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What you need to know about surrogacy in NY and why you need to know it: Updated.

November 30, 2016 | By: | Filed under: Birth Certificates, Birth Orders, Egg Donation, Gestational Carrier Arrangements, New York Reproductive Law, Parentage Orders, Personal Musings, Pre-Birth Orders, Reproductive Law, Surrogacy, Surrogacy in New York, Third-Party Assisted Reproduction, Uncompensated Surrogacy

The other day  I had the privilege of visiting clients who had just come home from the hospital with their newborn.  It was a compassionate surrogacy and it was time for everyone to sign papers either terminating parental rights or seeking to establish them.  It was a unique situation – and one that brought tears to me eyes repeatedly while I was there (okay so I am a Crier and I am Proud of it).  In this case a grandmother had carried her grandchild for her daughter and son-in-law.  The emotion (and tears) behind this child’s birth is the subject of another blog.   The conversation we had while everyone was signing their papers and I was furiously stamping everything with my notary stamp is, however, the subject of this blog.  We were talking about how they got started on this monumental journey and a blog I wrote about Beyoncé and NY surrogacy.   In that blog, I gave an overview of some aspects of surrogacy laws as they pertain to New York State.  Having reviewed that blog, it occurs to me an update or clarification might be warranted.  If nothing else, I have changed how I practice and establish parental rights and my blogs should reflect that change, yes?  I have posted other blogs on surrogacy which discuss NY laws so this blog should be read in conjunction with the Beyoncé post from 2012 and my other blogs related to surrogacy.

Despite the estimable efforts of some of my colleagues to get NY to update our legislation, we still can’t do the paid surrogacy thing in NY.  In order to enter into a surrogacy arrangement in NY a friend or family member has to carry the baby for you out of her love and affection for you.  This is called “compassionate surrogacy” and it is indeed, a compassionate act for someone to carry another person’s child without financial remuneration.  If you don’t have someone who is willing to carry your baby out of their love and affection for you, you have to go to another state which permits compensated surrogacy.  You shouldn’t have too hard a time finding a surrogacy friendly state as NY is among only a couple of states which have “surrogacy unfriendly” laws.  And by the way, when I say “unfriendly” I would like to remind you that entering into a contract for surrogacy in NY, or facilitating a compensated surrogacy arrangement in NY, are not just acts which are against the public policy of the State of NY, they are potentially criminal acts.  Yes, let’s insert the word felony in there for some greater clarity.  Fun times.

But we have compassionate surrogacy and NY’ers can even have a traditional surrogate carry a baby out of her love and affection for the intended parents (traditional surrogates use their own eggs to achieve a pregnancy and a lot of states do not permit traditional surrogacy).  There are real options for achieving a family when you are medically or socially infertile and live in NY.  Provided you have someone willing to carry that baby without compensation (get the theme here?).

So let’s say you have someone willing to carry your baby for you.  Let’s now assume you have or can create embryos using your eggs and your husband’s sperm (I will discuss what happens when you can’t).  You hire an experienced reproductive lawyer to draft a document prior to the transfer of your embryo to the surrogate’s [compassionate] uterus which outlines your (the intended parents’) intent and the surrogate’s intent (and her husband if she has one), that she will carry your baby out of her love and affection for you, and that she has no intent to parent the child.  In this document outlining your intent, your reproductive lawyer also will address the laws of the State of New York and who will be deemed a parent, and at what point in time they will be deemed a parent, or you will be deemed to be the parent (dang that’s a lot of deems).   And that is as far as I go with my discussion of this document evidencing pre-conception intent, as the document itself will vary among the reproductive lawyers you may hire (and whose surrogacy practice is, by law, limited almost exclusively to compassionate surrogacy).

This Completes Step 1 = You now have a pre-conception document outlining the everyone’s intent for the compassionate surrogate to carry baby for the intended parents, and for the intended parents to be the parents.  Many reproductive lawyers in NY call this document a Memorandum of Understanding (or MOU for short).

