With our dysfunctional legislature and the longtime disproportionate influence of certain religious lobbies, New York State has the dubious distinction of a body of archaic family law statutes that are clearly out of synch with the situation "on the ground" affecting how people actually live in the 21st century. The New York Law Journal brought to light this week a decision rendered on October 22 by Suffolk County Supreme Court Justice Peter Fox Cohalan that well illustrates this point, in the case of Feigenbaum v. New York State Department of Health, No. 09-19430.
This case involved two married couples on Long Island who worked out an informal surrogacy arrangement so that Elaine Feigenbaum, whose medical situation made her unable to carry out a successful pregnancy, could nonetheless have a biological child with her husband Marc. Her good friend Carly Macomber, who had successfully given birth to her own children, volunteered to serve as a gestational surrogate for her friend, with her husband's permission. Using Marc's sperm and Elaine's eggs, successful in vitro fertilization was accomplished and a child was born on June 19, 2009. Just days later, the Maccombers executed statements relinquishing any parental rights and Justice Cohalan issued an order of paternity for Marc Feigenbaum.
But Cohalan refused to issue a companion order of maternity for Elaine Feigenbaum, even though the child was conceived with her egg, she was the intended mother of the child by all parties concerned, and neither of the Macombers had any interest in asserting parental rights, as evidenced by the Relinquishment of Parental Rights they had signed. What's the hang-up? Although there is a state statute specifically authorizing paternity proceedings, there is no similar statute authorizing maternity proceedings.
That is to say, our out-of-date Domestic Relations Law was conceived at a time when the idea that there could be two mothers physically related to a child – a genetic mother and a gestational mother – was not contemplated. Our statutory framework for family law in New York largely predates the revolution in reproductive technology that has unfolded over the past half century, and what changes have been made have had a very conservative tilt, no doubt due in part to the heavy influence of certain religious lobbies. Thus, for example, when surrogate parenting made a big news splash in the NY metro area due to the New Jersey "Baby M' case, the response of New York's legislature was to pass a statute making surrogacy a crime, thus establishing a public policy against surrogacy contracts, rendering them unenforceable, and rendering the parties to them subject to criminal penalties. Indeed, under this statute, according to Justice Cohalan, it doesn't even matter if there is no commercial element to the agreement, as in the case of the Feigenbaums and the Macombers, where the surrogate is a volunteer and has no interest in asserting parental rights or receiving compensation.
The entire issue of how surrogacy contracts should be treated under the law is quite controversial, and states vary widely in how they have addressed it. In the NJ Baby M case, the state supreme court found a paid surrogacy contract unenforceable on grounds of public policy. Some states have legislated against surrogacy, not all going so far as New York to make it illegal, but at least making the agreements unenforceable. California has been receptive to new reproductive technology, with the courts and ultimately the legislature adopting policies that support "intended" parenthood. Connecticut has also proved accommodating to the practice, to the extent that gay men from other states have frequently contracted with Connecticut women to bear children for them, leading to a small outpouring of litigation a few years ago when the state government had difficulties adjusting to the resulting demands for revised birth certificates showing two legal fathers and no legal mother.
Although New York has no trouble with the situation where a married woman obtains a sperm donation in order to have a child because her husband is incapable of impregnating her, it has not legislated to deal with the other family constellations generated by the state's large LGBT community, or the occasional surrogacy arrangements made by heterosexual couples such as the Feigenbaums and the Macombers. In the absence of a specific statutory authorization and in the face of the criminal condemnation of surrogacy contracts, Justice Cohalan opined that he was constrained to deny the Feigenbaum's petition for a declaration that Elaine is the legal parent of the child.
Instead, he said, she could initiate an adoption proceeding, and it seems likely that once the formalities are complied with and the expenses are met, she will be awarded joint legal custody of the child with her husband. But isn't this strange? She is the child's genetic mother, her egg was fertilized and the resulting fetus carried to term by her good friend and volunteer for the sole purpose of making it possible for her to have a child with her husband, and there is no dispute that the child is her genetic offspring and that her friend is not asserting any parental claim whatever. Why should she have to go through a formal adoption proceeding (including home study and certification of fitness) to adopt her own child? This is a kind of legal formalism that seems more characteristic of the 19th century than the 21st.
