Opinion
A-00017/18
03-20-2018
In the Matter of a the Adoption of A Child Whose First Name is J. For the Petitioner, Leslie S. Deutsch, Esq.
On January 24, 2018, J.G. (hereinafter "Mr. G") filed a petition seeking to adopt his biological son, J., born on October 9, 2017. According to the petition, J. was conceived through a surrogacy arrangement in New York in which it was agreed that Mr. G would be J.'s only parent. The petition further states after transferring frozen embryos of an unknown egg donor into the surrogate's womb, Mr. G's sperm was used to artificially inseminate those embryos.
Following the decision in Matter of Baby M., 109 N.J. 396 (N.J. Sup. Ct. 1988), surrogacy was outlawed in New York. See NY Dom. Rel. L. § 121 et seq. (McKinney's 2018); see also Matter of Baby M., 109 N.J. 396 (N.J. Sup. Ct. 1988). The state of the law remains the same as it did in 1988 when surrogacy contracts were found to be against public policy. See NY Dom. Rel. L. § 122 (McKinney's 2018) ("Surrogate parenting contracts are ... contrary to ... public policy, and are void and unenforceable."); see also NY Dom. Rel. L. § 123(2)(a) (McKinney's 2018) (setting forth civil penalties); NY Soc. Serv. L. § 389 (McKinney's 2018) (setting forth criminal penalties); NY Soc. Serv. L. § 374(6) (McKinney's 2018) (proscribing "baby selling"); Itskov v. NY Fertility Institute, Inc.,11 Misc 3d 69 (2d Dep't 2006). To that end, it is well-settled that a party to a surrogacy contract may not seek a court's assistance to enforce the agreement, nor will such contract be deemed viable for any other claims arising under its arrangement. See Itskov,11 Misc 3d at 69-70. Simply stated, the Court finds that it may not validate a patently illegal surrogacy contract by approving Mr. G's adoption of J..
Surrogacy agreement aside - "Adoption is the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect of such other person." NY Dom. Rel. L. §110 (McKinney's 2018). New York State Domestic Relations Law §110 (hereinafter "§110") makes clear that there is no authority for a parent to adopt their biological child. See NY Dom. Rel. L. §110 (McKinney's 2018); see also Matter of Zoe D.K., 26 AD3d 22, 25 (4th Dep't 2005). §110 sets forth categories of persons who may adopt, and a natural parent does not fall within them. See id. To permit a biological parent to adopt their own child confers rights upon a parent which already exist. Therefore, the purpose of the adoption statute is not served. Accordingly, Mr. G's adoption of J. is unwarranted, and the Court declines to approve the adoption.
This Court is aware of only one instance when biological parents were permitted to adopt their own child under very specific facts and circumstances. See Matter of Sebastian, 25 Misc 3d 567 (NY Cty. Surrogate's Ct., 04/09/09). In Matter of Sebastian, genetic co-mothers desired to adopt their own child to ensure that their parentage would be recognized nationwide prior to the United States' Supreme Court ruling that gay marriage is legal. The New York County Surrogate's Court granted the adoption to confer legal parentage which would entitled to full faith and credit in all of the United States because, it found, it lacked jurisdiction under the law to issue orders of maternity. This is not the stated purpose of the current adoption petition.
Under Domestic Relations Law §110, an unmarried person, a married couple, a married partner of a child's biological parent, an unmarried partner of a child's biological parent, a married person who is legally separated or separated another way as set forth in the statute, and two unmarried intimate partners, may adopt. See NY Dom. Rel. L. §110 (McKinney's 2018).
Mr. G's claim that his reason to adopt J. is to be named J.'s legal father is tenuous at best. If he truly sought to be named as J.'s legal father, he would not have needed this Court's assistance to approve an adoption. Mr. G could have asked the surrogate to place his name on J.'s birth certificate, signed an acknowledgment of paternity, registered with the putative father registry, submitted to a deoxyribonucleic acid test, or filed a paternity petition. Mr. G chose not to do so. Thus, it is would appear that what Mr. G is trying to do is circumvent the adoption statute so that he can be deemed J.'s only parent on the child's birth certificate. In other words, Mr. G seeks to eliminate the name of the surrogate with whom he illegally contracted. In that regard, Mr. G is asking the Court to use the adoption statute for a purpose other than for which it was intended since he seeks to create rights where none are necessary. By asking the Court to approve J.'s adoption, Mr. G effectively asks to Court to create a legal fiction having nothing to do with J.'s best interests.
The Court notes anecdotally that, at present, Mr. G has no legal rights to have J. in his custody since he has no declaration of paternity or order of guardianship.
It is telling that Mr. G never filed for pre-certification pursuant to New York State Domestic Relations Law §115(b) prior taking custody of the child. Clearly, he never felt the need to do so since he is the child's biological father.
Notwithstanding, the Court's denial of Mr. G's adoption petition does not foreclose a remedy towards his claimed purpose. Under a best interests analysis, the standard to be applied here, an order of filiation adjudicating Mr. G to be J.'s father would achieve a just result. Orders of filiation have been entered after a DNA test, upon consent, based upon the principle of equitable estoppel, and even for a non-biological, non-adoptive parent under limited circumstances. At this point, regardless of whether Mr. G is J.'s biological father, it would appear that, under the theory of equitable estoppel, he is likely J.'s emotional father. See Matter of Shondel J. v. Mark D., 7 NY3d 320 (2006). To that end, the Family Court will entertain whatever petition Mr. G may choose to file to attain status as a legal parent of J.. ENTER: Dated: Jamaica, New York March 20, 2018 /JMH/ _____________________________________ JOHN M. HUNT, JUDGE FAMILY COURT - QUEENS COUNTY
See NY Fam. Ct. Act §418 (McKinney's 2018) (authority to order genetic marker and DNA tests); . see also NY Fam. Ct. Act §812 (McKinney's 2018) (same); Matter of Darrell J.D.J., 156 AD3d 788, 789 (2d Dep't 2017) (order of filiation entered after DNA testing confirmed party to be biological father of child).
See Matter of Buxenbaum v. Fulmer, 82 AD3d 1223, 1224 (2d Dep't 2011) (judicial notice of order of filiation entered upon consent).
See Matter of Pauline M.B. v. Arnoldo B., 130 AD3d 743 (2d Dep't 2015) (affirming order of filiation without directing paternity testing based upon long standing parent-child relationship); see Matter of Shawn H. v. Kimberly F., 115 AD3d 744 (2d Dep't 2014) (family court properly invoked equitable estoppel to preclude father's challenge to order of filiation).
Matter of A.F. v. K.H., 56 Misc 3d 1109 (Rockland Cty. Fam. Ct., May 25, 2017) (order of parentage entered for non-biological, non-adoptive parent who was already considered parent under law for custody, visitation and child support). --------