Then your surrogate gets pregnant from the embryo created using your egg and your husband’s sperm (or from donor gametes).  What happens now?  Again this will vary based on individual attorneys but typically during the pregnancy, if your surrogate is married her husband can take steps to terminate any parental rights NY law will assume he has by virtue of the fact that he is married to your surrogate at the time your child is conceived and born.  In this case, typically the surrogate’s husband isn’t listed on the first birth certificate; it will be issued with just her name on it (attorneys do things different ways so do discuss this part of the process with your own attorney).  If your surrogate isn’t married, then bio dad’s name can be placed on the first birth certificate with the surrogate’s name.  This makes life a lot simpler for everyone, but this can only happen when your surrogate is not married.  However, it is only AFTER your baby is born that your surrogate can take steps to terminate her parental rights.  NY will deem your compassionate surrogate to be your child’s mother, notwithstanding the lack of any genetic connection to your child (well except for the grandmother who just delivered her grandchild and who, of course, is genetically related to the baby she carried).  Indeed, because she cannot terminate her parental rights until after your baby is born, under the current NY laws, your surrogate’s name will have to go on the first birth certificate issued for your baby by the State or City of New York.

After the baby is born you can go to court and seek an order declaring you and your husband (if your surrogate is married) to be the genetic and legal parents of your child.  This is often called a “post-birth order” of parentage.  Once you have that court order, NY or NYC will issue a new birth certificate with your names on it.  (Please see my discussion of Queen Bee regarding whether or not that first birth certificate gets sealed).  I have been having quite a bit of success recently getting post-birth orders quickly.  It used to be that I had to go into different courts – now I usually just go into one court and have a hearing to establish the intended parents’ parental rights and terminate the surrogate’s presumptive parental rights.  I have had hearings that lasted a total of 10 minutes.  Anti-climactic to say the least.

Now, to be fair, some of my colleagues go into court before the baby is born to start the process of establishing and terminating parental rights.  Everyone has their own way of doing things, but the bottom line is that whether I go into court before or after your baby is born, or both before and after your baby is born, your surrogate’s parental rights cannot be terminated and your parental rights cannot be established until after the baby is born.  That is until the NY legislature decides to move into the 21st Century with the rest of us.

If you have to use donor egg, donor sperm, or your surrogate uses her own egg, the non-biological parent cannot get a post-birth order in NY.  In this case, where someone else provided gametes (egg or sperm), a step-parent or second-parent adoption must be conducted to establish the non-bio parent’s parental rights.   The bottom line is that in NY, if you lack a genetic connection to your child, you will need to enter into some kind of an adoption process to be named mom or dad on that birth certificate.

This Completes Step 2 = establishing and terminating parental rights either through court proceedings which are completed after the baby is born and/or through adoption proceedings (depending on who has a genetic relationship to the baby).   

And at some point thereafter you will receive a new birth certificate with your names on it!

 

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The Top Ten Things Reproductive Lawyers Can Help You With – Part 2

February 23, 2016 | By: | Filed under: anonymous sperm donation, Birth Certificates, Birth Orders, Current Affairs, Egg Donation, Embryo Disposition, Embryos, Family Building Law, Frozen Embryos, fund management in third-party assisted reproduction, Gestational Carrier Arrangements, infertility in the media, known sperm donation, Parentage Orders, Pre-Birth Orders, Reproductive Law, Reproductive Lawyers, Same Sex Parenting and Reproductive Law, Surrogacy, surrogacy escrow management, Third-Party Assisted Reproduction

So in Part 1 we discussed some of the agreements you might need to enter into when building your family through third-party assisted reproduction and how my colleagues and I can help you with them.  Now let’s take a look at some of the more obscure but equally important issues that might come up.

back to our top ten list:

(6) Using cryopreserved embryos in the event of a divorce or after a death.  Do you know whether you can use frozen embryos after a divorce or separation?  Did you know that this is one of the hottest legal issues in third-party assisted reproduction law (Hello Sofia!).  What if you want to conceive a child using frozen embryos after your partner dies?  Will you be a legal parent?  Will your child be entitled to inherit from your partner’s estate, or your partner’s social security benefits?  These are some of the most complicated and cutting-edge issues in reproductive law and you don’t have to be Sofia Vergara to regret not having had a thorough discussion with an attorney before you make decisions (or have a pre-conception embryo disposition agreement prepared or even just check off a box on a clinic consent form) that has the power to change your life plans.  And heck, just look at Sherri Shepherd and her battle not to have child support obligations.  That case just turns my stomach.

