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Interesting Case Decides Parenting Rights of Surrogate Mother


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.”

One of the eggs which had been retrieved from the Genetic Mother’s ovaries and fertilized with the sperm of the Genetic Father was transferred into the uterus of the Gestational Mother. The Gestational Mother was confirmed pregnant and ultimately delivered a child on May 1, 2009, at a hospital in Nassau County.

Following the birth of the child, the Gestational Mother and her husband, the plaintiff Gestational Father and together the Gestational Parents executed documents relinquishing any and all parental rights to the child to which they may have been entitled.

Within the statutorily prescribed period of five days, the hospital submitted the birth registration documentation to the defendant, New York State Department of Health (hereinafter DOH), which identified the Gestational Mother as the mother of the child but did not identify a father.

Prior to the birth of the child, the Genetic and Gestational Parents jointly commenced this action seeking a judgment (1) declaring the Genetic Parents to be “the legal mother and legal father,” of the child being carried by the Gestational Mother, (2) enjoining the hospital from issuing a birth certificate identifying the Gestational Parents as the child’s parents, and (3) enjoining the DOH from listing the Gestational Parents as the child’s parents on the birth certificate.

In an order entered January 21, 2010, the Supreme Court, inter alia, granted that branch of the DOH’s motion which was to dismiss the plaintiffs’ amended complaint pursuant to CPLR 3211(a)(7) for a failure to state a cause of action. The Supreme Court determined that the plaintiffs’ amended pleading was “fundamentally flawed” since “[i]n the event that the Legislature has failed to adequately contemplate surrogate births, the failure of Family Court Act article 5 to provide a vehicle for resolving the type of controversy involved here is to be redressed [by it] – which created and wholly controls paternity proceedings – and not the courts'”. The Supreme Court went on to state “moreover, an alternative remedy exists in the form of an expedited adoption, which, notably, was capable of being completed far more expeditiously than this action.”

Through the years, the law has tried to keep pace with medical developments in the field of assisted reproduction. Despite this, the law has not yet caught up with science.

“Existing laws on adoption and artificial insemination permit surrogate parenting when the arrangement is not commercial and remains undisputed. The legislation proposed by the Task Force would not prohibit the arrangements under these circumstances. Nor would it override existing statutes permitting the payment of reasonable expenses to women arising from pregnancy when such expenses are paid in connection with an adoption and are subject to court approval.

In 1998, the Task Force issued an updated Executive Summary of the “Task Force on Life and Law,” which, in addressing children that result from gestational surrogacy, 2 stated that “the determination of maternal rights and responsibilities in gestational surrogacy arrangements should reflect both the genetic and gestational contributions to motherhood”. Significantly, the report recommended that “if both the genetic mother and the birth mother agree, after the child is born, that the genetic mother should be recognized as the child’s sole legal mother, the law should provide a mechanism for achieving that result efficiently, without the need for a formal adoption proceeding”

The issue of declaring the maternity of a child born from an embryo created from an egg of a genetic or biological mother and then carried by a surrogate or gestational mother is one of first impression at the appellate level. However, this issue concerning gestational surrogacy and the request for a declaration of maternity has arisen in two reported Supreme Court cases and one reported Family Court case.

The genetic parents filed a petition, pursuant to article 5 of the Family Court Act, naming the gestational parents as respondents in the Family Court, seeking a declaration of maternity and paternity. After considering the affidavits of all four parties and their testimony, the results of DNA and blood-testing of the children, the genetic parents, and the gestational mother, which essentially confirmed that the genetic parents were the biological parents of the children and excluded the gestational mother as the biological mother of the children, and noting that the gestational parents as respondents did not contest the relief sought by the genetic parents, the Family Court directed the entry of an order of filiation declaring the genetic father to be the father of the twins.

Based upon the undisputed evidence that the children were born from the eggs of the genetic mother fertilized with the sperm of the genetic father and not from the eggs or sperm of the gestational parents, and the results of the genetic testing, the Supreme Court concluded that the genetic mother was the legal mother of the children. As a result, it granted the petition, declared the genetic mother the “mother of the petitioner children,” and directed the City to “issue new birth records for the children reflecting that fact”.

Subsequent to the birth of the children and the genetic father obtaining an order of filiation from the Family Court, the plaintiffs moved for a declaration that the genetic mother was the mother of the children. In support of their motion, the plaintiffs submitted the gestational mother’s sworn “Relinquishment of Parental Rights.” In opposition, the New York City Department of Health and Mental Hygiene took the position that it would not oppose the post-birth amendment of the birth certificates provided that the genetic parents established through DNA evidence that they were the genetic mother and father of the children or if the genetic parents were named the legal parents of the children through a formal adoption proceeding.

The Supreme Court determined that, due to its constitutional grant of unlimited original jurisdiction, it had the authority to determine the identity of the children’s legal mother.

