N.Y. Appellate Division Revives Gay Dad’s Petition to Adopt His Son Conceived Through Gestational Surrogacy

A unanimous four-judge panel of the Brooklyn-based New York Appellate Division (2nd Department) revived a gay dad’s petition to adopt his son, reversing a “clearly erroneous” decision by Queens County Family Court John M. Hunt.  Hunt stated two reasons for dismissing the adoption petition: first, that the child was the result of a gestational surrogacy contract, and Hunt said permitting the adoption would validate “a patently illegal surrogacy contract,” and, second, that there was no authority under New York law for a parent to adopt his or her own biological child.  The June 26 Appellate Division opinion by Justice Alan D. Scheinkman clearly explained why both of those reasons are wrong, and the panel pointedly directed that the case be sent to a different Family Court judge to determine whether it was in the best interest of the child to grant the adoption, an easy decision in the circumstances.

The Appellate Division decision is particularly important and timely in light of the state legislature’s failure to pass a bill reforming the state’s laws on surrogacy, which are a legacy of reactions to an old New Jersey Supreme Court decision, the “Baby M Case,” which received sensational media coverage in reaction to an emotionally charged situation in which a surrogate mother refused to give up custody of a child to its intended parents, spiriting the child out of the state to avoid giving it up.  In that case, the N.J. Supreme Court ruled that the surrogacy contract was unenforceable, but that the biological father, who with his wife had contracted with the surrogate to carry the child, could seek custody.  Ultimately, the trial court granted visitation rights to the surrogate while awarding custody to the biological father in that case.

In Matter of John (Joseph P.), 2019 N.Y. App. LEXIS 5110, 2019 WL 2607522, 2019 NY Slip Op 05132, the New York case, a single gay man, called Joseph P. in the court’s opinion, wanted to have children who would be biologically related to him.  In 2012, he arranged under medical supervision to have embryos created using his sperm and eggs from an anonymous donor.  Then he found a woman who was willing to be a gestational surrogate on a volunteer basis, signing an agreement to waive parental rights as a birth mother and consent to the children’s adoption by Joseph P.  Some of the embryos were successfully implanted and twins, a boy and a girl, were born in 2013.  (This arrangement is sometimes referred to as “compassionate surrogacy.”) A Family Court judge granted Joseph P.’s petition to adopt the twins without any fuss or drama.  The embryos that were not used were frozen for possible future use.

In 2017, Joseph P. decided he would like to have more children using the remaining frozen embryos.  A woman friend agreed, again on a volunteer basis, to be the gestational surrogate, making an agreement that Joseph P. would adopt any resulting children, and a fertility clinic implanted two embryos.  This time only one was successful, and John was born in October 2017.  Joseph P. brought John home from the hospital and John has been in his care ever since, living together with Joseph P.’s other children as a family unit.  As part of the surrogacy agreement, the surrogate waived any parental rights and consented to the child’s adoption by Joseph P., but as a matter of course, only her name is listed as the mother on the child’s birth certificate.

Then Joseph P. ran into the roadblock of Judge Hunt, who misconstrued the surrogacy and adoption laws and dismissed Joseph P.’s adoption petition, despite a social worker’s favorable home study that found Joseph P. to be, as described in Justice Scheinkman’s opinion, “a mature, stable, and caring person who intentionally created a family of himself, the twins and John.”  The social worker concluded that “John’s adjustment appeared to be excellent, and it was clear that [Joseph P.], his twins, and John are a cohesive family unit.” The social worker’s report was supplemented with medical documentation and letters of reference.

Judge Hunt dismissed the petition based on his misinterpretation of both the surrogacy law and the adoption law.

Justice Scheinkman provided a careful description of the statutory framework governing surrogacy in New York.  The legislature provided that surrogacy contracts may not be enforced by the courts as a matter of public policy, and are treated as void.  But, the only surrogacy contracts that are actually outlawed are those in which the surrogate is to be compensated, in effect selling their gestational services.  It was clear to the Appellate Division that the legislature did not mean to outlaw voluntary surrogacy arrangements, merely to make them judicially unenforceable.

The distinguishing element of a criminal statute is the imposition of a penalty for its violation.  New York’s law on surrogacy imposes no penalty for entering into a voluntary surrogacy agreement.  It does impose a small monetary penalty for entering into a compensated surrogacy agreement, and a large penalty for people who act as “brokers” to arrange compensated surrogacy agreements.

New York trial courts, while abstaining from enforcing voluntary surrogacy agreements, have approved adoptions in the past where surrogates, whether voluntary or compensated, had waived their parental rights as birth mothers and had given formal consent to adoption of the children by biological fathers.