(7) Managing money in a surrogacy arrangement:  You may be spending over $100,000 in connection with your surrogacy or receiving tens of thousands of dollars in compensation as a surrogate.  Do you know where the money is being held?  Do you know how and when it is being paid and what documentation, if any is being provided to support the payment?  What happens if your agency goes under and the escrow account was held by the agency?  Are independent escrow managers necessary and when should you retain one?  Do the state laws which govern your surrogacy arrangement provide special rules for how and where money must be held?  How do you know if your money is safe?

(8)  Doing a home insemination:  It may be a more affordable way to conceive your child (and more intimate as compared to the stirrups in your doc’s office), but will you have a legally recognized family if you do a home insemination?  Did you know that in some states a doctor must perform the insemination in order to terminate the sperm donor’s parental rights and ensure that the intended parents are deemed legal parents?

(9) Getting your birth certificate:  How and when can you get a birth certificate with the intended parents'(s) name(s) on them?  Can you get them before the baby is born or only after birth?  Do you need to do a second or step-parent adoption?  Is the law in the State in which your baby will be born uniform throughout the State or does it vary County by County or even Judge by Judge?  Do you know what you need to do, where you need to do it and when you need to do it in order to obtain a birth certificate for your child with your name on it?  One of my colleagues has a fairly famous quote from an interview he gave about the fact that the ease with which he can or cannot obtain parentage orders sometimes comes down to the button he pushes in the elevator in the courthouse.  Are you walking into a courthouse like that?  Do you have any alternative?

(10) Understanding the impact of changing laws:  Third-party assisted reproduction is a new and emerging area of the law.  Some states have statutes governing egg and sperm donation, and surrogacy, others have only case law (or judge made) law.  Some states have statutes or laws which are unfavorable and others have laws which are favorable to different types of third-party assisted reproduction.  Some states have outdated laws that may change in the near future.  Other states have laws which may be unconstitutional given recent decisions from the United States Supreme Court, but the state may not yet be complying with or adhering to new and evolving constitutional principles.  When and how will these evolving laws impact your family building and the recognition of your family, as a family?  And as long as we are discussing the status of various state laws, doctors (as much as we love and need them in this process) don’t always fully understand the laws, especially the nuances with which my colleagues and I have become familiar.  Just as I would never try and tell my clients what their latest blood test results mean,  and my clients should not listen to me with great seriousness when I put on my honorary lab coat, they shouldn’t listen to their doctor’s advice about what they can and cannot do to build their family.  Sure, get her opinions on what options you have, but check with someone who actually practices reproductive law before you cross a type of third-party assisted reproduction off your list because your doctor tells you that option isn’t available it to you.  

My colleagues and I can help you answer most, if not all of these questions.  We can help you make smart (or smarter) choices as you begin the often complicated process of building your family using donor gametes like egg, sperm, or embryos, or with the help of a gestational surrogate.  We can protect you in almost all of the scenarios and situations discussed in this top ten list.  Reproductive lawyers are here to help you become a parent and help make sure that your legal parent-child relationship and family are recognized by the government and other people who might try to challenge your status as a mom or dad.  It’s that simple.  And it’s that important. 

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The Top Ten Things Reproductive Lawyers Can Help You With

February 10, 2016 | By: | Filed under: anonymous sperm donation, Birth Certificates, Birth Orders, Current Affairs, Egg Donation, Embryo Disposition, Embryos, Family Building Law, Frozen Embryos, Gestational Carrier, Gestational Carrier Arrangements, In the News, infertility in the media, Infertility on Television, Insurance for Infertility, IVF, known sperm donation, New York Reproductive Law, Parentage Orders, Personal Musings, Pre-Birth Orders, Reproductive Law, Reproductive Lawyers, Same Sex Parenting and Reproductive Law, Surrogacy, Surrogacy in New York, The Journey to Parenthood, Thinking Out Loud, Third-Party Assisted Reproduction, Uncategorized, Uncompensated Surrogacy

Sometimes when I tell people what I do for a living they look at me like I have two heads.

Reproductive Lawyer?  What’s that???

Part One

In this day and age when celebs like Sofia Vergara and her Ex are all over the news fighting over which one of them is going to get to use their frozen embryos, I am really surprised that so many people have no idea what it is that reproductive lawyers do.  Or more to the point, why reproductive lawyers are not only helpful, but often play a critical and essential role for individuals and couples building their family through third-party assisted reproductive arrangements like surrogacy, egg, sperm, and embryo donation.

