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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Adoption and Inheritance in New York, Part 2: Just (Jell-O) Desserts under the Best Rule

In 1974, 19-year old Oregon native Elizabeth McNabb set out to find her biological parents armed with one clue offered by a family gynecologist.  Elizabeth's adoptive parents had revealed her adoption to her when she was nine years old.  They also gave her an important clue:  they told her that a family gynecologist had handled her birth.  At age 15, Elizabeth had asked the gynecologist about her birth mother.  The gynecologist demurred and offered scant information about Elizabeth's birth mother, other than that her mother had been a "bohemian.".  But after McNabb became a mother herself, she redoubled her efforts to find out about her mother.  Nothing could have prepared her for her ultimate discovery, that her mother was an heiress to the multi-million Jell-O fortune, or for a legal journey that would end in New York's highest court.

Prior to 1998 and the passage of Measure 58, Oregon's adoption records were sealed.  This was the standard policy governing most state laws regarding adoption records, including New York.  In 1935, New York's Governor Lehman signed the closed record law that remains the law in New York today.  Confidentiality was advocated to minimize the stigma of illegitimacy, to prevent unwanted contact between children and their birth mothers, and to make it possible for some adoptive parents to never reveal to the child that they had been adopted. 

New York courts, as well as courts in other states, effect confidentiality by producing new birth certificates listing the names of the adoptive parents names as the parents at the time of the issuance of the adoption decree. The original birth records containing the names of at least the birth mother are then sealed away.

Sealed adoption records remain the law in New York. 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.

Because her records were still sealed in Oregon in 1988, Elizabeth McNabb petitioned the judge who had issued her adoption decree to open her sealed record.  She pleaded a medical exception that existed in the then-Oregon law, saying that she needed to know her medical history because she was now a mother herself.  She argued on behalf of the welfare of her children.  The judge was persuaded by the argument and ordered that McNabb's original birth certificate be sent to her.   That is when she discovered that her birth mother was a certain Barbara Woodward of Rochester, N.Y.

New York also has a medical exception for the unsealing of original birth certificates of adopted out children.  The provision is contained in DRL § 114(4).   As a first step, the adopted out child, the petitioner,  must obtain the certification of a doctor licensed to practice in New York stating with specificity why this medical information is required:  "Certification from a physician licensed to practice medicine in the state of New York that relief under this subdivision is required to address a serious physical or mental illness shall be prima facie evidence of good cause. Such certification shall identify the information required to address such illness."  Only in the case of an immediate medical emergency may the court grant, at its discretion, direct access to the adoption records by the petitioner.

In all other cases the court will appoint a guardian ad litem or another disinterested person to examine the original adoption records for the purpose of satisfying the petitioner's medical request.  The birth person will be given the opportunity to disclose the requested medical information, or to grant the request to examine the birth parent's medical records.  The guardian ad litem will then report the findings to the court.   In some cases, "the court may in its discretion authorize direct disclosure or access to and inspection of the adoption records by the petitioner" where appropriate.

Having learned her birth mother's name and hometown, McNabb became calling Woodwards in Rochester, New York.  Her diligence paid off:  she found a Barbara Woodward who had married and moved to Maine.  McNabb then called Woodward, who confirmed that she was indeed her birth mother.  They decided to meet.  McNabb, then living in Washington State, flew cross country and spent four days at Woodward's farm in Genesse County in upstate New York.

During her visit, McNabb learned that she was the result of her mother's relationship with a married man, and that Woodward had given birth in Oregon in order to cover up the stigma of illegitimacy.  Woodward had subsequently married and was the mother of two other daughters,  Stobie Woodward Piel and Lila Piel-Ollmann.  McNabb also learned that Woodward was an heiress to the Jell-O fortune. 

According to a Huffington Post story, Woodward's grandfather Orator Woodward had purchased the Jell-O trademark in 1899 for $450 from  Pearle Bixby Wait, a carpenter in Le Roy, New York,.  Wait had created the dessert by mixing fruit and gelatin in 1897, but the door-to-door sales business never took off.  By the time of Wait's death in 1915, Woodward had turned the dessert into a multi-million dollar industry. Orator and his wife Cora had six children.  Their son Donald's first marriage was to Florence Stobie, Barbara's mother.

 

Barbara Woodward Piel died in 2003.  The Woodward family fortune was controlled by two trusts established in 1926 and 1963.  At issue was whether New York law permitted an adopted out child to receive a bequest from these trusts.

 

The Surrogate's Court in Monroe County ruled that McNabb was not a descendant under the terms of the trust, and thus was not entitled to a third of her mother's estate valued at more than $10 million.  The court relied on a ruling in Matter of Best, 66 NY2d 151 (1985).  The court in Matter of Best held that a class gift, a testamentary gift giving a sum to an unspecified number of persons who will be determined at the time of the donor's death, did not presumptively include adopted-out children.   In order to receive a gift under the Best rule, an adopted-out child would need to be specifically named in the Will or trust.

 

McNabb appealed the ruling, and the Appellate Division Fourth Department reversed the lower court's ruling, in part because the trusts had been executed prior to New York's 1963 and 1966 amendments to its adoption law (see my prior post on the history of adoption in New York for more details).

 

New York's highest court, the Court of Appeals, reversed the Appellate Division and reinstated the Surrogate's rulings.  In Matter of Piel, 2008 NY Slip Op 02082 (10 NY3d 163), decided on 13 March 2008, the court once again relied on Best and added several policy considerations.  Among these were the difficulty of a trustee closing out a class for the purpose of estate administration for fear that a secret, adopted out child might be lurking out there, and the State's interest in the finality of court decrees and titles to property.  Elizabeth McNabb did not receive a part of her mother's bequest under the terms of the two trusts.

 

Could the result have been different?  Yes.  Had Barbara specifically named her adopted-out child in her estate planning documents, Elizabeth would have received her share of her birth mother's estate.  Clearly Barbara Woodward Piel welcomed the reunion with her adopted-out daughter, and Elizabeth had established relationships with her half-sisters -- the warm relationships would not survive the legal wrangling.  But Barbara had not changed her Will to identify Elizabeth by name as her adopted-out child.  The Piel case provides a cautionary tale for reviewing your estate plans with your attorney on a yearly basis to account for the changes in your life.  Your attorney will then be able to offer suggestions based upon the current state of the law in New York.   No boilerplate forms can provide this level of protection for your family and your wishes.

 

In the next segment of this series, I will look at yet another fascinating New York case 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.