Thursday, October 28, 2010

New York court upholds California parentage judgment in surrogacy case

Surrogacy is illegal in New York (DC also!). That doesn't stop a New Yorker from going someplace where surrogacy is legal to have child. A gay male couple, DP and TR, did just that. They went to California, where a gestational mother became pregnant using a donor egg and semen from DP. Pursuant to a standard California practice, they went to court there, along with the surrogate and her husband, and obtained a pre-birth order naming DP and TR the parents of the twins about to be born. The children were born in August, 2001, and the names of both men appear as the parents on the birth certificates. The twins were born prematurely and hospitalized for over four months. During that time DP and TR relocated to California to be near them until they could be released to travel to New York.

At some point, the couple broke up, and DP filed for child support in New York Family Court. TR argued that, because surrogacy was against the public policy of New York, parentage deriving from the surrogacy arrangement should not be recognized in New York. On October 4, Magistrate Rachel Parisi rejected that argument. She noted first that there is no public policy exception to the enforcement of judgments from courts in other states. Therefore, the parentage judgment was entitled to Full Faith and Credit in New York. She independently relied on a 2005 ruling that New York statutes contemplate that a court will determine parental rights and responsibilities even when a child has been born from a surrogacy arrangement. (That's the law in DC as well; one of the first second parent adoptions granted in DC, in the early 1990s, was in the case of a gay male couple whose child was born in Virginia as a result of a surrogacy arrangement.)

DP's lawyer, Steven Weissman, is quoted in today's New York Law Journal as saying that the decision is significant for the number of New Yorkers who enter surrogacy arrangements elsewhere, and especially for gay male couples who often travel to California because pre-birth orders are available there.

The case underscores the importance of obtaining a court judgment (either of parentage or adoption) any time a same-sex couple is raising a child, even if they are married or in a registered relationship (civil union or domestic partnership). And even here in DC where both women in a lesbian couple are the legal parents of any child born to one of them using donor insemination. Parentage by virtue of a state statute may be challenged elsewhere. Parentage confirmed by a court judgment is entitled to Full Faith and Credit everywhere. I know I've said this often in this blog, but it bears repeating. What seems like a legal technicality, and what may be intimidating and expensive because it requires a lawyer and a court, turns out to be the only guarantee that a child planned as the child of two parents will have two legal parents forever.