So what is it that we do for our clients?  How is it that we play such an important but poorly understood role in the formation of our modern families?  Here, in no particular order, is an overview of the top ten things reproductive lawyers can help you with as you begin to build your family through third-party assisted reproduction.  Now these may not be humor-worthy of top ten list legend David Letterman, but for anyone going through third-party assisted reproduction or considering it, this is an important list:

(1)  Reviewing your agreement with your surrogacy or egg donation agency (sometimes called a service agreement):  If things go south with your relationship with the agency this is the document that is going to be your agency’s safety net and the document you will look to in order to seek a refund of all or some of the money you paid.  Shouldn’t you know your rights and the agency’s obligations and responsibilities before you sign an agreement and work with the agency?

(2) Reviewing your surrogates insurance policy:  What if it doesn’t cover a surrogacy pregnancy?  What options do you have to avoid a potentially catastrophic financial liability?

(3) Preparing contracts for you:  Egg, sperm, and embryo donation agreements (anonymous or known), and gestational surrogacy agreements are all critical documents in protecting your family in the future and protecting you and your donor/surrogate during the IVF process and/or pregnancy.  Understanding the role this agreement plays in third-party assisted reproduction and the necessity for having them drafted is far too often overlooked.  How do you make sure your sperm donor is really a donor and not something more (like a parent)?  When does your egg donor relinquish parental rights?  What happens if she changes her mind about donating? How and when can you use any leftover frozen eggs or preembryos?  What happens if you and your surrogate disagree over something really important like selectively reducing the pregnancy?

(4) Using boilerplate contracts with your agency, or contracts you find on the internet:  Do they really protect you and what issues might arise if you use one?  Did you know that you are probably violating copyright laws by using one?  Did you know you cannot be forced or compelled to use an agreement provided by an agency and that you have the right to use an independent lawyer?

(5)  Entering into a known sperm donation agreement (with a friend or a Starbucks Sperm Donor):  What do you need to know about these sometimes very dicey situations?  What makes them so risky and how can you avoid those risks?  What can you do to protect yourself whether you are the intended parent or the sperm donor?  How can you protect yourself from a known sperm donor asserting parental rights or an intended parent trying to impose parental rights, custody or child support obligations?  Does a sperm donor need to be worried about the State asserting a claim that he has child support obligations?  Good intentions aside, everyone thinking about this form of family building is (in my humble opinion — IMHO) a fool for not consulting with an attorney before entering into this type of family building arrangement.

 

These are just a few of the important ways reproductive lawyers can help you through the obstacle course of third-party assisted reproduction.  We want to help you make smart future-thinking decisions and ensure that everyone has their rights protected as they intend them to be and as they move forward through this process.

Up Next in Part 2 We Explore:

(6)  Planning for Divorce or Death.

(7)  Managing money in a surrogacy arrangement.

(8)  Doing a home insemination:

(9) Getting your birth certificate:

(10) Understanding the impact of changing reproductive laws:

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Reproductive Lawyers and ART for Gay Parents to Be

March 31, 2014 | By: | Filed under: Birth Certificates, Birth Orders, Gestational Carrier, Gestational Carrier Arrangements, Parentage Orders, Pre-Birth Orders, Questions about the Office, Sam Sex Parenting and Reproductive Law, Surrogacy, The Journey to Parenthood, Third-Party Assisted Reproduction

Sometimes I feel like people don’t get what I do for a living.  At parties when someone asks me what I do and I tell them I am reproductive lawyer, I get a blank stare and an “uh huh” response.  I then explain that I am a lawyer that helps people have babies.  I may get a smile but I usually can tell that my fellow partygoer remains confused.  He or she will often ask me a question about adoption, assuming that I am an adoption attorney.  I next explain that while adoption law is part of my job, with my specific area of practice most of the time the adoption is just for one parent in a same-sex relationship who is seeking to establish parental rights after a surrogate birth.  If I am really lucky I get to talk about third-party assisted reproduction and all the ways people can have babies these days–and all the risk that comes with this technology.  And I am not talking about medical risks, or the risk of not getting pregnant, as third-party assisted reproductive technology (“Third Party ART”) is unbelievably successful.  I am talking about the risks presented by the laws that may apply to these family building arrangements.  Most people have no idea how complicated these laws are and how important my job can be to help ensure that all the work doctors are doing to help people become a family, results in a legally-recognized “forever” family.

