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 “Sign me up!” under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published.   Thank you.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

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