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 share this post and 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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