And it is not just my fellow partygoer who fails to understand the importance of what I do with respect to Third-Party ART.  Many doctors have no idea the complexity of the legal landscape their patients may be facing.  So when Gay Parents to Be in partnership with RMA CT recently contacted me and told me about an upcoming event it was having with the Triangle Community Center in Connecticut, and that they needed a reproductive lawyer to help round out the panel, I jumped at the opportunity.  How could I not participate when asked if I could help explain why a reproductive lawyer needs to be a part of a patients’ ART team, and why what I do really matters?  Would I help?  No brainer, just tell me where to go and when to be there.

 Answer:

Saturday, April 5th 12pm – 2pm

Triangle Community Center

618 West Avenue, Norwalk CT

 

I often think that although we are all blessed when we become parents, those of us who faced challenges in becoming parents are more appreciative of our children and our family.  There are simple and seemingly insignificant things that couples that conceive without jumping through hoops take for granted, like the birth certificate with their name on it.  For those people who may have to spend tens of thousands of dollars and most certainly need a team of doctors and nurses and other reproductive angels to have a baby, that birth certificate is the symbol or proof of their victorious transition to parenthood. The birth certificate is often the one document that says “forever” family more than any other.[i]

While Third-Party ART, like surrogacy, is helping more and more people achieve their dream of having a family, it also raises more and more legal issues about how we protect that family.  My job often boils down to making sure that birth certificate is an “untouchable” document and to do that I need to be involved in the process just as early – sometimes even earlier – than the medical team.  Preparing the legal landscape ahead of time is just as important as preparing a surrogate’s uterine lining.  Just as a reproductive endocrinologist is going to monitor hormone levels and the thickness of a surrogate’s uterine lining in preparation for embryo transfer, one of my roles as a reproductive lawyer is to make sure everything that the medical ART team is doing to create this family, will be legally protected.

Most people entering into surrogacy arrangements understand that they need a contract with their surrogate.  What they often fail to understand is that the contract isn’t just about addressing the relationship with the surrogate or the financial commitments being made to her.  That surrogacy agreement is going to lay the foundation for obtaining a birth certificate and sometimes having the wrong wording, or not having specific wording in a surrogacy agreement can prevent the birth certificate from ever being issued, or being issued with the right people’s names on it.  Although many states have statutes or cases that specifically provide mechanisms for obtaining this birth certificate, in far too many states the complexities regarding the establishment of parentage is far more complicated and/or downright tricky.  Although a state may be “surrogacy friendly” the laws in that state may vary county-by-county and even judge-by-judge.  Even more, as the country becomes friendlier to marriage equality, and state laws are becoming more progressive, the definition of what a family is may now include three parents, or “intimate partners” who share parenting responsibilities.  It is this ever-changing legal landscape applicable to Third-Party ART that makes addressing the legal side of these family building plans essential.

As one of my colleagues has [not so] facetiously said, sometimes whether or not you can get a birth certificate comes down to which elevator button you are pushing in the courthouse.  I am really thrilled that I am going to have this opportunity to explain what I do, and hopefully ensure that more people who are considering entering into Third-Party ART arrangements understand how reproductive lawyers can help them, when we can and should be helping them, and helping ensure that when it is time for them to get their birth certificate it (hopefully) doesn’t come down to which button they are pushing in the courthouse elevator.  And if it does come down to elevator buttons, that there is confidence that the attorney who has been hired to press the elevator button can successfully navigate the legal landscape necessary to obtain that birth certificate.

 

 

 

 


[i] This blog does not address issues regarding the enforceability of birth certificates for same-sex couples.