The bills under consideration in the legislature during the session just ended would have modified the laws to permit compensated surrogacy agreements subject to substantial regulation, but the details and the general concept proved too controversial to gain approval.  However, the Appellate Division’s careful analysis of the existing statutes made clear that the arrangement entered into by Joseph P. and his gestational surrogate was not, as Judge Hunt had stated, “patently illegal,” a result that Justice Scheinkman found to be “clearly erroneous.”  Furthermore, Joseph P.’s petition was not an action to “enforce” the surrogacy agreement.  No such judicial “enforcement” was necessary, because the surrogate had executed the necessary documents to waive parental rights and consent to the adoption.

Turning to Hunt’s second ground for dismissing the petition, the Appellate Division found no basis in the adoption statute for the proposition that a biological father may not adopt his own child.  Judge Hunt had asserted that such an adoption would not serve the purposes of the adoption statute because the adoption “would confer rights upon a parent which already existed.”  Justice Scheinkman pointed out the error of this view.

When John was born, the only name placed on his birth certificate was that of the birth mother, the gestational surrogate.  At that point, she was the only legal parent.  That Joseph P. was the biological parent did not automatically make him the legal parent, because Joseph P. had no legal relationship with the surrogate, as the contract they made was not legally enforceable.  Joseph P. could bring an “action of filiation” to prove he was the biological father, but that would not establish a full legal parent-child relationship with all the rights and responsibilities flowing from it.  In fact, actions of filiation are more usually brought by single birth mothers to prove the identity of the biological father in order to impose support obligations on him, not to bestow him with custody of the child!

“Here,” wrote Justice Scheinkman, “the appellant, an otherwise qualified ‘adult unmarried person,’ seeks to adopt a child in order to gain legal and social recognition for the parent/child relationship already existing between himself and the child.  The Family Court disallowed it on the ground that there is no authority for a parent to adopt his or her biological child.  We disagree.  The blanket prohibition, invoked by the Family Court, against legal adoption of a child by a biological parent, is not supported by either the language of the statute or its purpose.”

The text of the adoption statute does not mention biological relationships between parents and children.  It merely specifies who can adopt a child, listing, among others, an “adult unmarried person.”  It is up to the court to determine whether granting the adoption would be in the best interest of the child.  “While adoption is a statutory creation,” wrote Scheinkman, “the adoption sought here is authorized by the governing statute and there is nothing in the statute which precludes it.  Further, to the extent that the Legislature has contemplated this subject, it has permitted adoptions notwithstanding an existing biological connection.”  The court then cited several cases involving unusual situations where courts had approved adoptions of children by their biological fathers.  While conceding that “the issue we consider here is relatively novel and there is little by way of precedent,” said the court, what cases there were supported allowing the adoption.

“The appellant, at present, has no legal relationship with the child,” observed the court, and the gestational mother did not seek to have a legal parental relationship with John.  “Thus, an adoption of this child by the appellant would create a legal parent-child relationship where none previously existed, while severing a legal relationship with the gestational mother that exists solely as a legal abstraction with no physical or emotional manifestation.  While the appellant could obtain an order of filiation,” continued the court, “such would leave the surrogate as the legal mother, which was not their intent in creating the child.  Further, the continuance of a bare legal tie between the child and the surrogate would not require her to actually assume a maternal role toward the child.  The surrogate would be left as a vestigial parent only.  While her rights could be terminated for abandonment or neglect, absent an adoption, only governmental authorities could initiate termination proceedings, leaving both the appellant and the child at the mercy of governmental discretion.”

The court characterized an order of filiation as a “shallow remedy” in this situation, since it would impose on Joseph P. only some of the obligations of parenthood.  For example, it would not provide Joseph P. “with judicial authorization to make decisions on behalf of the child” that a parent would ordinarily make, such as medical treatment decisions.  Joseph P. would then be left to initiate a new custody proceeding, “thus requiring him to initiate successive and time-consuming proceedings in which the ostensible adverse party would be the gestational surrogate who had already renounced her own tie to the child.”

The court concluded that allowing a biological parent to adopt a child born through gestational surrogacy “complies with the purpose of the adoption statute and should be permitted where, as in all adoption cases generally, the proposed adoption is in the best interests of the child.”  Because this appeal was resolved based on construction of the statutes, the court refrained from addressing Joseph P.’s alternative argument claiming that Judge Hunt’s ruling denied him equal protection of the law in violation of the Constitution, or that the ruling discriminated against him because of his single marital status.

Joseph P. formally represented himself on the appeal.  As noted above, the court sent the case back to Queens County Family Court “to be conducted forthwith before a different Judge.”

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