The Feigenbaums argued that requiring Elaine to go through an adoption proceeding is a violation of her rights to due process and equal protection of the law. Justice Cohalan rejected that argument, finding that she was not similarly situated to her husband, who received a declaration of paternity with no need to adopt. Actually, when you think about it, she is very much similarly situated with Marc in this respect. Each of them donated their genetic material – sperm and egg – so that fertilization could take place in a petri dish, with the result of that process implanted in their friend Carly Macomber, who carred the fetus to term and delivered a child. In that respect, their roles were essentially the same, as both were "donors" with respect to the conception and birth of this child, and neither was directly involved in the gestation of the child. When the child was born, each of them was at that moment a genetic parent with no legal relationship to the child. Until the court issued its declaration of paternity, Marc was the genetic father but not the legal father. Similarly, Elaine is the genetic mother, and stands in the same position toward the child as Marc did with respect to legal parental status when the child was born.
Justice Cohalan's analysis seems focused solely on the equal protection issue — and gets it wrong, in my view – and fails to separately address the due process issue. Isn't it possible to argue that a person in Elaine's position has a fundamental right of reproductive freedom under the due process clause that is being abridged by the failure of New York to afford her a maternity proceeding parallel to the paternity proceeding afforded to her husband? Our law recognizes strong rights in birth parents, but has not always been consistent in recognizing equally strong rights in genetic parents. For example, in one famous case, the Supreme Court rejected a custody claim by a genetic father who committed adultery with a married woman and subsequently had an occasional parental-type relationship with their child, finding that the state could apply a conclusive presumption that the woman's husband was the legal father of the child and could reject any claim by the adulterous genetic father to a legal relationship with the child. So genetic parenthood does not always triumph under the 14th amendment when other public policy concerns come into play. But genetic parenthood does have its claims, especially when, in a case like the Feigenbaums', there seems no good policy reason to deny her the declaration she is seeking.
The legislature passed a paternity statute because when a child is born, the identity of the birth mother is obviously known, but the identity of the father is not obviously known. If the mother is unmarried, there is no legal presumption of who the father is, and a paternity proceeding is provided as a way to identify the father and declare his parental status and obligations to the child. If the mother is married, the law presumes that her husband is the father, and the law has been modernized to the extent of dealing with a situation where donated sperm is used to conceive a child for a couple where the husband is infertile by continuing to apply the paternal parental presumption. There is no parallel statutory mechanism for declaring maternity because prior to the technology for surrogacy through in vitro fertilization, there was no idea that somebody other than the birth mother could actually be the genetic mother of a child. The law in that pre-technological age could not conceive a need for a maternity statute, since the only mother recognized by the law, other than through a foster care or adoption placement, was physically present at the birth and thus instantly identifiable.
But because NY has outlawed surrogacy rather than deal with it as a fact – a process that will happen despite the law – the court feels powerless to act. In this circumstance, I agree with the Feigenbaums that it makes no sense for the court to require Elaine to go through an adoption to establish her legal relationship to the child conceived with her egg and surrendered to her custody upon birth by the gestational surrogate. Justice Cohalan expresses concern that in some cases the surrogate may wish to have a parental role, but that's not this case, and it is this case that is before the judge for decision. I think the judge should be able to use his equitable powers in light of this constellation of facts to declare that Marc and Elaine are the legal parents of the child, not just Marc, when the evidence shows that they are the genetic progenitors and the intended parents under the arrangement between the two couples. This does not involve enforcing the surrogacy arrangement in violation of public policy; rather, it involves making a determination of legal parentage in the best interest of the child, ensuring that the child has the legal protection of two parents who intended its birth and desire to raise it together, whose legal connection to each other is fully recognized by the state through their prior marriage, and whose genetic relationship to the child is undisputed by any concerned party.
The court's decision strikes me as unduly timid in its insistence that the court is powerless to grant the petition in the absence of legislation. Whatever happened to courts of equity? Whatever happened to the common law? In default of a statute, don't our state courts of superior jurisdiction retain the authority to decide the cases brought before them in the spirit of the law, which commands that all decisions involving the custody of children be made in their best interest and which generally recognizes important rights based on genetic relationships? Too often the NY courts have become hung up by our archaic statutory framework to make decisions that work against the best interest of children, such as the infamous case of Alison D. v. Virginia M. It's time for them to shed this timidity and start to make the policy decisions that our dysfunctional legislature seems incapable of wisely making.