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When Judge’s Get it Wrong When Endeavoring to Get it Right. Second-parent adoption blog part 2

February 3, 2014 | By: | Filed under: adoption, Birth Certificates, Check This Out, In the News, infertility in the media, Parentage Orders, Personal Musings, Same Sex Parenting and Reproductive Law, Thinking Out Loud, Third-Party Assisted Reproduction

I promised a more human blog on this new case from Brooklyn.  Here goes:

 

By now most people are aware of the groundbreaking, landmark decision in the case of United States v. Windsor, a case which determined that same-sex marriages must be recognized under federal law, thereby overturning part of the Defense of Marriage Act (DOMA), and leading to the passage of many state laws embracing same sex marriage or otherwise altering state’s views on same-sex marriage.  One important fact about Windsor that many people have overlooked is that Windsor did not apply to section 2 of DOMA, which permits states to ignore or fail to recognize same-sex marriages performed in other states.  Thus while the Federal Government must now recognize the marriage of two men or two women in the State of New York, Windsor did nothing to change the rights of other states to ignore same-sex marriages entered into in New York.  Insofar as a state could ignore or choose not to recognize such a marriage, that state also could choose not to recognize the legitimacy of children born during the course of that marriage.

Because Section 2 of DOMA remains good law, attorneys typically recommend to their clients who are same-sex families that the non-genetic or non-gestational parent should enter into a second-parent adoption in order to ensure that his/her parental rights are recognized in hostile states (states that don’t like same-sex marriages).  The hypothetical I typically provide to my clients upon discussing whether and to what extent they might deem it appropriate to take the additional step of entering into a second-parent adoption to secure their parental rights in other states, is one involving a medical crisis.  And because I used to be a drama major (and perhaps still am in many respects), I have created a lovely little soap-opera-like legal hypothetical to help make my point:  Let’s say that Jane and Jan, who are married under the laws of the State of New York, have a child, Jack, who is genetically related to Jane.  Jane also is Jack’s birth or gestational mother, but Jan has no genetic or gestational connection to Jack.  Jan is Jack’s mother because –like all couples who have a child together — she intended to conceive him with Jane, and was married to Jane when Jack was born.  Because NY law is so favorable to same-sex couples, both Jane and Jan are listed on baby Jack’s birth certificate.  New York basically says that it doesn’t matter what your sexual orientation is, if you are married at the time a child is born, both married partners have equal rights to the child born during the marriage, and both parents names shall be placed on that child’s birth certificate.  This is wonderful law and I am proud to be a New Yorker because of its stance with respect to marriage equality.  However, just because NY lets Jane and Jan put Jan’s, the non-genetic parent’s, name on baby Jack’s birth certificate, doesn’t necessarily protect Jan in a state which doesn’t respect marriage equality.  In my horrific hypothetical soap opera-like drama, I ask Jane and Jan to consider what happens to them if they get into a car accident in a state that is unfriendly to same-sex marriage.

Imagine that Jane is on life support and unable to communicate, and little Jack is critically injured and needs surgery (hey I said I am the queen of drama).  The hospital however, refuses to recognize Jan as Jack’s parent, refuses to recognize Jane’s and Jan’s marriage, and Jan is in a time-sensitive situation in which she needs to make a medical decision to save her son’s life but is being precluded from so doing because the state  in which this accident took place doesn’t recognize any aspect of Jan’s relationship to Jack or Jane.   This sadly isn’t me being melodramatic, this is a reality that Jane and Jan could be facing. But let’s let this little soap opera sit for a moment and get back to my discussion of DOMA, Windsor, and this recent case decided in Surrogate’s Court located in King’s County (Brooklyn), New York, which case on the one hand reinforces the beauty of the laws of the State of New York but simultaneously sets legal precedent protecting same-sex marriages on its head.  Many attorneys are deeply concerned about the ramifications of this case should it not be overturned on appeal or otherwise reversed.

As noted, notwithstanding Windsor, Section 2 of DOMA is still valid law, and permits states to refuse to recognize same-sex parental rights even where a parent’s name is listed on a child’s birth certificate.  Thus, up until this new case from the Brooklyn Surrogate’s Court, in light of Section 2 of DOMA and the variety of state laws as they apply to same-sex marriages, most attorneys (including yours truly) would have advised Jan to enter into a second-parent adoption and obtain a court order or other judgment establishing her to be Jack’s legal parent.  Under the Full Faith and Credit provision of the United State’s Constitution, that “Order of Adoption” must be recognized everywhere and Jan could use that Order to ensure she has the ability to make that medical decision for little Jack in our soap opera.  The second-parent adoption proceeding and the recognition afforded to that Order of Adoption gives Jan and our little soap opera a happy ending (assuming everyone recovers from the horrific hypothetical car accident).

