NY Judge Rules That State Ban on Gestational Surrogacy is No Impediment for Second Parent Adoption

Ruling on a previously-undecided question under New York law, Queens County Family Court Judge Barbara Salinitro has decided that New York’s ban on surrogacy contracts does not present an impediment to her consideration of an adoption petition from the same-sex spouse of a man whose twins were conceived and born through a gestational surrogacy contract with a woman in India. The April 3 ruling in Matter of J.J., 2014 N.Y. Slip Op 24089, notes the failure of New York’s statutory law to keep up with social change.

The fathers in this case are J.H.-W. and M.H.-W, New York residents who are legally married to each other. M.H.-W. entered into a gestational surrogacy contract with Y.M.A.K. in India. M.H.-W. provided sperm, which were used to fertilize an anonymous donor’s egg in vitro, and M.H.-W. gestated the twins, to whom she is not biologically related. On May 12, 2013, upon birth of the twins, Y.M.A.K. immediately turned over the twins to M.H.-W., who came to India together with his husband, J.H.-W., for their birth. “On May 28, 2013, the Proposed Adoptive Children were granted United States Citizenship and were permitted to return to the United States with the Birth Parent and Proposed Adoptive Parent,” wrote Judge Salinitro. “The Proposed Adoptive Children have been living with the Birth Parent and the Proposed Adoptive Parent since placement. The home study provided to the Court reports that the Proposed Adoptive Children are thriving in their care. The Proposed Adoptive Parent seeks the Court’s approval for finalization of his adoption petition.”

New York law has developed in significant ways apart from the controversial statutory ban on surrogacy contracts, which the legislature adopted in the 1980s in response to the notorious Baby M Case. In that case, the New Jersey Supreme Court held unenforceable as a matter of a public policy a contract between a heterosexual married couple and a married woman under which she promised to bear them a child conceived with the husband’s sperm and to surrender the child for adoption upon its birth. The surrogate changed her mind and fled the jurisdiction with the baby, leading to a nationwide media sensation. While the court held that contract unenforceable on public policy grounds, despite the lack of any statutory ban at the time in New Jersey, it concluded that the father should have primary custody of the child and that the surrogate’s status as a parent should also be recognized. Looking at this situation next door, the New York legislature passed a statute making such contracts unenforceable and illegal.

Now Judge Salinitro faced the question whether twins conceived and borne through an unenforceable, illegal contract, could nonetheless be adopted by their biological father’s same-sex spouse. Although New York’s statutory ban has never been altered since it was first adopted, the law has changed in other ways, as the state’s highest court ruled in favor of second-parent adoptions in 1995 and the legislature enacted the Marriage Equality Act in 2011. So, although there is a public policy in New York against surrogacy contracts, there is also a public policy in favor of second-parent adoptions, and, in reality, J.H.-W. is the husband of these children’s father and thus, in effect, their step-father with whom they have been living since their birth. The adoption of children by a step-father with the approval of the biological father is a routine occurrence in family courts.

Judge Salinitro, after pointing out that individuals who make surrogacy contracts “become parties to what New York considers an ‘illegal contract,'” she observed, “Bearing that in mind, it is troublesome that when using a surrogate, a birth parent who provides his or her genetic material is a legal parent to the child, yet their partner may not be able to achieve legal parentage through adoption, even though both planned on raising that child together in a family setting. Worse yet, in cases where neither partner has furnished their genetic material for a baby carried by a surrogate, neither parent could be deemed the legal parent of a child through adoption. Although such scenarios are consistent with statutes dictating that no person may give or accept any type of compensation in exchange for placement of a child for the purpose of adoption, such results are inconsistent with the Legislature’s intent that ‘each adoption should be judged upon the best interests of the child based upon a totality of the circumstances.'”

Ultimately, Judge Salinitro found that the “best interest of the child,” the central doctrine of family law in the United States, should overcome any doubts created by the surrogacy statute. After reviewing a variety of cases on related issues and recent attempts to get surrogacy reform through the New York legislature, the judge concluded that the surrogacy statute should not bar this adoption. “In light of the foregoing,” she wrote, “the Court finds where a surrogacy contract exists and an adoption has been filed to establish legal parentage, such surrogacy contract does not foreclose an adoption from proceeding.” She pointed out that there was no conflict concerning the fathers’ “care and custody” of the twins in this case, who will reside with the two men as their fathers in any event. Furthermore, the court was not being asked to enforce the surrogacy contract, since the surrogate had willingly complied with it, and the adoption petition did not depend upon the legality of the surrogacy contract in any way.

“Rather,” she wrote, “the Proposed Adoptive Parent, although not a biological parent, wants desperately to have equivalent legal status as the Birth Parent, which is what the couple had always envisioned as they proceeded on their bumpy road towards starting a family together, and is prepared to assume the rights and responsibilities that accompany legal parentage. In keeping with the Legislature’s intent to encourage loving, happy families for children with parents who wish to accept that role, the best interests of the Proposed Adoptive Children under the totality of the circumstances. . . the Court finds that the surrogacy contract’s legality is of no consequence to the matter.”

This is not the end of the proceeding, but Judge Salinitro felt that she had to determine whether the contract was a bar to adoption in these circumstances before proceeding with the remaining formalities. She also cautiously noted that her decision “should in no way be read to condone any violation of any New York State law,” but the clear tone of her opinion sounds a call to the legislature to get moving on revising the surrogacy statute to accommodate the needs of couples who are unable to have children biologically related to at least one of them without the assistance of a surrogate.

The adoption petition was filed on behalf of J.H.-W. by Clifford Greenberg.

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