's cheery disposition soon warmed the heart of Matthew and even crusty Marilla, exemplifying the more desired kind of adoption based on sentiment rather than work.  This desired kind of adoption would progressively finds its way into the spirit and language of the law.

Anne's flaming red hair is also the dominant characteristic of Little Orphan Annie.  Based upon Indiana poet Charles Whitcomb Riley's poem Little Orphant Annie (1885) written in the Hoosier dialect, Riley's Annie is adopted out to be a household servant. 

Little Orphant Annie's come to our house to stay,

An' wash the cups an' saucers up, an' brush the crumbs away,

An' shoo the chickens off the porch, an' dust the hearth, an' sweep,

An' make the fire, an' bake the bread, an' earn her board-an'-keep;

But Annie also had an unusual gift:  she could spin goblin stories for the children after the evening meal, morality tales where the children are exhorted to obey their parents.  The poem focused on the beneficial moral effects of the adopted child, in contrast with real orphans who often were associated with disorderly conduct, ignorance and poverty.

Annie would not have ridden out on an orphan train, a particularly painful part of the history of adoption in New York from 1854-1929.  The orphan train was the brainchild of New York Protestant reformer Charles Loring Brace, author of The Best Method of Disposing of Our Pauper and Vagrant Children (1859).  Alarmed at the growing number of homeless and disorderly children in New York, particularly Irish Catholic immigrant children who had arrived during the Irish Potato Famine, Brace feared that crime would increase in the city as a result.  His Children's Aid Society placed out only boys to rural regions of America, in what was in large part a contractual arrangement.   

Riley's Annie became the prototype for Harold Gray's syndicated cartoon Little Orphan Annie (1924), which appeared at the height of the Progressive Movement in the United States.  The Progressives Movement in New York would make significant inroads in adoption reform in the United States. 

Massachusetts had passed the first adoption law in 1851, the first law .  Section 6 dealt with the issue of inheritance.

"A child so adopted, as aforesaid, shall be deemed, for the purposes of inheritance and succession by such child, custody of the person and right of obedience by such parent or parents by adoption, and all other legal consequences and incidents of the natural relation of parents and children, the same to all intents and purposes as if such child had been born in lawful wedlock of such parents or parent by adoption, saving only that such child shall not be deemed capable of taking property expressly limited to the heirs of the body or bodies of such petitioner or petitioners."

If the adopting couple was childless, then the adopted child could inherit freely from the adoptive parents.  However, if the couple already had natural children, the law prohibited the adopted child from inheriting from the adoptive parents.  Under the law, adopted children were not considered to be the equals of natural children with respect to inheritance rights. 

New York began amending its adoption laws beginning in 1873.  One feature of New York's early adoption law with respect to inheritance was a provision that allowed adopted-out children to inherit from their natural parents (In re Landers’ Estate, 100 Misc. 635, 166 N.Y.S. 1036 (Sur. Ct., Oneida Co. 1917)).  In 1963, New York amended its adoption statute Domestic Relations Law (DRL) § 117 with respect to inheritance.   For the purpose of inheritance, the amended law ended the adopted-out child's right to inherit from the biological parents, but at the same time gave the adopted child the right to inherit from the adoptive parents.

The law was amended in 1966, giving the biological parent the right to provide a bequest to an adopted-out child by last will and testament.  For the first time, the law also addressed the issue of a child who was adopted by a step-parent, an acknowledgement that new family relationships were also being forged by remarriage.

In 1986, as a result of a Court of Appeals decision in In re Best, 66 N.Y.2d 151 (1985), the law was amended to state that the adopted-out child was deemed a "stranger" with respect to the biological parents.  The adopted-out child may not inherit from the natural parents through a class gift in a will or a trust, or through intestacy.  However, the adopted-out child can still inherit from the biological parents if the adopted-out child is specifically named in the biological parent's will or trust.  In the case of a class gift, the adopted-out child must be specifically named as belonging to that class.

However, the new law created particular issues with respect to step-families and with respect to inheritances from grandparents.  The law was quickly changed in 1987 to provide for inheritance rights if  (1) the child’s adoptive parent is (a) married to the child’s birth parent, (b) the child’s birth grandparent or (c) a descendant of such grandparent; and (2) the testator or creator is the child’s grandparent or a descendant of such grandparent (DRL § 117(2)(b)).  This remains the law in New York with respect to inheritance rights of adoptees.

This brief history into the the inheritance rights of adopted children in New York is yet another reason as to why you should have an attorney draft your Will instead of relying on boilerplate forms that are not tailored to your unique situation. After all, no person’s estate and family situation is like any other, and your uniqueness should be reflected in the way that your Will is prepared: a Will that is specifically drafted for you. Your Will is, after all, one of the most important documents of your life and you should have the benefit of expert legal assistance in drafting it.

In the next segment of this series, I will look at some specific and fascinating New York cases involving adopted-out children and inheritance rights.  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.