However, this recent decision from the court in Brooklyn, In the Matter of Seb C-M (NYLJ 1202640083455, Surr. Ct. King’s County Jan. 6, 2014), recently held that a woman in Jan’s position is precluded from entering into that second-parent adoption because her name already is on Jack’s birth certificate and she was married to Jack’s birth/biological mother at the time he was born.  Under New York law, says this Judge, Jan is Jack’s mom and there is no need for Jan to take any steps to ensure that her rights as Jack’s mother are recognized in other jurisdictions, even those that don’t recognize same-sex marriage.  This opinion thus denies Jan, and women and men in Jan’s position, the ability to obtain the one document that most legal practitioners feel would protect Jan’s ability to exercise parental rights in our nightmare soap opera hypothetical.  You guessed it, an Order of Adoption stemming from a second-parent adoption.

Why did the Judge decide this?  Well in part because she’s right.  Under New York law, Jan is Jack’s parent and no further steps are needed in New York for her rights as a parent to be recognized.  Marriage decrees and birth certificates are enough under the eyes and laws of the State of New York that nothing more need be done to enforce the rights of this family.  They are a family.  Period.  Nothing more need be said.  Valid marriage + valid birth certificate = family regardless of your sexual orientation.   That is, in and of itself, a wonderful statement and recognition of how far New York has come in recognizing marriage equality and the rights of same-sex parents.  However, as well-intended as this Judge was, and while her legal argument is correct with respect to the laws of the State of New York, the decision totally ignores the impact of Section 2 of DOMA, and ignores well-settled case law regarding the Full Faith and Credit provision mentioned above.  In holding that Jan cannot enter in a second-parent adoption because she already is legally a mother, the decision potentially eviscerates Jan’s parental rights and those of other same-sex parents when they are outside the borders of New York.  While I applaud this Judge for upholding the laws of the State of New York, it is somewhat arrogant to assume the laws of New York are so superior to the laws of other states that, in the face of a well-recognized danger presented by disparity in laws as they apply to marriage equality throughout the United States, and the enforceability of a federal statute that expressly permits states to reject Jane and Jan as a married couple, New York law will always protect this couple and their child.  The laws of the State of New York do not protect this family everywhere they may travel.

For the Judge in Seb C-M, a compelling fact in denying the second-parent adoption was that Jan already was on Jack’s birth certificate (keeping it simple by keeping the characters in our melodrama consistent, the people in the case of course have different names).  The Judge seemed to feel the birth certificate and presumptions surrounding birth certificates are sufficiently strong to carry Jan safely into other jurisdictions.  This is a legal argument called “portability”.  Indeed, there is a relatively significant body of law that addresses the “portability” of birth certificates with respect to same-sex marriages.

In re Sebastian, 25 Misc.3d 567, 572 (Surr. Ct. N.Y. County 2009), is another case that explores the rights of same-sex parents who are married, have a child, and wish to protect the non-genetic or non-gestational parent’s rights in jurisdictions which do not recognize same-sex marriage.  Indeed, Sebastian sets forth a detailed analysis of the “portability” of birth certificates and of Jane’s and Jan’s rights as parents.  The Court in Sebastian ultimately concluded that in order to protect someone like Jan, she would need to enter into a second-parent adoption as that is the only type of legal/court document that would have to be recognized in states which don’t recognize same-sex marriage.  Sebastian provided the necessary protection to same-sex couples which the court in Seb C-M has just taken away.

“[A]s the child of a married couple, Sebastian already has a recognized and protected child/parent relationship with both [Jane and Jan], arguably making adoption unnecessary and impermissibly duplicative. . . Unfortunately, while this is the case in New York, the same recognition and protection of [Jan]’s parental rights does not currently exist in the rest of this country, or in most other nations in the world. For this reason, the parties argue that only an order of adoption would ensure the portability of Sebastian’s parentage, and further ensure that the federal government and other states would recognize [Jan] as Sebastian’s legal parent.  Sebastian at page 573.

