FAMILIES
Dad’s Adoption Rights Upheld in Surrogacy Case
New York appellate panel rules in case involving voluntary arrangement
BY ARTHUR S. LEONARD
A unanimous four-judge panel of
the New York Appellate Division in
Brooklyn revived a gay dad’s petition
to adopt his son, reversing a “clearly
erroneous” decision by Queens County Family
Court Judge John M. Hunt.
Hunt stated two reasons for dismissing the
adoption petition: that the child was the result
of what he termed “a patently illegal surrogacy
contract” and that there was no authority
under New York law for a parent to adopt their
own biological child.
The June 26 Appellate Division opinion by
Justice Alan D. Scheinkman clearly explained
why both 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 call under the circumstances.
The Appellate Division decision is particularly
timely given the State Legislature’s recent
failure to pass a bill reforming surrogacy laws.
Those laws are a legacy of the old New Jersey
Supreme Court decision in the “Baby M Case”
— which received sensationalistic media coverage
— where 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. The New Jersey 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. The trial court there
ended up granting visitation rights to the surrogate
while awarding custody to the biological
father.
Out gay State Senator Brad Hoylman’s bill,
which died in the most recent legislative session,
would have permitted compensated surrogacy
subject to substantial regulation.
In the Brooklyn case, a single gay man, identifi
ed only as Joseph P. in the court’s opinion,
wanted to have children biologically related to
him. In 2012, he arranged to have embryos created
using his sperm and an anonymous donor’s
eggs. A woman voluntarily agreed to be the
gestational surrogate, signing an agreement to
waive parental rights as the birth mother and
consenting to Joseph’s adoption of the children.
In 2013, twins, a boy and a girl, were born. A
Family Court judge granted Joseph’s petition to
adopt them without any fuss or drama.
In 2017, Joseph decided to have more children
using the remaining frozen embryos. A
woman friend agreed, again on a volunteer
basis, to be the gestational surrogate, waived
NYCOURTS.GOV
Justice Alan D. Scheinkman wrote the opinion for a unanimous
four-judge Appellate Division panel that granted a gay father’s right
to adopt a child born with the uncompensated help of a gestational
surrogate.
any parental rights, and consented to Joseph’s
adoption of the child. In October of that year,
John was born, and he has been in Joseph’s
care ever since. As a matter of course, however,
only the surrogate’s name is on the child’s birth
certifi cate, since she is not married to Joseph,
who therefore enjoys no legal presumption that
he is the father.
Joseph ran into the roadblock of Judge Hunt,
who misconstrued the surrogacy and adoption
laws and dismissed his adoption petition, despite
a social worker’s favorable home study
that found him to be “a mature, stable, and caring
person who intentionally created a family of
himself, the twins, and John.” The social worker
also wrote, “John’s adjustment appeared to
be excellent, and it was clear that Joseph, his
twins, and John are a cohesive family unit.”
Justice Scheinkman provided a careful description
of the laws governing surrogacy in
New York. The Legislature provided that surrogacy
contracts are unenforceable and treated
as void. However, the only surrogacy contracts
actually outlawed are those where the surrogate
is compensated. It was clear to the Appellate
Division that the Legislature did not mean
to outlaw voluntary surrogacy arrangements,
merely to make them unenforceable in the
courts. Those who enter into a compensated
surrogacy agreement face a small monetary
fi ne and people who act as brokers to arrange
such agreements are liable for a larger penalty.
There is no penalty for voluntary, uncompensated
surrogacy arrangements.
Even under existing law, New York trial
courts have approved adoptions like Joseph’s
in situations involving both voluntary and compensated
surrogacy agreements. The Appellate
Division’s careful analysis of the law made clear
that the arrangement between Joseph and his
gestational surrogate was not, as Judge Hunt
stated, “patently illegal” — a conclusion Justice
Scheinkman found to be “clearly erroneous.”
Joseph’s petition, the appeals panel found, was
not an action to “enforce” the surrogacy agreement.
No such enforcement was needed since
the surrogate already waived parental rights
and consented to the adoption.
The Appellate Division also found no basis
for Hunt’s fi nding that a biological father may
not adopt his own child. Hunt had asserted
that the adoption “would confer rights upon
a parent which already existed.” Scheinkman
pointed out the error there. Since only the surrogate’s
name is on John’s birth certifi cate, she
was the only legal parent.
“Here,” Scheinkman wrote, “the appellant,
an otherwise qualifi ed ‘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.”
Nothing in the adoption statute precludes
Joseph’s adoption of John, and Scheinkman
cited several unusual cases where courts 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,” the court stated
that 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.”
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.”
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