The Supreme Court in Doe addressed the fact that there is no applicable provision prohibiting the Supreme Court from issuing an order of maternity: “Section 124 of the Domestic Relations Law specifically leaves open the type of legal proceeding that may be instituted following the birth of a child born pursuant to a surrogate parenting contract, and does not limit the parties to a formal adoption proceeding”.

Significantly, although there is no statutory provision providing for a declaration of maternity, there is also no provision prohibiting such declaration. Furthermore, the Domestic Relations Law does not limit the parties to a formal adoption proceeding as suggested by the Supreme Court here. Instead, the Domestic Relations Law simply provides that the gestational carrier’s participation in a surrogate parenting contract should not be held against her.

While the DOH correctly notes that both Doe and Arredondo involved determinations made by the New York City Department of Health and Mental Hygiene which, as a New York City agency, is exempt from Public Health Law article 41, this distinction is irrelevant. In both cases, the Supreme Court recognized its inherent authority to render a declaratory judgment that a genetic mother is the legal mother of a child born to a gestational carrier.

In addition, New York City also has a regulation comparable to that of New York State regarding the amendment of birth certificates. The statutory language in section 17-167 of the Administrative Code of the City of New York that a “new birth record shall be made whenever notification is received by the department from the clerk of a court of competent jurisdiction or proof is submitted of a judgment, order or decree relating to the parentage of the person”.

The Supreme Court has the authority to determine a child’s legal parentage under article 4 of the Family Court Act. In a case, upon which the Supreme Court here relied in granting that branch of the DOH’s motion which was to dismiss the amended complaint pursuant to CPLR 3211(a)(7), the Court of Appeals held that the Family Court has the inherent authority under article 4 of the Family Court Act to determine whether a female is, in fact, a child’s legal parent.

The Court of Appeals, in reversing the decision and order of this Court, found that the Family Court had “subject matter jurisdiction to adjudicate a support petition brought pursuant to Family Court Act article 5-B by a biological parent seeking child support from her same-sex partner” without deciding whether it was also within the Family Court’s article 5 jurisdiction.

“Family Court indisputably has jurisdiction to determine whether an individual parent-regardless of gender-is responsible for the support of a child. Moreover, statutory jurisdiction-as Family Court has-carries with it such ancillary jurisdiction as is necessary to fulfill the court’s core function. Thus, because Family Court unquestionably has the subject matter jurisdiction to ascertain the support obligations of a female parent, Family Court also has the inherent authority to ascertain in certain cases whether a female respondent is, in fact, a child’s parent”.

Based on the plain reading of this statute, an order relating to adoption is not necessary for the issuance of a new birth certificate. Accordingly, the Supreme Court erred in dismissing the complaint, finding that no cause of action was stated. Once a court of competent jurisdiction issues an order or judgment “relating to the parentage,” the DOH commissioner, upon notification, “shall” issue a new certificate of birth.

“Adoptions are complicated and filled with technicalities such that it is critical, if not imperative, to employ a lawyer at considerable cost. Filiation proceedings are considerably easier, and are often pro se, while statutory acknowledgment of paternity does not require, or even contemplate, a lawyer’s assistance. Adoption proceedings are generally lengthy, taking many months, while both paternity procedures are quick and easy. Adoption requires an intrusive (and often expensive) professional home study’ involving intimate details of a couple’s relationship, finances, family and living situation, as well as fingerprinting and a mandatory check for criminal record and any prior reported child abuse or neglect. There are no such requirements for a finding of paternity”

The relief requested by the plaintiffs does not interfere with the reporting requirements under article 41 of the Public Health Law. The plaintiffs aver that they “are not requesting that the gestational carrier never appear on the child’s birth certificate, only that a hearing be held shortly after birth as part of a declaratory judgment action to adjudicate the child’s legal parentage.”

Since a declaratory judgment action would satisfy Public Health Law § 4138 and, under the circumstances, is the most appropriate mechanism to adjudicate legal parentage, the Supreme Court failed to appreciate its power to issue a declaration under CPLR § 3001 when it concluded that the issue should be addressed by the Legislature.

Accordingly, given that Domestic Relations Law § 122 was passed based on the recommendations of the Task Force, the Supreme Court erred in finding that it did not have the authority to issue an order of maternity to the Genetic Mother without resorting to the artifice of a formal adoption proceeding and that the first cause of action of the amended complaint failed to state a cause of action. Moreover, given that there is no potential conflict over the custody and care of the child, the validity of the underlying contract is immaterial to this case, as the Supreme Court was not being asked to enforce such a contract.

Accordingly, the order is reversed insofar as appealed from, on the law, and that branch of the defendant’s motion which was to dismiss the amended complaint pursuant to CPLR 3211(a)(7) is denied.

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