This is a Family case wherein Plaintiffs appealed in an action for a judgment, inter alia, declaring the plaintiff D.Y.-V. to be the legal mother of a child born on May 1, 2009, to the plaintiff N.N. and declaring article 8 of the Domestic Relations Law and Family Court Act §§ 517 and 542 unconstitutional and void and, upon such declaration, directing the defendant to amend the child’s birth certificate, as limited by their brief, from so much of an order of the Supreme Court, entered January 21, 2010, in Nassau County, as granted that branch of the defendant’s motion which was to dismiss the amended complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action.
The underlying facts are not in dispute. In 1999, the plaintiff (hereinafter the Genetic Mother) underwent a hysterectomy after it was discovered that her uterus was surrounded by a malignant tumor which rendered her unable to conceive, carry, and give birth to a child. Her ovaries were left intact.
After her subsequent marriage to the plaintiff T.V., the Genetic Mother desired to have a biological child with the Genetic Father. In order to do so, the plaintiff Gestational Mother, a close friend of the Genetic Parents, offered to act as a gestational surrogate of the eggs of the Genetic Mother which had been fertilized with the sperm of the Genetic Father through in vitro fertilization. No fee was sought by or provided to the Gestational Mother as she undertook to carry the Genetic Parents’ child “out of friendship, compassion, and her desire to assist the [Genetic Parents] in becoming parents of their own biological child.”