Judicial Virtuosity in a Lesbian Co-Parent Adoption Case

Domestic relations statutes have fallen so far behind the complicated reality of contemporary family life that sometimes it seems that judges faced with the new realities face a challenge worthy of a virtuoso: navigate their ways through the complexities to find a decision that makes sense, or punt by falling back on legal formalism and dismiss the case, saying the court is not in a position to address the merits.

In an April 9 ruling on an adoption petition, New York County Surrogate Court Judge Kristin Booth Glen took the virtuosic navigation route, deciding that she had jurisdiction (despite some formal roadblocks) to issue an adoption order for a lesbian co-parent who is also the biological mother (but not the birth mother) of her child.  In the Matter of the Adoption of a Child Whose First Name is Sebastian, File No. 38-08.  If this sounds strange, read on...

The parents are Ingrid and Mona.  Ingrid is a Dutch citizen who works as an international lawyer at a New York City firm.  Mona, of Somali/Yemeni heritage, had "an international upbringing" and works at the United Nations.  The women were married in The Netherlands in 2004.  They wanted to start a family, and undertook the following procedure:  Mona donated her ova, which were fertilized in vitro by an anonymous sperm donor, and then a resulting fertilized embryo was implanted in Ingrid's uterus.  The women's intent, of course, was that they would both be mothers of the resulting child, legally and emotionally and every other way.  The child was born in January 2008.  Ingrid is the birth mother, and her name is recorded on the birth certificate.  Mona is the genetic mother, but her name is not on the birth certificate.   At the time when Sebastian was born, no New York court had yet recognized a same-sex marriage.  (A few days later, however, the 4th Department decided Martinez, holding that NY would recognize a same-sex marriage contracted in Canada; presumably, NY would apply the same principles of international comity to recognize a same-sex marriage contracted in the Netherlands.)

In any event, Mona has petitioned the Surrogate's Court to adopt the child.  This presented a puzzle for Surrogate Glen.  Since when does a genetic parent have to petition to adopt her own genetic offspring?  Furthermore, since a New York court will now recognize her marriage to the birth mother, one might argue that she is already the child's legal parent, under the presumption that a child born to a married woman is the offspring of the birth mother's spouse.  But such a presumption seems counter-intuitive in the case of a same-sex female couple - unless one takes into account in vitro fertilization and gestational surrogacy (that is, surrogacy where the birth mother is not also the genetic mother, because somebody else's fertilized ovum is implanted in her uterus to commence the pregnancy).  Is this getting complicated?

Surrogate Glen pointed out that, strictly speaking, no adoption should be necessary here, and it could even be argued that an adoption would not be appropriate, since Mona is already the child's biological mother, and under recently announced procedures, should be able to secure a new birth certificate for Sebastian showing both Ingrid and Mona as parents.  The problem?  What may work in NY State may not necessarily be recognized outside the state.

With a handful of exceptions, almost every U.S. state has now either legislated against recognizing same-sex marriages or adopted constitutional amendments to the same effect, so it is not certain that if Ingrid and Mona and Sebastian were to travel outside of New York, their legal familial relationships would be automatically recognized.  (Of course, they would in Connecticut and Iowa, as of now, and perhaps in Vermont as of September 1, or maybe even in the civil union and domestic partnership jurisdictions now, but that's uncertain, as, for example, NJ's attorney general takes the position that foreign marriages are only treated as civil unions in NJ.... although perhaps the same parental status would follow there.)

In any event, argued Carol Buell, the attorney for Mona, the best way to make sure that Mona's parental relationship to Sebastian is recognized would be for the court to issue an adoption order, which would be entitled to full faith and credit when they travel outside New York.  (There are a few decisions so far holding that gay adoptions are entitled to full faith and credit, even in states that have legislated against recognition of same-sex marriages.)  

Surrogate Glen determined that there would be an equal protection violation if Mona were not allowed to have her parental rights recognized the same way that a genetic father's rights would be recognized in a filiation proceeding, for she is "similarly situated" with respect to the relevant factual issues, so there is no question that Mona can claim to be Sebastian's parent.  As a pragmatic matter, she concluded that granting the adoption was in the best interest of the child, even though such an adoption is not necessary for the status to be recognized within New York.  As a side-note, she also explained that granting the adoption order was really the only relief the Surrogate's Court could provide, since other legal devices that might be available were within the jurisdiction of the Family Court, not the Surrogate's Court.

The opinion is really extraordinary, a work of wide-ranging legal scholarship touching on many interesting subsidiary issues, and a gold mine of valuable legal research (55 footnotes, many substantive citing a wider range of sources).  And here is an example of creative judging, by contrast to the decision issued the same day by the Appellate Division, 1st Department, in Debra H. v. Janice R., 2009 NY Slip Op 02723 (April 9), which I discussed in a separate posting.  Indeed, the Debra H. ruling gives another reason why this adoption is necessary to protect the parental rights of Mona, notwithstanding her de facto, psychological and genetic motherhood of Sebastian.  It seems, at least in the 1st Department, that an adoption is the best way to ensure that if Ingrid and Mona ever decide to end their relationship, Mona would be assured if being able to maintain her parental relationship with Sebastian....  Or, do I have that backwards?  Should Ingrid also be adopting the child to whom she gave birth but to whom she bears no genetic relationship?   Oh, my!  This is getting too complicated.

Comments

[Ohio Adoption]

sperm donor that's a nice idea.. If lesbian couples haven't given the rights to adopt a child so sperm donor is the solution.

[Adoption]

This is a great article makes sense to me.