The Court in Seb C-M, however, felt that the presumptions afforded birth certificates are some of the “strongest and most persuasive [presumptions] known to the law.”  Seb C-M at page 2. However, just because New York recognizes this presumption in favor of same sex marriages, does not mandate that presumption also be recognized in other jurisdictions.  Indeed, Sebastian is clear that the laws of other states do not need to recognize that presumption:  In a detailed analysis, the Court in Sebastian noted that “[a] birth certificate is . . . only prima facie evidence of parentage . . . and does not, in and of itself, confer parental rights that must be recognized elsewhere. Accordingly, although the parties here may obtain a . . . birth certificate by virtue of their marriage, that birth certificate alone, without some judicial determination of [Jan]’s parentage would provide insufficient protection of [Jan]’s parental rights.”  Sebastian at page 576 (emphasis added).  The Court in Sebastian further explained that, under Section 2 of DOMA, a marriage contracted in New York does not need to be recognized in another state, and the legal rights flowing from that marriage, and the presumptions of parenthood from birth certificates may be ignored as well.

If this is our world, how then do same-sex couples protect their parental rights outside of New York?  The Court in Sebastian was clear that “A holding by this court that [Jan] is already a legal parent . . .  in this state may therefore offer insufficient protection in other states . . . just as DOMA itself precludes [recognition] based on marital status to same sex couples. Thus . . .  adoption is the sole means by which their parent/child relationship and the ‘rights and obligations incident thereto’ can be fully protected.”  Sebastian at pages 575-76 (emphasis added).  

“[t]he parties’ argument for an adoption here is based on their desire to have a determination of parentage that will be recognized everywhere, as opposed to one that other jurisdictions may be free to disregard. Although there is no Supreme Court decision on point, federal courts that have considered the issue have held that a judicial order of adoption in one state must be afforded full faith and credit in every other state, and that there can be no “public policy” exception to that mandatory recognition . . . .”

Sebastian at page 584.

The Court in Sebastian concluded that although Sebastian’s genetic mother had other potential legal avenues to establish her parental rights — avenues which are now firmly established in New York and form the foundation of the decision in Seb C-M, only an Order of Adoption would provide protection to a same-sex family outside of New York due to its entitlement to full faith and credit.  Sebastian at page 587.

“And, although it is also true that an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in [New York], the best interests of this child require a judgment that will ensure recognition of both [Jane] and [Jan] as his legal parents throughout the entire United States.”

Sebastian at page 587.

So we are now left with the decision in Seb C-M which has denied a parent the right to establish her relationship with her child in a manner that will be protected outside the borders of New York.  This decision is at odds with the well-reasoned opinion set forth in Sebastian, which decision remains consistent with the principles and issues still presented by Section 2 of DOMA.  The Judge in Seb C-M was not unsympathetic to the plight of our friend Jan, and recognized that she left Jan at risk of facing a situation where her parental rights might not be recognized.  The Judge felt, however, that those rights should be addressed in the jurisdiction that denies the rights (see footnote 2 of the opinion).   Rather than  upholding the protective approach as set forth in SebastianIn the Matter of Seb C-M, leaves Jan to fight with a judge over Jan’s constitutional rights and marriage equality in a jurisdiction which is inherently hostile to her and her family; and she has left Jan to do this in a potentially time-sensitive situation as that set forth in our soap opera drama of a hypothetical.

While New York has come a long way in recognition of same-sex relationships and In the Matter of Seb C-M is a recognition of those advancements, the decision leaves same-sex couples at risk in other jurisdictions.  New York’s laws are (unfortunately) not superior to those of other states, certainly not when there is a statute like DOMA which allows another state to deny the rights New York provides to the LGBT community.  While I applaud this decision in its recognition of New York’s stance on same-sex marriage and recognition of same-sex families, it presents a potentially disastrous outcome by denying protections currently recognized under New York law, which protections are recognized and enforceable in other jurisdictions.

The Judge In the Matter of Seb C-M strives to make the rights of same-sex couples more enforceable, however, the ultimate outcome of the decision is to deny protections to same-sex families which are enforceable in places other than the State of New York.  Is it not better to have a family that can be protected and recognized throughout the United States as provided by In re Sebastian, rather than one which can only be recognized within the State of New York as provided in In the Matter of Seb C-M?  And more importantly, if Sebastian is authoritative case law, insofar as In the Matter of Seb C-M, contradicts Sebastian on so many points, is the decision In the Matter of Seb C-M not wrong as a matter of law?



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